CHILD ABUSE (INJURE, TORTURE, MAIM) - ELEMENTS
No person may be convicted of child abuse unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, a person willfully/maliciously;
Third, a child under the age of eighteen.]
Statutory Authority: 21 O.S. 2011, § 843.5(A).
Notes on Use
This Instruction should be used if the defendant is charged with child abuse that involves injuring, torturing, or maiming a child, and OUJI-CR 4-35, supra, should be used for other types of child abuse. OUJI-CR 4-36 should be used if the defendant is charged with enabling abuse of a child. OUJI-CR 4-37 should be used if the defendant is charged with child neglect, OUJI-CR 4-39 should be used if the defendant is charged with child sexual abuse, and OUJI-CR 4-41 should be used if the defendant is charged with child sexual exploitation.
Section 843.5 was designed to protect a designated group of persons, children under the age of 18. Therefore, the age of the child is an element to be proved by the State. Holder v. State, 1976 OK CR 288, 556 P.2d 1049. No special relationship is required under section 843.5(A) for persons who injure, torture, or maim a child.
The statute requires proof of a mental state of maliciousness or willfulness on the part of the defendant while in the performance of the proscribed conduct. Generally, however, intentional infliction of severe injuries upon a child will be sufficient to establish a prima facie case, reserving the issue of the sufficiency of the proof regarding the defendant's mental state to the jury. Smith v. State, 1979 OK CR 30, 594 P.2d 784.
In Fairchild v. State, 1999 OK CR 49, ¶ 51, 998 P.2d 611, 622-23, the Oklahoma Court of Criminal Appeals decided that the mens rea for felony murder of a child under 21 O.S. Supp. 1999, § 701.7(C) was a general intent to commit the act which causes the injury, rather than a specific intent, and that the general intent was included within the terms "willfully" or "maliciously."
| Service provided by the IS department of the Oklahoma Court of Criminal Appeals
Email our webmaster with any of your comments or suggestions.