Child Abuse, Sex Crimes Defenses to Child Abuse Charges

  1. It can be difficult to assert a successful child abuse defense since criminal charges will typically include the testimony of a child. People tend to be more sympathetic towards children and are inclined to protect them first. The accused may face a challenging uphill battle when fighting abuse allegations.

    A parent facing child abuse allegations has the same rights as any other defendant who is charged with a crime. This includes the right to due process and to defend themselves in criminal court before a judge and jury. However, as a result of the inflammatory nature that is inherent in child abuse cases, a criminal attorney is often involved sooner rather than later. Defense strategies can be complex and may require addressing allegations of emotional, physical and sexual abuse. While child abuse laws are designed primarily to protect children, due process provides a fair chance for the accused to be make a defense and an opportunity to be acquitted of the charges when warranted. The following contains a short list of defenses that may be available when facing a child abuse charge:

    False Child Abuse Claims

    Perhaps the most common child abuse defense is a claim that the allegations made never occurred. Many people don’t realize how easily children can and will fabricate a child abuse claim when under great stress, duress or manipulation. Child custody battles frequently involve one parent pitting their child against the other. In dysfunctional families, children may fabricate an abuse claim in order to cope with or escape from a difficult situation. A skilled criminal attorney will usually try to uncover the important details quickly and learn more about the truth surrounding the abuse claim. They will obtain evidence or elicit other testimony that proves that the child lied about the crime or is capable of lying about a directly related matter. This provides proof that the abuse may never happened or that the child has the capability to lie and the allegations are likely to be false.

    Accident or Other Cause of the Injury

    Children are more prone than adults to hurting themselves or being hurt as the result of an accident. Unless an accident or injury occurred as a result of a parent’s extreme or gross negligence, carelessness or recklessness, child abuse laws will usually not apply. Typical examples of child injuries resulting from an accident include falling off of a swing or a bicycle, falling after trying to climb a tree, slips and falls and fingers or a hand caught in a closing door. Most true accidents that are unintentional and don’t result in a high degree of negligence will not be deemed child abuse. However it is not so clear when gross negligence is involved, as courts are split. The most common incidents that lead to criminal charges include leaving a child in a car alone for an excessive period of time in very hot or cold weather conditions.

    Sometimes a child will suffer injuries that are not accidental but caused by a third party or act of nature. Fighting at school is extremely common and a young boy may come home with a black eye or scrapes and bruises.

    Parental Discipline

    Parents generally have a right to decide how they will discipline their children, provided that the discipline is reasonable and does not result in bodily injury. Parents spanking or threatening to spank a child is a common issue in many child abuse cases.
    The term “loco parentis” is used to describe a person or organization that takes on some of the functions and responsibilities “in place of the parent.” This would include teachers, baby sitters, care takers or a day school where others are responsible for the children. During these times the child is out of the presence and control of the parents and during which time may have been harmed. In such situations the “parental privilege” defense may be invoked - that these people in charge had a right to reasonably discipline the child in their care in a similar manner as a parent would. This defense would not be available when the child suffers more than superficial bruising or injuries that are the consequence of the disciplinary measures.

    Religion / Religious Beliefs

    A defense can be made in most states that a child did not receive conventional medical care where the treatment would be in violation of a religious belief. Even though a child may have a treatable illness, the parents may choose not seek medical care for the child and opt for prayer or another religious remedy. While this solution to a medical problem may seem greatly disconcerting, such choices may still be within the realm of religious freedoms and choices. No child abuse charges can be filed in states that provide a religious belief exemption. However, this controversial defense is not absolute and states will differ regarding to the circumstances when it may be available.

    Medical Conditions and Diseases

    Some children suffer from serious medical conditions and diseases, such as having a brittle bone structure that makes it is easy for a child to break bones. A child abuse defense may be available when it can be demonstrated that a child had a medical condition that was responsible for or contributed to the injury suffered.

    The defense of Munchausen Syndrome by Proxy (MSBP) is uncommon. The child’s parent or caregiver (usually the mother) promotes or lies about an illness that the child suffers from in order to elicit attention or sympathy for the adult caregiver rather than the child. This kind of defense will typically require psychological or medial data and proof for a successful defense.

    When to Involve an Attorney

    There are other defenses that may be asserted, depending on the situation and the facts involved in the specific case. The individual charged with child abuse should consult a criminal defense attorney sooner rather than later, who can best explain the legal rights of the accused and the child abuse laws in the state where the alleged incident occurred.
    Criminal Law & Procedure:
    Criminal Charges - Child Abuse
    Criminal Charges:
    Child Abuse

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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