Child Neglect Means Anything That Puts the Child in Danger
Video Transcribed: What is child neglect in Oklahoma? I’m Tulsa Child Neglect Attorney, James Wirth. And that’s the question presented to me today is what is child neglect? And unfortunately, the child neglect statutes are incredibly broad. In fact, I would find them to be unconstitutionally broad. And it’s very difficult to know exactly what is potentially child neglect under the law because literally, almost anything can be because it’s written so broadly.
So what does the law say? I’m going to go to the Oklahoma Jury Instructions for that, and there are various ways you can get there, but essentially by the statute itself doesn’t even require you to have a relationship with the child.
So technically by the statute, if you’re going to follow it directly, you could be guilty of child neglect for not feeding a child starving on the other side of the county that you’ve never heard of, never seen before because it doesn’t have any relationship requirement.
However, that has been written into the law in order to make it constitutional by the Oklahoma Court of Criminal Appeals. So that’s the first element. A person responsible for the child’s health, safety, or welfare.
And then the second is the intent requirement. It says willfully and maliciously. However, that intent requirement has been interpreted by the court to be a general intent, not a specific intent, which means it’s a very watered-down version.
I’ll get to that more specifically later. So a person responsible for the child willfully, maliciously failed, omitted to provide. And then it has a list of things that if you fail to provide can be child neglect. And then lastly, a child under the age of 18.
So if you fail to provide adequate nurturance, adequate affection, adequate food, clothing, shelter, sanitation, hygiene, education, medical, dental, behavior health, care, supervision, or special care made necessary by a physical or mental condition. So exactly how much affection do you have to give your child before it is no longer neglect?
How much food, clothing, shelter, what exactly is necessary sanitation and hygiene? I mean, if you go camping, is that going to be not enough shelter? Is that going to not be enough sanitation? There are no specific guidelines in the statute.
There’s not a lot of case law that goes on that. Which, unfortunately, means that it’s so broad, anybody, a creative prosecutor can make an allegation that any person is neglecting their child using this standard. That unfortunately gives prosecutors a lot of authority to decide who they want to charge and who they don’t.
Essentially, they’ve got the ability to charge somebody. If they want to go after somebody, they can find a way to do it under the statute. And then it comes down to ultimately a jury perhaps in deciding was it an adequate amount of affection, nurture, food, clothing, shelter, sanitation, medical care, dental. I mean, if you don’t take your child to the dentist, is that neglect to the point that it can be criminal?
I mean, we’ve got parents who are great parents. We’ve got parents that maybe aren’t as good parents. But does that mean that it’s criminal that they’re not as good? Does that mean that it’s neglect? And that’s where we get into the real trouble here is because child neglect in Oklahoma is an incredibly broad statute that could be applied to anybody if a prosecutor is wanting to, or creative enough, has the sentencing potential of life imprisonment. So any allegation of child neglect when it’s filed has the potential of life imprisonment. And that’s where it gets to be fairly egregious.
And then the other thing that makes it even more egregious, as I alluded to before, is the intent requirement. Generally speaking, every crime requires a mental intent and then a physical act. It’s called a men’s rea and actus reus.
They’ve been watered down to some extent. And in this statute, based on the Fairchild case that they’re applying, and that is child abuse that resulted in a death, but they’re applying that, Oklahoma Court of Criminal Appeals has put it in the Jury Instructions for all of these crimes that have the willfully and malicious statutory intent requirement to say that it is a general intent. And so let me tell you how that works.
So if you are, we’ll talk about it in the context of child abuse rather than child neglect. It’s easier to kind of visualize. If you are playing ball, throwing the ball around with your son, and you throw the baseball and the child doesn’t catch it and it hits him in the face, maybe it breaks the nose. So specific intent would require you to have intended to break the child’s nose. General intent only requires that you intended to throw the baseball.
So by intending to throw the baseball, you have committed the necessary intent for the criminal act, even though you didn’t intend the result. And that is what the Oklahoma Court of Criminal Appeals is applying to the neglect. So it’s not that you have to intend to have neglected the child. All you had to do is intend to take the child camping and that’s insufficient shelter.
Now, obviously, we’re not seeing these incredible, horrible cases filed left and right where prosecutors are being overzealous on these, but we do see them. And the worst part about it is if you have a little bit of an allegation, you can then charge the child neglect and hang a life sentence over somebody’s head.
And that puts a lot of pressure on them to take a plea deal to avoid the risk of going to trial, even if they don’t think that they committed any crime. It gives the state, I think, way too much leverage. And I think the statute is unconstitutionally vague, broad on exactly what is neglect and what it is not.
So I can just tell you what the Jury Instructions say. Ultimately, what is neglect is going to be up to a prosecutor to file it and a jury to convict on it to determine what neglect is. But if you’ve got specific questions about your circumstances, don’t take this general information. Get specific answers from an attorney confidentially. If you’d like to get that scheduled, you can go online to makelaweasy.com.
