Recent Posts in malicious wounding Category
| July 12, 2011 |
| What are Virginia child abuse laws? |
| Posted By Shawn Cline |
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I frequently meet with distraught parents who have been charged with child neglect or abuse. In most cases, these are loving parents who either lacked the skills and resources to effectively care for their children; or in many cases these are parents being accused of something they simply did not do. These parents and guardians are confused and scared, so it is important first and foremost to have an understanding of the Virginia Code as it relates to child abuse and neglect. The good news is that I am going to go over much of it in this article. The bad news is that it is still terribly complex (as you will no doubt see). The bottom line is that if you are facing any charge in Virginia relating to abuse or neglect of a child, you need to contact us right away. That being said, here is the rundown:
The Commonwealth's Attorney always has the liberty to charge crimes against children under the general statutes; be it Murder in any degree, assault and battery,
malicious wounding, or any of a myriad of
sexual abuse charges. These types of charges are discussed elsewhere on this website, so I will not go into them further here. Instead, I want to focus on the types of charges that are specifically directed at abuse and neglect of children.
The most serious child abuse charge is under Virginia Code Section 18.2-371.1, Abuse and Neglect of Children. Within this code section are two different offenses, the more serious is a class 4 felony, carrying up to 10 years in the penitentiary. The lesser offense is a class 6 felony, carrying up to 5 years in the penitentiary. Both offenses require that the accused be the "parent, guardian, or other person responsible for the care of a child under the age of 18". So you can see one possible defense right there, if you do not fit that definition under the law, you cannot be convicted of either offense (although you may still be guilty of another offense, such as assault and battery). The code requires that the accused "willful act or omission or refusal to provide any necessary care... causes serious injury to the life or health of such child" to be guilty of the class 4 felony. The code defines "serious injury" as including, but not limited to "(1) disfigurement, (2) a fracture, (3) a severe burn or laceration, (4) mutilation, (5) maiming, (6) forced ingestion of dangerous substances, (7) life-threatening internal injuries." Unless the accused's act or failure to act directly causes one of these conditions or a comparable condition, they cannot be convicted of the class 4 felony.
That being said, the code allows for a lesser offense within the same statute for a class 6 felony. The code provides that any parent, guardian, etc. whose "willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life shall be guilty of a class 6 felony". As you can see, there is no actual injury required under this part of the code. As long as the responsible adult's conduct showed reckless disregard for the child's life, they can be convicted of this less severe (but still very serious) charge.
As you can see, there are two theories for conviction for both of these felony charges. One is a specific act, the other is a failure to act. In other words, it is not always a defense to say "I didn't do anything". The idea is that a responsible adult has an obligation to act under certain circumstances. Doing nothing is sometimes not acceptable. A good way of looking at this would be to think of a firearm in the home. A responsible parent ought to secure firearms in the home, particularly where the children are of an age where they may be curious but not yet capable of understanding the consequences of using a firearm. For this reason, a parent might be charged under one of these statutes for failure to secure a firearm if the result of such failure was the death of a third party at the hands of an armed child. This is just an example, and should not be considered as controlling or limiting in any way.
Cases involving neglect and abuse of children are not always felonies. In fact, in most child abuse and neglect cases emerge as misdemeanors. Code Section 18.2-371 is the basic Contributing to the Delinquency of a Minor statute in Virginia. This statute makes it a class 1 misdemeanor, punishable by up to 12 months in jail, for any person over 18 years of age who "willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected". This is still a serious offense, but far less serious than the felonies discussed previously. These cases typically involve a lack of supervision, or perhaps even active facilitation, on the part of an adult which causes a child to engage in illegal or dangerous conduct. These cases often involve allowing minors access to drugs or alcohol.
There is a final way in which these types of charges can be brought in Virginia, although it is rarely used. Within the Child Labor section of the code is Section 40.1-103, which prohibits any "person employing or having custody" of a child causing or permitting the life of the child to be endangered or the health of the child to be injured. Violation of this section is a class 6 felony, punishable by up to 5 years in prison. This is an unusual charge, given that it falls under the child labor prohibitions, but it is brought from time to time.
As you can see, there are a myriad of ways that Virginians can be charged with abuse or neglect of a child. These cases are exceedingly difficult, because invariably the parents or guardians love their children and the best for them. If you are facing these types of charges, do not wait... contact us right away. We are here to help!
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| June 15, 2011 |
| What is the difference between malicious wounding and assault? |
| Posted By Shawn Cline |
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I frequently meet with clients who are facing charges of malicious wounding, which is a Class 3 felony, who are wondering why they were not charged with simple assault, which is a Class 1 misdemeanor. Obviously, the difference in potential punishments is huge (20 years in state prison for malicious wounding versus 12 months in jail for assault), but what they want to know is how the offenses themselves are different.
Let's start at the lowest level, with simple assault under 18.2-57. If you read the code, you will notice that it doesn't really define the terms "assault" or "battery". That is because these are what are known as "common law" offenses, in other words, offenses dating back to our legal system's English roots. An assault is basically an offer to do violence to another, coupled with the means by which to do so. A battery is any unwanted touching of another. So an assault does not require physical contact at all, simply an expressed offer to engage in unwanted physical contact. Battery, however, does require unwanted physical contact.
Assault in Virginia can be a felony in certain circumstances, for example a third offense assault against a family member (see 18.2-57.2) or assault on a law enforcement officer. That being said, assault is usually a Class 1 misdemeanor punishable by up to 12 months in jail.
Things get far more serious when the Commonwealth's Attorney decides that the facts of a physical altercation rise above a simple assault and battery, and they elect to charge an individual with malicious wounding under 18.2-51. Malicious wounding is different from assault in several ways (beyond the staggering difference in potential punishments). Malicious wounding is not a common law offense, so its elements are described in the statue itself. The code requires that a defendant "shoot, stab, cut, or wound" or by any means cause "bodily injury" to another person "maliciously" and "with the intent to maim, disfigure, disable, or kill" to be convicted of this offense. For purposes of this statute, bodily injury can be inflicted simply by striking with fists or other body parts, in other words, a weapon need not be used. If the defendant engages in this conduct but without "malice", then he is guilty of unlawful wounding (a Class 6 felony), instead of malicious wounding. Malice is a complicated concept, but it is largely centered around that conduct which is calculated and deliberate, with minimal provocation.
There is an even more serious version of malicious wounding, referred to as aggravated malicious wounding under 18.2-51.2. This offense is a Class 2 felony, punishable by 20 years to life in prison. Aggravated malicious wounding is the same as malicious wounding, with the additional element that the victim must be "severely injured and is caused to suffer permanent and significant physical impairment."
Returning to the initial question (and the one that comes up most often) the difference between simple assault and malicious wounding really lies in the state of mind of the defendant. The question for the jury is whether the individual acted with the intent to cause bodily injury, and whether the individual acted with malice. If the person acted with intent to cause bodily injury, and did so with malice, then he is guilty of malicious wounding. If the person acted without malice, then he is guilty of unlawful wounding. Finally, if the person acted without the intent to cause injury at all, he would be guilty only of assault and battery.
As you can see, there are a myriad of issues involved with these kinds of cases, far more than I can discuss here. If you have been charged with a assault or with malicious wounding, contact us right away. The stakes are high, and time is of the essence in building your defense! |
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