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Child Abuse Lawyer in Green Bay & De Pere, WI

Child Abuse

     Child abuse involves physical child abuse, emotional child abuse and child neglect. Criminal charges of child abuse most often involve allegations of physical child abuse.

     Physical child abuse is any mistreatment of a child that results in harm or injury and that has no ''reasonable'' explanation. Child abuse is generally divided into several categories including physical, sexual, emotional, and neglect.

Physical Child Abuse Includes:
     • Physical beatings
     • Slapping
     • Hitting
     • Burns
     • Strangulation
     • Human bites

     The child abuse law is complicated. If you are facing child abuse charges you should consult with an experienced child abuse lawyer. A common defense against charges of child abuse is the right of parents to discipline their children.

     The right of parents to direct the care, control and upbringing of their children is one of the oldest basic liberty interests recognized by the Supreme Court. The Wisconsin Supreme Court has also recognized the authority parents have over their minor children including the right to exercise such authority by confining or restraining a child in a reasonable way.

     “Parental privilege” refers to a parent’s right to control his or her child. The law has established limitations to the “parental privilege.” Wisconsin Statute §939.45(5) defines the “parental privilege.”

The only individuals that may claim the parental privilege are;

     • A parent
     • A stepparent or guardian
     • An employee of a public or private residential home, institution or
          agency in which the child resides or is confined or that provides
          services to the child
     • Any other person legally responsible for the child’s welfare in a
          residential setting.

     A live-in boyfriend or girlfriend does not qualify if he or she is not a parent and has no legal obligation to care for the child.

     The “parental privilege” only applies to conduct that is reasonable discipline of a child. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.

Wisconsin Jury Instruction 950 defines reasonable discipline as follows:
     • Reasonable force is that which a reasonable person would
          believe is necessary.
     • Whether a person would have believed the amount of force used
          was necessary and not excessive must be determined from the
          standpoint of the defendant at the time of the defendant’s acts.
     • The standard is what a person of ordinary intelligence and prudence
          would have believed in the defendant’s position under the circumstances
          that existed at the time of the alleged offense.
     • The test of unreasonableness is met at the point at which a parent
          ceases to act in good faith and with parental affection and acts
          immoderately, cruelly, or mercilessly with a malicious desire to
          inflict pain, rather than make a genuine effort to correct the child
          by proper means.
     • There is no inflexible rule that defines what, under all circumstances,
          is unreasonable or excessive corporal punishment.
     •  Rather, the accepted degree of force must vary according to the
          age, sex, physical and mental condition and disposition of the child,
          the conduct of the child, the nature of the discipline, and all the
          surrounding circumstances.

     The penalties for physical abuse of a child vary depending upon the extent of the child’s injuries.

     (a) Whoever intentionally causes great bodily harm to a child is
          guilty of a Class E felony.
     (b) Whoever intentionally causes bodily harm to a child is guilty of
          a Class H felony.
     (c) Whoever intentionally causes bodily harm to a child by conduct
          which creates a high risk of probability of great bodily harm is
          guilty of a Class F felony.

     (a) Whoever recklessly causes great bodily harm to a child is guilty
          of a Class G felony.
     (b) Whoever recklessly causes bodily harm to a child is guilty of
          a Class I felony.
     (c) Whoever recklessly causes bodily harm to a child by conduct
          which creates a high probability of great bodily harm is guilty
          of a Class H felony.

Wis. Stat. § 948.03(1) defines “recklessly” as conduct which creates a situation of unreasonable risk of harm to and demonstrates a conscious disregard for the safety of the child.

     What constitutes physical abuse of a child and not reasonable discipline depends on the facts and circumstances of each individual case. Below are some examples of cases in Wisconsin.

     Where a mother aggressively punched her daughter with a closed fist anywhere from six to nine times and was consumed with anger at the time, there was sufficient evidence to allow a reasonable jury to conclude that the defendant intentionally caused bodily harm to her daughter. State v. Kimberly B., 2005 WI App 115.

     The Wisconsin Court of Appeals ruled that the evidence of a conviction for physical abuse of a child was sufficient when the defendant struck his son with a belt, a photograph taken by an officer a day after the he struck his son showed extensive bruises on the boy’s thigh, and the examining physician testified that it would have taken “significant force” to cause the injuries. See State v. Nitka, 198 Wis. 2d 388, 542, N.W.2d 238 (Wis. Ct. App. 1995), review denied by 546 N.W.2d 469 (Wis. 1996).

Child Welfare Information Gateway

U.S. Department of Health and Human Service

     Whether you are being charged with a crime or being investigated, you need to contact one of the experienced Green Bay criminal defense attorney's at Brabazon Law Office. Your initial consultation is free.

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