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Child Abuse and Colorado Domestic Violence Law – When A Child Witnesses Domestic Violence – And Child Abuse Charges Are Added

By Colorado Domestic Violence Defense Lawyer – H. Michael Steinberg

Child Abuse and Colorado Domestic Violence Law – When A Child Witnesses Domestic Violence – And Child Abuse Charges Are Added – Colorado Child Abuse and Colorado Domestic Violence Law has begun to focus on the impact of having a child in the room or in the home at the moment an act domestic violence under Colorado law is occurring.

Child Abuse and Colorado Domestic Violence Law

Child Abuse and Colorado Domestic Violence Law

Police are now adding a charge of “child abuse” to the more common domestic violence charges of harassment and third degree assault which are the primary crimes that result form Colorado domestic violence investigations. The additional charge and potential entry of the Colorado child abuse registry – TRAILS system  – not only greatly changes the approach of the DA when analyzing how to resolve the case by a plea bargain – but it can permanently impact an person’s employment future because of the impact of the label “child abuser.”

Colorado Domestic Violence and Child Abuse Charges – A Colorado Criminal Defense Lawyer’s Opinion

Colorado criminal defense lawyers know that – based on well established research – there is strong un-controverted social science evidence that children may be affected by violence they witness in the home. This – in the eyes of the law – makes them direct or indirect victims of the domestic violence of the adults present. 

When this occurs it is almost always the result of the inadvertent and unlucky fact that the child is suddenly present when an argument or fight erupts. …that is – the child somehow arrives home or wakes up unexpectedly.

The harm caused by witnessing domestic violence may have a lifetime impact on the child from the auditory, visual, or inferred violence including the aftermath of violence such witnessing the temporary or permanent physical injuries on family members or loved ones and or the accompanying physical damage to the home or other property.

Why Is A Colorado Child Abuse Charge A Potential “Game Changer” In A Domestic Violence Case?

District Attorneys and Judges in Colorado – in sentencing individuals convicted of child abuse and the more common domestic violence charges will often lecture the defendant on the emotional and developmental difficulties suffered by child victims.  In plea bargaining – if that occurs – these Colorado  District Attorneys and Judges at the sentencing hearing – take these situations very seriously and will add enhancements to both treat – through therapy and punish – through possible jail time.

Child Abuse and Colorado Domestic Violence Law  – What Is Child Abuse In The Context Of An Act Of Domestic Violence?

A child – to be a witness and therefore a victim during an act of domestic violence – must in some capacity – “perceive the act of domestic violence in order to support the additional charge.”  A child is usually “physically present” when that child has the capacity to see or hear the act or acts of domestic violence. There are no – (under Colorado criminal law) – spatial, temporal, or other limitations on the nature of how that perception occurs.

The additional charge of child abuse in Colorado – is NOT a mandatory sentencing enhancer for the domestic violence charge – the crime of child abuse is separately brought and tried – and the conviction – if it happens – requires separate sentencing.

Colorado Misdemeanor & Felony Child Abuse Charges

In a nutshell then:

Child abuse – under Colorado law – involves “an injury to a child’s life or health, or permitting a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health, or engaging in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or causes serious bodily injury to a child.”

The law – reprinted in it’s entirely below as of 2013 – provides for several ways in which child abuse may occur, and is therefore VERY comprehensive and broad in scope.

The crime of child abuse in Colorado – can range from a Class 2 felony to a Class 1 misdemeanor. The statutory set up or “scheme” enhances the possible sentence based on the degree of – and extent of – “injury” to the child.

Child Abuse – Emotional Abuse As A Result Of A Colorado Domestic Violence Case

In most Colorado misdemeanor domestic violence cases where a child is a perceiving and indirect victim the abuse is considered “emotional.” 

Emotional abuse is defined in CRS 19-1-103(1)(a)(IV) as, “ Any case in which a child is subjected to emotional abuse and means “means an identifiable and substantial impairment of the child’s intellectual or psychological functioning or development or a substantial risk of impairment of the child’s intellectual or psychological functioning or development.”

For Colorado prosecutors – while emotional abuse may seem difficult to prove – jurors and judges – the fact finders in a criminal trial – accept the research that this kind of damage can be very harmful to children in the long-term.  In proving that emotional abuse of a child has occurred, there is inferred that a parent or caretakers abuse on another person in the home has a substantial risk of impairment to the child as a result of the violence.

Courts Almost Always Order Mental Health Treatment For the Child Victim And The Defendant

In sentencing persons in this situation – most jurisdictions – including judges in all of Colorado’s courts  – require those convicted of child abuse – domestic violence – to engage in therapy such as parenting classes – AND to pay for any therapy or other mental health counseling that a child victim may require.  Obviously – in addition – the convicted person must – under Colorado law –   also undergo mandatory domestic violence treatment.

Here Is The Complete Law In Colorado On Misdemeanor & Felony Child Abuse

Child Abuse (18-6-401)

1.(a) A person commits child abuse if such person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.

 (b) (I) Except as otherwise provided in subparagraph (III) of this paragraph (b), a person commits child abuse if such person excises or infibulates, in whole or in part, the labia majora, labia minora, vulva, or clitoris of a female child. A parent, guardian, or other person legally responsible for a female child or charged with the care or custody of a female child commits child abuse if he or she allows the excision or infibulation, in whole or in part, of such child’s labia majora, labia minora, vulva, or clitoris.

 (II) Belief that the conduct described in subparagraph (I) of this paragraph (b) is required as a matter of custom, ritual, or standard practice or consent to the conduct by the child on whom it is performed or by the child’s parent or legal guardian shall not be an affirmative defense to a charge of child abuse under this paragraph (b).

 (III) A surgical procedure as described in subparagraph (I) of this paragraph (b) is not a crime if the procedure:

(A) Is necessary to preserve the health of the child on whom it is performed and is performed by a person licensed to practice medicine under article 36 of title 12, C.R.S.; or

(B) Is performed on a child who is in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed to practice medicine under article 36 of title 12, C.R.S.

 (IV) If the district attorney having jurisdiction over a case arising under this paragraph (b) has a reasonable belief that any person arrested or charged pursuant to this paragraph (b) is not a citizen or national of the United States, the district attorney shall report such information to the immigration and naturalization service in an expeditious manner.

 (c) (I) A person commits child abuse if, in the presence of a child, or on the premises where a child is found, or where a child resides, or in a vehicle containing a child, the person knowingly engages in the manufacture or attempted manufacture of a controlled substance, as defined by section 18-18-102 (5), or knowingly possesses ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the product as an immediate precursor in the manufacture of a controlled substance. It shall be no defense to the crime of child abuse, as described in this subparagraph (I), that the defendant did not know a child was present, a child could be found, a child resided on the premises, or that a vehicle contained a child.

 (II) A parent or lawful guardian of a child or a person having the care or custody of a child who knowingly allows the child to be present at or reside at a premises or to be in a vehicle where the parent, guardian, or person having care or custody of the child knows or reasonably should know another person is engaged in the manufacture or attempted manufacture of methamphetamine commits child abuse.

 (III) A parent or lawful guardian of a child or a person having the care or custody of a child who knowingly allows the child to be present at or reside at a premises or to be in a vehicle where the parent, guardian, or person having care or custody of the child knows or reasonably should know another person possesses ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the product as an immediate precursor in the manufacture of methamphetamine commits child abuse.

2.In this section, “child” means a person under the age of sixteen years.

3.The statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for a violation of this section.

4.No person, other than the perpetrator, complicitor, coconspirator, or accessory, who reports an instance of child abuse to law enforcement officials shall be subjected to criminal or civil liability for any consequence of making such report unless he knows at the time of making it that it is untrue.

5.Deferred prosecution is authorized for a first offense under this section unless the provisions of subsection (7.5) of this section or section 18-6-401.2 apply. …

7.(a) Where death or injury results, the following shall apply:

(I) When a person acts knowingly or recklessly and the child abuse results in death to the child, it is a class 2 felony except as provided in paragraph (c) of this subsection (7).

(II) When a person acts with criminal negligence and the child abuse results in death to the child, it is a class 3 felony.

(III) When a person acts knowingly or recklessly and the child abuse results in serious bodily injury to the child, it is a class 3 felony.

(IV) When a person acts with criminal negligence and the child abuse results in serious bodily injury to the child, it is a class 4 felony.

(V) When a person acts knowingly or recklessly and the child abuse results in any injury other than serious bodily injury, it is a class 1 misdemeanor; except that, if the underlying factual basis of the child abuse, which would constitute a misdemeanor, has been found by the trier of fact to include one of the acts described in paragraph (e) of this subsection (7), subsequent to a prior conviction under this section, then it is a class 5 felony.

(VI) When a person acts with criminal negligence and the child abuse results in any injury other than serious bodily injury to the child, it is a class 2 misdemeanor; except that, if the underlying factual basis of the child abuse, which would constitute a misdemeanor, has been found by the trier of fact to include one of the acts described in paragraph (e) of this subsection (7), subsequent to a prior conviction under this section, then it is a class 5 felony.

(b) Where no death or injury results, the following shall apply:

(I) An act of child abuse when a person acts knowingly or recklessly is a class 2 misdemeanor; except that, if the underlying factual basis of the child abuse, which would constitute a misdemeanor, has been found by the trier of fact to include one of the acts described in paragraph (e) of this subsection (7), subsequent to a prior conviction under this section, then it is a class 5 felony.

(II) An act of child abuse when a person acts with criminal negligence is a class 3 misdemeanor; except that, if the underlying factual basis of the child abuse, which would constitute a misdemeanor, has been found by the trier of fact to include one of the acts described in paragraph (e) of this subsection (7), subsequent to a prior conviction under this section, then it is a class 5 felony.

(c) When a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child, such person commits the crime of murder in the first degree as described in section 18-3-102 (1) (f).

(d) When a person commits child abuse as described in paragraph (c) of subsection (1) of this section, it is a class 3 felony.

(e) If a person commits child abuse by engaging in one of the following acts, then such person shall be punished for a second or subsequent conviction as provided in subparagraph (V) or (VI) of paragraph (a) of this subsection (7) or as provided in subparagraph (I) or (II) of paragraph (b) of this subsection (7):

 (I) A continued pattern of conduct that results in malnourishment or lack of proper medical care of the child;  (II) A continued pattern of cruel punishment or unreasonable isolation or confinement of the child;  (III) Repeated threats by such person of harm or death to the child or to a significant person in the child’s life, which threats are made in the presence of the child;  (IV) A continued pattern of acts of domestic violence committed by such person, as that term is defined in section 18-6-800.3, in the presence of the child; or  (V) A continued pattern of extreme deprivation of hygienic or sanitary conditions in the child’s daily living environment.

(7.3) Felony child abuse is an extraordinary risk crime that is subject to the modified presumptive sentencing range specified in section 18-1.3-401 (10). Misdemeanor child abuse is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

(7.5) If a defendant is convicted of the class 2 or class 3 felony of child abuse under subparagraph (I) or (III) of paragraph (a) of subsection (7) of this section, the court shall sentence the defendant in accordance with section 18-1.3-401 (8) (d). … 9. If a parent is charged with permitting a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health, pursuant to paragraph (a) of subsection (1) of this section, and the child was seventy-two hours old or younger at the time of the alleged offense, it shall be an affirmative defense to such charge that the parent safely, reasonably, and knowingly handed the child over to a firefighter, as defined in section 18-3-201 (1), or to a hospital staff member who engages in the admission, care, or treatment of patients, when such firefighter is at a fire station or such hospital staff member is at a hospital.

Child Abuse and Colorado Domestic Violence Law

A Denver Colorado Criminal Defense Lawyer

The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer who will provide you with a free initial case consultation to evaluate your legal issues and answer your questions with an honest assessment of your options.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases. Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado including the city and county courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving …Child Abuse and Colorado Domestic Violence Law.  


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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