Reprinted with permission of Georgia Bar Journal. Originally published in December, 2001.
For original article see http://GABar.org/pdf/gbj/dec01.pdf, page 8.

A. INTRODUCTION

Georgia is the only state in the country with no specific criminal child endangerment statute, and presently before the 2002 Georgia General Assembly is House Bill 453, drafted to create such an offense. ¹ This article analyzes the issues surrounding the possible enactment of this proposed legislation.

For purposes of this review, a child endangerment statute shall be defined as a law creating a criminal offense, either misdemeanor or felony, which sets a standard of criminal negligence and criminal liability, for conduct or omission of conduct towards a child that creates a substantial risk of harm to the child. The statutory definition of criminal negligence towards a child specifies or implies a legal duty that has been breached by a person who has custody and control over the child placed at risk. How the Georgia General Assembly defines the legal duty, the risk of danger a child faces, the mens rea required to create criminal liability, and whether there shall be statutory exemptions for specific kinds of conduct, are questions the courts will review carefully.

B. CHILD ENDANGERMENT STATUTES IN OTHER STATES

For the purpose of describing and categorizing statutes, the definition of a child endangerment statute as set forth above is stated broadly, and different states have obviously formulated different approaches to creating criminal liability for endangering a child. Some states have enacted statutes using language that specifically criminalizes endangering a child, generally defining endangerment as recklessly or with criminal negligence subjecting a child to a substantial risk of harm.² Other states have enacted criminal child abuse statutes, that generallydefine child abuse broadly to include endangerment. ³ Some states have enacted wholly separate statutes for endangerment and for abuse. ⁴ While others have used different provisions of a single statute to create separate offenses for endangerment and abuse. ⁵ And still others have enacted only one provision permitting a charge of either endangerment or abuse in the alternative. ⁶

Most states specifically include omission or failure of a duty to protect children among the lists of prohibited behavior.⁷ States use “omission statutes” to punish not only the perpetrators of abuse, but also any person who fails to fulfill his or her duty to protect a child from abuse.⁸ Under most statutes, those subject to punishment for omission are limited to parents, guardians or other persons having care, custody or control of a child. By criminalizing omissions, these statutes have the effect of creating affirmative duties for parents to protect their children from acts of abuse and neglect, as well as from risks of harm. ⁹

C. GEORGIA’S CURRENT CRIMINAL LAW RELATING TO CONDUCT TO CHILDREN

Georgia is the only state that has not enacted a child endangerment statute that can fairly be defined in any of the foregoing categories. ¹⁰ Georgia has enacted statutes that have been used to prosecute conduct relating to criminal acts against children, and part of the public policy discussion is whether there is a need for an additional criminal statute that defines specifically child endangerment. Reckless conduct (O.C.G.A. § 16-5-60(b)), involuntary manslaughter (O.C.G.A. § 16-5-3(a)), contributing to the deprivation of a minor (O.C.G.A. § 16-12-1(b)(3)), and cruelty to children (O.C.G.A. § 16-5-70(b)) are frequently cited as providing sufficient statutory basis for prosecuting individuals who harm children. Proponents of a specific child endangerment statute argue first, that current laws do not create liability for criminal negligence specifically directed towards a child. Second, the proponents argue that the current Georgia statutes require proof of malice, an evidentiary standard that is difficult to meet in cases relating to breach of a custodial duty. Finally, in relation to O.C.G.A. § 16-12-1(b)(3), contributing to the deprivation of a minor, proponents argue that the only individuals who may be charged are the parent or guardian, and not others who have custody and control of a child.

In addition to arguing that statutes already exist to protect children, opponents of a specific criminal child endangerment statute also argue that the state cannot define criminal negligence to children without criminalizing accidents. It is politically difficult to vote to punish a law-abiding parent who has lost or injured a child, and this political difficulty mirrors the constitutional difficulty of arguments of arbitrary enforcement and vagueness, discussed more fully below.

Proponents of the need for a criminal child endangerment statute cite Hall v. State¹¹ as one example of the weakness of Georgia’s reckless conduct statute for the prosecution of conduct of an adult who harms a child. O.C.G.A. § 16-5-60(b) provides:

A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.

the Reckless Conduct Statute, O.C.G.A. section 16-5-60, as applied in this case, both (1) failed to provide persons of ordinary intelligence with the notion that it purports to prohibit leaving children in the care of an older sibling; and (2) is vaguely worded so as to encourage arbitrary and selective enforcement by police, prosecutors, and juries, acting on an ad-hoc basis.¹²

Rosalind Hall, the mother in the Hall case, left her three children, ages five, three and one years old, for approximately four hours, in the care of an eleven-year-old sibling who did not regularly live with the mother. While the mother was absent, the three-year-old child died of a severe head injury.¹³

On appeal the state argued that the reckless conduct statute set forth the necessary notice of prohibition against the mother’s conduct based on the standard of “conscious disregard.” The Court rejected this argument because the statute did not give fair notice to the mother that she could be held criminally responsible for leaving her children in the care of an almost twelve-year-old child.¹⁴ Moreover, the Court held that the statute failed to provide explicit standards for those who would apply it, and therefore it was susceptible to arbitrary and selective enforcement. ¹⁵

To highlight the Georgia Supreme Court’s reliance on the arbitrary and selective enforcement principle, the Court states that prosecution was based on the fact that the child died and not the conduct of leaving a child unsupervised. In fact, the state would not have prosecuted the mother had there been no consequence of her conduct, i.e. had there been no injury to her child in her absence.¹⁶ The conduct itself must be criminal, not the consequence of the conduct. The Court therefore defined the political dilemma of the Georgia General Assembly in trying to craft a meaningful statute to protect children and avoid prosecution based upon consequences rather than conduct.

In Reyes v. State the Supreme Court of Georgia distinguished Hall and affirmed the jury’s conviction of reckless conduct for Stacy Louise Reyes, when she allowed her three-year-old daughter to wander away from home unsupervised. Tenya Reyes was missing for over an hour before Reyes began looking for her, and when the child was found, she was unconscious and soaked with rainwater and blood in a neighbor’s yard after being attacked by an animal. The Court stated there was sufficient evidence for the jury to find that Reyes was guilty of reckless conduct since the risks of allowing a three-year-old to wander on a public road were both substantial and unjustifiable. Further, the Court stated, “the facts in this case are not similar to the facts in Hall. . . .Reyes’s lack of supervision over her child is not an action that placed Tenya at risk only in hindsight.”¹⁸ In Hill v. State ¹⁹ , the Georgia Court of Appeals was not troubled by the intent or mens rea of the parent who delayed getting medical care for his four-year-old son who had been scalded in hot water. The defendant father was convicted under Georgia’s cruelty to children (O.C.G.A. 16-5-70) and reckless conduct (O.C.G.A. 16-5-60(b)) statutes. He appealed only the cruelty to children conviction. Section 16-5-70(b) provides: “any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel and excessive physical and mental pain.” The father in Hill argued there was no evidence that he maliciously caused pain to his child by not providing prompt medical treatment. The examining pediatrician testified that the child suffered second-degree burns and that the injuries occurred more than 24 hours before the child came to the hospital.²⁰

The Court held that malice “imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful [sic] doing of an act with an awareness of a plain and strong likelihood that such harm may result.” ²¹ Further, the Court stated that “[i]ntent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused in prosecuted.” ²² While this defendant’s conviction was upheld, generally the state has a difficult burden in proving malice. Proponents of a child endangerment statute argue this burden would likely prevent the prosecution of an adult who acts in grossly negligent ways, for instance leaving a child in a car in extreme heat because they “forgot” about the child, or because they did not actually know that cars overheat and threaten the life of a child locked inside. ²³ Similarly, leaving a small child unsupervised at a swimming pool knowing the child cannot swim may not constitute malice, even if the lack of attention to the child was a result of alcohol or drug abuse.

Brady v. State²⁴ exemplifies the problems of the malice standard. A foster care worker and sheriff deputies attempted to execute an emergency order to take custody of Terry Wayne Brady’s two-month-old daughter. Brady was found drinking vodka with family members and other under-aged companions. “For 30 minutes, Brady eluded the deputies, wading across a hip-deep creek and ran through briers, holding his infant daughter like a football, while shouting obscenities at his pursuers.”²⁵ When deputies finally recovered the infant, “she was shaking and vomiting from the chase and had scratches and bruises on her head, torso, and leg.” ²⁶

The jury did not convict on the offense of child cruelty, but found Brady guilty on the lesser-included misdemeanor offense of reckless conduct. Proponents of a specific child endangerment statute argue that the jury should have been given an opportunity to convict Brady of a felony child endangerment offense that did not require the proof of malice that the cruelty to children offense currently requires.

Both the reckless conduct and cruelty to children statutes in Georgia create possible barriers to prosecution of conduct that is grossly or criminally negligent in relation to the care and supervision of children. The challenge for the Georgia General Assembly is to draft legislation that will specifically define the crime of endangering a child and not require affirmative intent, and follow the statutory examples of other states.²⁷

In State v. Riggs²⁸, the Missouri Court of Appeals helped define the mens rea required in a child endangerment statute in reviewing a conviction for both involuntary manslaughter and endangering the welfare of a child. Upon moving into her trailer, the landlord had specifically told Karen Riggs that children were not allowed past a certain trailer and area in the park because there was an unfenced duck pond located on the property. Riggs’ two children, Jason age four, and Ben, age two, went outside to play for about forty-five minutes. During the forty-five minutes the children were outside their trailer they went to the duck pond and Ben drowned.²⁹

The Court found that “Riggs’ conduct included nothing intentional. She did not commit overt acts that would blatantly harm a child.” ³⁰ The Court explained that Riggs’s “omission to watch her children on the steps of her home for forty-five minutes did not make it substantially certain that her two year old son would wander to this death.” ³¹ The Missouri Court of Appeals held that Riggs’s omission was not reckless conduct that rose to the level required for homicide liability, and the involuntary manslaughter conviction was reversed. ³² The conviction under Missouri’s child endangerment statute, however, was affirmed. Under Missouri law, a person commits the offense of endangering the welfare of a child if he or she “knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old.” ³³ In response to Riggs’ argument that she did not act “knowingly,” the Court stated that Riggs’ conduct knowingly created a risk to the child, and the state was not required to prove that she knew the risk could result in injury or death.³⁴ Riggs could have been convicted of child endangerment even if Ben had been rescued, or simply found playing on the pond’s edge.

Arguably, all four defendants in the above cases acted or failed to act in such a way that they created a risk of harm to their children. Nonetheless, the law yielded inconsistent results for the defendants. The Georgia General Assembly can examine the parental conduct of Riggs, Reyes, Hall, and Brady, and decide its public policy based on its analysis of what responsibility a parent or person caring for a child should have to prevent not only injury, but also risk of danger.

D. DRAFTING ISSUES FOR GENERAL ASSEMBLY CONSIDERATION

1. Who May Be Charged?
1. Person Having Custody and Control

Most criminal child endangerment statutes provide that criminal liability may be applied only to persons having custody and control of a child, specifically a parent or guardian, or someone with conferred authority. In order to convict for an omission of supervisory conduct, the prosecutor must first identify a duty to the child, and this duty can be found in the special relationship between a parent and child. ³⁵

“Historically, the common law did not afford children adequate protection from abusive parents,” and this lack of protection was compounded by the general principle that no duty exists to protect others from harm. ³⁶ “A moral duty to act is not enough.”³⁷ An exception to the “no duty to act” rule can be based on the special relationship that exists between parties, and the common law imposes a duty on a parent or legal guardian to support his or her own child. ³⁸ A parent and child have a special relationship based on the child’s dependence on the parent for food, clothing, shelter and other necessities.³⁹

A duty can be created or expanded by statute, and Georgia created a duty to provide “necessary sustenance” in Pen. Code, Sec.708, which declared “whoever shall torture, torment, deprive of necessary sustenance, mutilate, cruelly, unreasonable and maliciously beat and ill-treat any child shall be guilty of a misdemeanor.”⁴⁰ Although this early statute had provided some protection for children,⁴¹ in Justice v. State ⁴² the Georgia Supreme Court refused to convict a father who refused to permit medicine to be administered to his sick child. According to the Court, “there is a very great difference between depriving a child of sustenance, and refusing to permit medicine to be administered to him.” ⁴³

“Necessary sustenance” has been more recently defined by the Georgia Supreme Court as “that which supports life; food; victuals; provisions. . . . Our statute, in the use of the word ‘sustenance,’ means that necessary food and drinks which is [sic] sufficient to support life and maintain health.” ⁴⁴ Thus, in Howell v. State ⁴⁵ , the Georgia Court of Appeals distinguished a charge based on the denial of “sustenance” under section 16-5-70(a) from one based on a denial of medical care that causes “cruel or excessive physical or mental pain” under O.C.G.A. § 16-5-70(b).

In Howell, the Court followed Justice and reversed the conviction of the Howell parents who gave their infant, Alan, regular formula instead of a high calorie formula although a high calorie formula had been prescribed by a physician.⁴⁶ The Court held that the infant had not been denied necessary sustenance. Therefore, the Georgia appellate courts have defined the duty to provide sustenance specifically to exclude the withholding of medical care unless the state specifically charges and proves that such withholding maliciously causes the child cruel or excessive pain.

Child endangerment statutes also can expand the definition of the duty owed a child by a parent or person in custody and control of a child. Missouri’s child endangerment statute holds guardians culpable of a Class A misdemeanor for failure “to exercise reasonable diligence” while caring for a child, obviously an expansively defined duty.⁴⁷ A statutory duty may be worded to focus on specific responsibilities, including liability for the caretaker who fails to provide a child with a proper education, or who leaves firearms within easy reach of a child. ⁴⁸

The Iowa Supreme Court discussed the issue of control as used in an endangerment statute in Anspach v. State of Iowa ^.49 Edward Anspach was stopped by the police for speeding at a rate of fifty-three miles per hour in a thirty-five miles per hour zone. In addition to two adult passengers in the open bed of his truck, the truck cab contained four children, ages one, two, two, and three who where sitting or lying on the seat. No child was protected by a car seat, and the three-year-old was completely unrestrained. The two two-year-olds were fastened together with the same belt. None of the children had a legal or custodial relationship with Anspach. The two adults in the bed of the truck, who were the mother and babysitter of the four children, were not charged.⁵⁰ When the police signaled by flashing lights for Anspach to stop, he sped up rather than slowed down, made two sharp turns onto a side street and then into an alley before coming to an abrupt stop. In addition to various moving violations, Anspach was cited with four counts of child endangerment under Iowa Code section 726.6(1)(a)(3) and was convicted.⁵¹

On appeal, Anspach argued that there was insufficient evidence of control to convict. The Court stated:

Anspach certainly had control over how he drove the car and whether he sped. He made the decision to accelerate or swerve to get away from the police. As the owner of the vehicle, it was Anspach’s sole right to dictate who he allowed to be present in this truck... Anspach was in a position to dictate how the children would be secured in his truck. ⁵²

The Iowa Court ruled that the statute does not limit its reach to only those with custody, i.e., the parents or guardians, but was written to include adults having control over a child as well, and the term control has a broader meaning than custody. “ ‘Control’ refers to the state of having restricting or governing power over someone, while ‘custody’ implies not only a power of oversight but also a responsibility for the care of the individual.” ⁵³ The statute therefore properly applies to a person who has the ability to control the risk, and “does not limit the applicability of the control element to only those times when a guardian or someone with custody is not present.”⁵⁴ This broad definition of control offers one example of the kind of issues the General Assembly may need to consider in deciding how to limit or expand liability under a child endangerment statute.
2. May Child Protective Services Caseworkers Be Criminally Liable for Endangering a Child?

Child protective services caseworkers have questioned whether they could be held criminally liable for failure to act to protect a child. Most reviewers of criminal liability of child protective service workers state that the reasonable exercise of professional judgment cannot create criminal liability. For example, in People v. Dossinger ⁵⁵ , indictments charging three social workers with various counts of official misconduct and endangering the welfare of a child were dismissed. In dismissing the indictments, a New York Supreme Court ruled that the:

evidence presented before the Grand Jury served as nothing more than the substitution of the People's witnesses' judgment as to how they would have exercised their discretion in several isolated cases concerning alleged neglected children as opposed to the manner in which the defendants' elected to act. This Court views the testimony of the People's witnesses as merely a difference of opinion concerning the exercise of a discretionary function.⁵⁶

The Court emphasized that the social worker had authority to act but not an obligation to remove a child, and that the discretionary nature of such job functions are defined throughout regulatory materials. Therefore, an affirmative duty to control could not be implied from a duty to make a discretionary judgment.⁵⁷ In addition, the General Assembly could specifically exclude discretionary professional judgments. This exemption may not be absolute. For example, some level of liability may remain for the caseworker who intentionally falsifies a case record by stating he or she physically visited a child in the home and in fact had not made such a visit. Obviously, the imposition of criminal liability is distinct from civil liability, and this discussion does not include an analysis of civil liability for child protective services workers’ professional misjudgments, which is a difficult and controversial area of the law.
3. Should the Partner of the Abuser, Who Is Also a Victim of Abuse, Be Criminally Liable for Failure to Protect?

Several states have codified another limitation on who may be charged by providing certain affirmative defenses to prosecution for “failure to protect.”⁵⁸ In particular, some of these statutes provide for an affirmative defense to prosecution if at the time of the endangerment there was a “reasonable apprehension in the mind of the defendant that acting to stop or prevent the neglect or endangerment would result in substantial bodily harm to the defendant or the child in retaliation.” ⁵⁹ Oklahoma defines the affirmative defense as available to a person who had a “reasonable apprehension that any action to stop the abuse would result in substantial bodily harm to the person or the child.” ⁶⁰

An issue related to this affirmative defense is the creation of liability for the abuser based on the emotional harm that impacts a child who witnesses violence. There is extensive research and evidence that exposure to violence in the family setting has long term damaging effects to children, and legal scholars have argued that this research requires that emotional harm from witnessing violence must be included in definitions of child endangerment. ⁶¹ Expressly including “emotional harm” in the definition of child endangerment will allow prosecution of a person who commits violence in the presence of a child. In fact, in Hall v. State⁶² , one of the counts with which the defendant was charged under the cruelty to children offense was “maliciously causing . . . cruel and excessive mental pain.” Hall’s two daughters watched when he shot their ten-year-old brother. ⁶³ Similarly, in Sims v. State⁶⁴, the defendant was convicted of two counts of cruelty to children arising out of his attempt to kill the children’s mother in the presence of the children.

In People v. Johnson⁶⁵, the New York Court of Appeals upheld a conviction of child endangerment against Theodore Johnson for his violent attack against his ex-girlfriend as she walked home from the supermarket with her three daughters. The evidence before the Court included the children crying during the attack and being trapped in their bedroom for ten hours during Johnson’s “reign of terror.” The Court interpreted the evidence to be legally sufficient to support a conviction even though Johnson’s actions were not specifically directed at the children. The Court found that the “statute is broadly written and imposes a criminal sanction for the mere ‘likelihood’ of harm.”⁶⁶ The statute required that the defendant “simply be aware that the conduct may likely result in harm to a child, whether directed at the child or not.” ⁶⁷

Further, inclusion of “emotional harm” in a child endangerment statute for Georgia, specifically relating to children witnessing domestic violence, should be considered in the context of the 1999 amendment to the current Cruelty to Children offense,⁶⁸ which reads as follows:

(c)Any person commits the offence of cruelty to children in the second degree when: (1) such person, who is 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.

By including these amendments in the 1999 Cruelty to Children offense, the Georgia General Assembly codified the cases cited above to declare that subjecting a child to the emotional harm of witnessing family violence shall be an intentional criminal offense. For the 2002 General Assembly, the determination to include emotional harm will relate to fact situations other than domestic violence.

To accomplish the end of prosecuting abusers for domestic violence, commentators argue there must be statutory protections for the victim-parent, most commonly the mother of the children.⁶⁹ Some states, however, have prosecuted mothers who failed to protect their children from witnessing violence, or failed to protect their children in some other way.⁷⁰ Advocates for victims of domestic violence may ask the General Assembly to provide an affirmative defense where there is a “reasonable apprehension in the mind of the defendant that acting to stop or prevent the neglect or endangerment would result in substantial bodily harm to the defendant or the child in retaliation.”⁷¹ Child advocates, normally aligned with advocates of victims of domestic violence in the Georgia General Assembly, may argue against such a statutory protection.

2. Should Religious Activities Be Exempted From the Definition of Child Endangerment?
Another difficult decision the General Assembly may have to make is whether to include in any enactment of a child endangerment statute an exemption from prosecution for religious activities. Religious or spiritual exemption laws did not exist in most states prior to the enactment of the Child Abuse and Protective Treatment Act⁷² (CAPTA) in 1974. ⁷³ Initially, CAPTA was “interpreted to require states to amend their child abuse and neglect statutes to include an exemption for spiritual healing” to be eligible to receive federal funds. ⁷⁴

In 1983, the Department of Health and Human Services issued new regulations regarding religious exemptions providing that “nothing in the federal rule should be construed as requiring or prohibiting a finding of neglect when a parent practicing his or her religious beliefs does not, on that basis alone, provide medical treatment for his or her child.” ⁷⁵ So the exemption was then thought to be optional, and the 1983 regulations also revised the definition of negligent treatment to include failure to provide adequate medical care.⁷⁶

The Georgia code includes exemptions for spiritual healing in the definition of deprivation in the Juvenile Court Code. Specifically, O.C.G.A. § 15-11-2(8) states:

No child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be a deprived child.

Further, the Georgia code has included the exact language of O.C.G.A. § 15-11-2(8) in the exemption for spiritual healing under the definition of child abuse set forth in O.C.G.A. § 49-5-180(5). A proposed committee substitute to House Bill 453, the legislation filed in the 2001 Georgia General Assembly and currently pending for possible enactment in the 2002 General Assembly Session to create the criminal offense of child endangerment, included a spiritual exemption clause. ⁷⁷

In Florida, a similar spiritual healing exemption to the criminal definition of child abuse has been declared unconstitutionally vague in Hermanson v. State.⁷⁸ Florida’s criminal child abuse statute at the time provided:

Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or who, knowingly or by culpable negligence, permits physical or mental injury to a child, and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to such child, shall be guilty of a felony of the third degree…⁷⁹

The third degree murder provision of section 782.04(4) ⁸⁰ provided that the killing of a human being while engaged in the commission of child abuse constitutes murder in the third degree and is a felony of the second degree, but section 415.503 stated at paragraph (7)(f) that, “however, a parent or other person responsible for the child’s welfare legitimately practicing his religious beliefs, who by reason thereof does not provide specified medical treatment for a child, may not be considered abusive or neglectful for that reason alone.”⁸¹

In Hermanson, the Florida Supreme Court found that the above cited criminal child abuse statute and the spiritual treatment accommodation provision, when considered together, were ambiguous and denied due process to parents convicted of child abuse for failing to provide their daughter with conventional medical treatment for juvenile diabetes, resulting in the child’s death. The statutes “fail to give parents notice of the point at which their reliance on spiritual treatment loses statutory approval and becomes culpably negligent.”⁸² A “person of ordinary intelligence cannot be expected to understand the extent to which reliance on spiritual healing is permitted and the point at which this reliance constitutes a criminal offense.” ⁸³ Ultimately, the Court concluded that:

the legislature has failed to clearly delineate the point at which a parent’s reliance on his or her religious beliefs in the treatment of his or her children becomes criminal conduct. If the legislature desires to provide for religious accommodation while protecting the children of the state, the legislature must clearly indicate when a parent’s conduct becomes criminal.⁸⁴

In contrast, the Pennsylvania Superior Court affirmed a conviction of child endangerment where the parents’ conduct in not providing medical care to their son led to his near death from a liver tumor, even though Child Protective Services Law exempted spiritual healing from being called child abuse. ⁸⁵ The Court found that:

[Child Protective Services Law] and the involuntary manslaughter statutes are not in conflict in their plain meaning, as well as under a constitutional analysis. A plain reading of the statutes shows that an act which does not qualify as child abuse may still be done in a manner which causes death and thus qualifies as involuntary manslaughter. ⁸⁶

The Superior Court held that Pennsylvania law imposes an affirmative duty on parents to seek medical help when the life of a child is threatened regardless of and, in fact, despite their religious beliefs.⁸⁷

In State v. McKown⁸⁸, Christian Science parents were indicted for second-degree manslaughter when their child died from untreated diabetes. Similar to Florida, Minnesota had a statutory scheme granting an exception for spiritual treatment in conjunction with a manslaughter statute that was based on culpable negligence resulting in death. The Minnesota Court of Appeals also found a violation of due process, concluding there was a “lack of clarity in the relationship between the two statutes.” ⁸⁹

Many states that enacted some form of spiritual healing exceptions in the mid-seventies have repealed them in more recent years. ⁹⁰ This trend of repeal of spiritual exemptions will likely continue.

E. CONCLUSION

Georgia stands alone in failing to enact a child endangerment statute, although prosecution of conduct against children is aggressive and increasing. Creation of prosecutorial units within District Attorney’s offices relating to crimes against children, and the growing public awareness of the real and immediate dangers in many children’s lives, have sharpened attention to legal issues for children placed at substantial risk of harm by adults. Passage of a child endangerment statute in the 2002 General Assembly Session is both likely and timely.

¹H.B. 453, 147th Gen. Assem., Reg. Sess. (Ga. 2001). The text of H.B. 453 consist of the following:
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Article 5 of Chapter 5 of Title 16 of the Official Code of Georgia Annotated, relating to cruelty to children, is amended by adding at the end thereof a new Code Section 16-5-73 to read as follows:
16-5-73.

1. A person commits the offense of misdemeanor child endangerment when such person acts or fails to act in conscious disregard of a substantial and foreseeable risk that the act or omission could endanger the health or safety of a child under the age of 16 years and when the act or omission constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
2. A person commits the offense of felony child endangerment when such person acts or fails to act in conscious disregard of a substantial and foreseeable risk that the act or omission could endanger the health or safety of a child under the age of 16 years and when the act or omission constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation and such child suffers a serious bodily injury or death as a result of such act or omission.
3. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished as provided in Code Section 17-10-3. Any person who violates subsection (b) of this Code section shall be guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.
4. Each violation of this Code section shall constitute a separate offense.
5. This Code section shall not be construed to amend or repeal any of the following provisions:
   
   1. Subsection (b) of Code Section 16-5-60, relating to reckless conduct;
   2. Code Section 16-5-70, relating to cruelty to children;
   3. Code Section 16-5-72, relating to reckless abandonment of a child;
   4. Code Section 16-5-80, relating to feticide;
   5. Code Section 16-12-1, relating to contributing to the delinquency, unruliness, or deprivation of a minor; or
   6. Subsection (l) of Code Section 40-6-391, relating to endangering a child by driving under the influence of alcohol or drugs.

SECTION 2.
This Act shall become effective on July 1, 2001.
SECTION 3.
All laws and parts of laws in conflict with this Act are repealed.

Sec. 708-(4612h.) Cruelty to Children . Whoever shall torture, torment, deprive of necessary sustenance, mutilate, cruelly unreasonably and maliciously beat or ill-treat any child or cause any of said acts to be done, shall be guilty of a misdemeanor.

Sec. 26-2801 Cruelty to Children - A parent, guardian or other person supervising the welfare of or having immediate charge or custody for a child under the age of 18 commits cruelty to children when he wilfully deprives the child of necessary sustenance or maliciously causes the child cruel and excessive physical or mental pain. A person convicted of cruelty to children shall be punished by imprisonment for not less than one nor more than five years.

26-2801. Cruelty to Children. - Former Ga. Code Ann., Sec. 26-8001, made it a misdemeanor for anyone to “torture, torment, deprive of necessary sustenance, mutilate, cruelly, unreasonably, and maliciously beat or ill treat any child.” It is felt that the acts covered by this former section would generally be punishable under the criminal law relating to causing bodily harm. At the same time, a special prevision may be advisable to punish a parent or one standing in the place of a parent who might seek to defend against outrageous acts towards a child by taking refuge in the concept of necessary corrective discipline.

16-5-70. Cruelty to Children.

1. A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child=s health or well-being is jeopardized.
2. Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.
3. Any person commits the offense of cruelty to children in the second degree when: (1) Such person, who is 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.

Reprinted with permission of Georgia Bar Journal. Originally published in December, 2001.
For original article see http://GABar.org/pdf/gbj/dec01.pdf, page 8.