ENABLING CHILD ABUSE - ELEMENTS
No person may be convicted of enabling the abuse of a child unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
[First, a person willfully/maliciously caused/procured;
Second, a willful/malicious act of harm/(threatened harm);
Third, to the health, safety, or welfare;
Fourth, of a child under the age of eighteen.
Fifth, by a person who is responsible for the health, safety or welfare of the child.]
[First, a person responsible for a child's health, safety, or welfare;
Second, willfully/maliciously permitted;
Third, a willful/malicious act of harm/(threatened harm);
Fourth, to the health, safety, or welfare;
Fifth, of a child under the age of eighteen;
Sixth, by a person responsible for the child?s health, safety, or welfare.]
["Permitted" means authorized or allowed for the care of the child by an individual when the person authorizing or allowing such care knew or reasonably should have known that the child would be placed at risk of abuse.]
Statutory Authority: 21 O.S. 2011, § 843.5(B), 10A O.S. 2011, § 1-1-105(2).
Notes On Use
The bracketed definition of "permitted" should be given only if applicable. A definition of "procured" is found in OUJI-CR 4-40D, infra.
What distinguishes the crime of child abuse from the crime of enabling child abuse under 21 O.S. 2011, § 843.5(B) is that enabling child abuse involves the "causing, procuring or permitting" of child abuse, as defined in 10A O.S. 2011, § 1-1-105(2). A person who caused or procured child abuse would be guilty of child abuse as a principal. See OUJI-CR 2-5, supra. However, a person who permitted child abuse would not necessarily be guilty of child abuse. In order to be guilty of enabling child abuse by permitting it under 21 O.S. 2011, § 843.5(B), a person must 1) authorize or allow for the child's care, and 2) know or reasonably should know that the child is being placed at risk of abuse. Under 21 O.S. 2011, § 843.5(B), enabling child abuse is limited to causing, procuring or permitting of a willful or malicious act of child abuse, as defined by paragraph 2 of Section 1-1-105 of Title 10A of the Oklahoma Statutes, and § 843.5(B) does not include causing, procuring or permitting the willful or malicious injury, torture or maiming of a child.
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."
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