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Second Degree Child Abuse in Michigan

What is the Michigan Second Degree Child Abuse law? MCL 750.136b(3)

Second Degree Child Abuse charges are extremely serious criminal charges and should not be taken lightly. If you are convicted of Second Degree Child Abuse, you will almost certainly receive a Jail sentence and may likely go to State Prison. The maximum Prison sentence for 2nd Degree Child Abuse is 10 years for a first offender, and 20 years for a repeat offender. Second Degree Child Abuse also means you'll be listed on the Michigan Child Abuse and Neglect Central Registry and identified as "perpetrator" or "perp."

DO NOT SAY A WORD TO THE POLICE! Talk with a Michigan Child Abuse Defense Attorney - immediately. Nothing can hurt your case more than your own words. Police will twist your words, misrepresent what you said, and "lose" audio and video evidence of your interrogation. Even when you repeatedly deny the Second Degree Child Abuse charges, your own words may still help get you convicted in some way.

If you are charged with Second Degree Child Abuse, you either already have or will be met with an intense investigation by Child Protective Service (CPS), a branch of the Michigan Department of Human Services (DHS). While it can hurt you not to speak with CPS, any statements you make could be used against you in the Child Abuse, Second Degree case. Think of Child Protective Services as additional "police" on the case. While the Second Degree Child Abuse charges take place in Criminal Court, you will likely also face a Child Protective Proceeding (also called Abuse/Neglect case) in Civil Court, where the government is seeking either to get "jurisdiction" over you or even to terminate your parental rights completely and place your children in a foster home.

Prain Law, PLLC, is a Criminal Defense firm that centers its focus specifically on defending those accused of crimes involving some element of assault, such as Second Degree Child Abuse.

What is Second Degree Child Abuse in Michigan? How is Child Abuse, Second Degree defined?

The Michigan Second Degree Child Abuse law, MCL 750.136b(3), states:

"(3) A person is guilty of child abuse in the second degree if any of the following apply:
(a) The person's omission causes serious physical harm or serious mental harm to a child or if the person's reckless act causes serious physical harm or serious mental harm to a child.
(b) The person knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results.
(c) The person knowingly or intentionally commits an act that is cruel to a child regardless of whether harm results.
(4) Child abuse in the second degree is a felony punishable by imprisonment as follows:
(a) For a first offense, not more than 10 years.
(b) For a second or subsequent offense, not more than 20 years."

Additionally, the Prosecutor has to prove that you are either: the parent of the child, or someone who had had "care or custody of or authority over the child when the abuse allegedly happened, regardless of the length of time the child was cared for by, in the custody of, or subject to the authority of that person." This is the same as other degrees of Child Abuse in Michigan.

As you can see, Second Degree Child Abuse covers things that are closer to "Neglect" than "Abuse."

There are Four Distinct Ways to be Convicted of Second Degree Child Abuse in Michigan.

The Michigan Second Degree Child Abuse law, MCL 750.136b(3) is the most confusing of all of Michigan's Child Abuse laws. This is because reading the statute alone does not give the full picture of the law as it would be read to a Jury deciding your case if you went to Trial. To get the full picture, we must look at Second Degree Child Abuse Jury Instruction. Here are the four theories of Second Degree Child Abuse:

  1. Willful Failure to Provide, or Abandonment ("Omission"): meaning the accused willfully failed to provide food, clothing, or shelter necessary for the welfare of the child or abandoned the child, and as a result, the child suffered "serious physical harm" or "serious mental harm."
  2. Reckless Act: meaning the accused acted recklessly and as a result, the child suffered "serious physical harm."
  3. Act Likely to Cause Serious Harm: meaning the accused knowingly or intentionally acted in a way to likely cause serious physical or mental harm to the child, regardless of whether such harm actually resulted.
  4. Cruel Act: meaning the accused knowingly or intentionally acted cruelly to the child. “Cruel” means brutal, inhuman, sadistic, or tormenting, regardless of whether harm results.
CLICK HERE for Brian J. Prain's related articles on Michigan Child Abuse Law...

Definition of "Omission" in Michigan's Second Degree Child Abuse law.

As mentioned above, "omission" is defined as "a willful failure to provide food, clothing, or shelter necessary for a child's welfare or willful abandonment of a child."

Definition of "Serious Physical Harm" in Michigan Second Degree Child Abuse law.

In Michigan, "Serious Physical Harm" means "any physical injury to a child that seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut."

Definition of "Serious Mental Harm" in Michigan Second Degree Child Abuse law.

In Michigan, "Serious Mental Harm" means "an injury to a child’s mental condition that results in visible signs of an impairment in the child’s judgment, behavior, ability to recognize reality, or ability to cope with the ordinary demands of life."

What is the Defense of Parental Discipline to Second Degree Child Abuse Charges?

A person accused of Second Degree Child Abuse in Michigan may raise the defense of "Parental Discipline" under MCL 750.136b(9), which states:

"(9) This section does not prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force."

But this does not mean that any amount of force may be used. The law allows only force that is reasonable. What force is "reasonable" is up to a Jury to decide on a case-by-case basis. However, as long as there is some evidence of Parental Discipline as a defense, the accused is not required to prove that their actions were reasonable as discipline. The Prosecution must prove beyond a reasonable doubt that the force used was not reasonable as discipline. If they cannot, the accused is entitled to a verdict of NOT GUILTY of Second Degree Child Abuse.

What is the Defense of Reasonable Response to an Act of Domestic Violence to Second Degree Child Abuse Charges?

There is yet another defense that can be raised to these charges (in addition to Self-Defense, which is a complete defense to all crimes).

A person accused of Child Abuse, Second Degree in Michigan may also raise the defense of "Reasonable Response to Act of Domestic Violence" under MCL 750.136b(10), which states:

"(10) It is an affirmative defense to a prosecution under this section that the defendant's conduct involving the child was a reasonable response to an act of domestic violence in light of all the facts and circumstances known to the defendant at that time. The defendant has the burden of establishing the affirmative defense by a preponderance of the evidence. As used in this subsection, "domestic violence" means that term as defined in section 1 of 1978 PA 389, MCL 400.1501."

However, unlike the defense of "Parental Discipline," the burden is on the defendant to prove this defense by a preponderance of the evidence. This means the evidence must persuade the Jury that it is more likely than not that the conduct was a reasonable response to an act of domestic violence, given all of the facts and circumstances known to the accused at the time. If the accused proves this by a preponderance of the evidence, they are entitled to a verdict of NOT GUILTY of Second Degree Child Abuse.

Does the Holmes Youthful Trainee Act ("HYTA") apply to First Degree Child Abuse?

Yes, those who are convicted of Child Abuse, Second Degree are eligible forHYTA.

The Michigan Holmes Youthful Trainee Act, MCL 762.11, allows a person between age 17 and 21 (such as a young babysitter) to avoid being "convicted" and having a permanent record. To discuss this option if you are between age 17 and 21, contact a Michigan Child Abuse Defense Attorney.

What is the Sentence for Second Degree Child Abuse? Will I go to Jail or Prison for Second Degree Child Abuse in Michigan?

The Michigan Second Degree Child Abuse law makes it punishable by imprisonment for up to 10 years in Prison for a first offense, and up to 20 years in Prison for a second or subsequent offense.

If convicted of Second Degree Child Abuse in Michigan under MCL 750.136b(3), you are likely to get Jail time or perhaps Prison time. Your actual Sentence will be a result the Michigan Sentencing Guidelines. Don't get convicted in the first place.

Contact Our Detroit Domestic Violence Attorney Today

Prain Law, PLLC is led by a Detroit domestic violence lawyer who is committed to fighting for the rights of those who have been accused of exaggerated or entirely false crimes. As the defendant, it is important you don’t waste any time in scheduling an initial consultation with a representative of our firm. You won’t regret having us on your side.

If you are interested in speaking to a member of our team, please don’t hesitate to contact us by calling (248) 731-4543 at your earliest convenience.

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