Abuse under California law is covered by several sections depending on the victim and the severity of the injuries. In California, criminal charges for abuse of another person protect the vulnerable including children, the elderly or dependent adults, as well as spouses or intimate partners. This article will cover child abuse and elder abuse. If you have been charged with a crime involving allegations of violence against a spouse or significant other, you should visit our separate page on domestic violence charges.
If you are a parent in California, it can be difficult to know what counts as illegal child abuse under the law. Physical punishment of children used to be more widely accepted and commonplace, especially with older generations. If your children act out and you spank them with a belt, have you committed a crime in California? Read our section on child abuse below to learn more about the specifics of this crime.
Abuse against the elderly and the disabled is also widespread in California. Continue reading to understand what exactly qualifies as elder abuse and what the consequences are if you are convicted. Those consequences can be life-altering, so it is important to discuss your case with a competent criminal defense attorney right away with you are charged with an abuse-related crime.
Attorney for Crimes of Abuse in Ventura, CA
Jay Leiderman Law has handled countless different California crimes ranging in seriousness from minor drug crimes to murder. Jay Leiderman is a board-certified specialist in Criminal Law with skill and knowledge gained through years of experience and can assist you every step of the way if you or a loved one has been charged with a crime of abuse.
Our office is in downtown Ventura, but we work with clients in Thousand Oaks, Simi Valley, Oxnard, Port Hueneme, Ojai, Moorpark, Fillmore, Camarillo, Santa Paula and elsewhere in Ventura County. Call us today at (805) 654-0200 to schedule a free and confidential strategy session to discuss the best course of action for your case.
Overview of Abuse Law in California
Types of Abuse Under the California Penal Code
The most commonly prosecuted crimes for child abuse in California include:
- Misdemeanor child abuse (Pen. Code, § 273a(b))
- Inflicting physical punishment on a child (Pen. Code, § 273d(a))
- Child abuse likely to produce great bodily harm or death (Pen. Code, § 273a(a))
- Assault causing death of child (Pen. Code, § 273ab(a))
Criminal charges for the abuse of the elderly or a dependent adult include:
- Abuse of elder or dependent adult (Pen. Code, § 368(c))
- Abuse of an elder or dependent adult likely to produce great bodily harm or death (Pen. Code, § 368(b)(1))
The most commonly prosecuted crimes related to spousal abuse or the abuse of a domestic or intimate partner include:
- Simple Battery against a spouse, cohabitant, or fellow parent (Pen. Code, § 243(e)(1))
- Inflicting injury on a spouse, cohabitant, or fellow parent resulting in traumatic condition (Pen. Code, § 273.5(a))
Child abuse is defined in Penal Code Section 273(d). According to CALCRIM 822, which are the jury instructions commonly given in conjunction with Sec. 273(d), child abuse has three essential “elements” that the prosecution must prove to convict you:
- A person willfully (i.e. on purpose) inflicts “cruel or inhuman corporal punishment” on a child or willfully inflicts an injury, AND
- The punishment or injury causes the child a “traumatic condition” AND
- The defendant must not have been reasonably disciplining a child
“Corporal” means involving the body, so simple emotional or verbal punishment is not enough – actual physical acts must have taken place. “Cruel or inhuman” is not specifically defined, and whenever this is the case in the Penal Code, juries are typically instructed to interpret the words using their normal, everyday meaning. In practice this means that as long as the punishment is physical, courts have wide latitude to decide for themselves if a particular punishment was “cruel or inhuman”.
A “child” is defined as anyone under 18, unless legally emancipated. A “traumatic condition” is any wound or injury, no matter if it is minor or serious, that is caused by the direct application of physical force. As long as the act substantially contributed to the injury in a way that most people would find predictable, then the act “caused” the injury even if it was not the only contributing factor.
Child abuse is a “wobbler” that can be charged as either a misdemeanor or a felony. Felony child abuse carries a penalty of 2, 4, or 6 years in state prison or jail and a $6,000 fine. Misdemeanor child abuse carries an identical fine plus up to one year in county jail.
In addition, 4 years can be added for any prior child abuse conviction within 10 years. Probation may be granted but has a 3-year minimum duration. A protective order is required if probation is granted that may include stay-away provisions preventing contact with the alleged victim. You must also complete 1 year or more of a counseling program for abusers. Abstinence from drug and alcohol combined with randomized testing can be mandated for the entire term if substance use was involved.
One of the fastest-growing area of crime in the United States is dependent adult and elder abuse, especially for financial abuse involving separating a vulnerable adult from their money, assets or property.
When it comes to the frequency of elder abuse cases, California leads the nation. In fact, nearly 11% of all dependent adult and elder abuse cases within the United States come from California. Financial crimes against the elderly are expected to increase even more as the Baby Boomer generation ages.
In California, the primary way criminal charges are filed for allegations involving the abuse of the elderly or a dependent adult include:
- Abuse of elder or dependent adult under Pen. Code, § 368(c); or
- Abuse of an elder or dependent adult likely to produce great bodily harm or death under Pen. Code, § 368(b)(1).
Elders are defined as those 65 years of age or older. A dependent adult is someone 18-64 who has a diminished ability to carry out normal activities due to disability, age, or health status. Under Penal Code Section 368, elder abuse occurs when a defendant:
- Willfully (on purpose) directly causes or indirectly allows an elderly or dependent adult to suffer, OR
- Inflicts unreasonable physical pain or mental suffering on the person, OR
- Permits an elderly or dependent adult to be put in a situation in which their health is endangered
Elder/dependent adult abuse is a “wobbler” that can be charged as either a felony or a misdemeanor. For misdemeanors, you face up to 1 year in county jail and a $6,000 fine for a first offense. For felonies, you face up to $10,000 in fines and a base sentence of 2-4 years in state prison.
If “great bodily harm” (i.e. non-trivial, significant injury) or death resulted, you can get up to 7 years in state prison added to your sentence. Other direct consequences can include victim restitution payments and mandatory counseling.
What is Elder Abuse?, California Advocated for Nursing Home Reform – A helpful article that further clarifies what constitutes elder abuse. Invluded is information about warning signs and how to report suspected abuse. The different definition of elder abuse used in civil (not criminal) lawsuits is also outlined in detail.
Child Abuse Identification and Reporting Guidelines, California Department of Education – This site discusses the warning signs for different kinds of abuse involving children and how to report it. There is a section on mandatory reporting for teachers, coaches, and other officials who have an obligation to report suspected abuse.
Ventura Criminal Defense Lawyer for Abuse Crimes
If you were accused of a crime involving abuse of a child, elderly person, or dependent adult, then contact an experienced criminal defense attorney at Jay Leiderman Law. These crimes have severe penalties that can haunt you forever and are highly stigmatized and looked down upon even compared to other serious crimes. You will want to do whatever you can to avoid a conviction.
Abuse crimes often involve complicated financial, property, or health care issues that arise within a dysfunctional family dynamic, and because of family turmoil the chances for a false accusation are high. Contact us to discuss the charges pending against you, possible defenses to fight the charges, and the best ways to fight for an outright dismissal.
Call (805) 654-0200 for a free, confidential consultation.