THE DEGREES OF CRUELTY TO CHILDREN PART 2
For the last two weeks, I’ve been summarizing and explaining the crime of cruelty to children. This week I’m going to finish up this series by discussing cruelty to children in the third degree. This crime is a misdemeanor and is the least severe of the potential cruelty to children charges. However, people still need to be aware of what constitutes the offense of cruelty to children in the third degree and the potential consequences.
Under O.C.G.A. § 16-5-70(d), any person commits the crime of cruelty to children in the third degree when 1) such person, being the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery; or 2) such person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery. For the first conviction and second conviction of cruelty to children in the third degree, a person is punished for a misdemeanor. This means the potential penalty is up to 12 months in jail or on probation. Upon a third or subsequent conviction for this crime, a person is punished as for a felony and faces a potential sentence of from 1 year up to 3 years in jail or on probation.
A few important things stand out to me in this statute. First, the law is clear that the “primary aggressor” is the person that will be charged with cruelty to children in the third degree. This means that if a husband and a wife get into a physical altercation, then only the spouse that started the fight in front of or in ear shot of the children is going to be charged and prosecuted. This statute does not punish a person who is lawfully defending themselves, even if their defense occurs in the presence of kids. Second, a person could be charged with this offense even if a child does not actually see the forcible felony, battery or family violence battery. Notice that the statute uses the phrase “sees or hears the act.” An example would be a situation where two people engage in a physical altercation inside of a house in which children are present and the children hear the fight. So it doesn’t matter that the children are in the other room and never see any punches thrown. Finally, notice that the statute uses the language “any person.” An altercation witness by children does not have to be between a mom and a dad of the children. In fact, the person involved in the forcible felony, battery or family violence battery does not have to be related to the child at all. If a complete stranger walked into a house and slapped a child’s mother or father in front of the child, then that person has committed cruelty to children in the third degree, among other crimes.
Again, this analysis merely scratches the surface of this particular crime. If this is an offense that you or a loved one is facing, then you should contact a criminal defense attorney immediately.
Jeffrey E. Johnston is a local attorney licensed to practice in Georgia. His practice focuses primarily on Criminal Defense and Personal Injury law. His law firm can be reached at (706) 869-8171 or by completing the contact form.