The Children's Corner

Publication year2016
No. Vol. 42 No. 1 Pg. 34
Vermont Bar Journal
Spring, 2016

Prosecuting Child Physical Abuse Cases in Vermont's Family and Criminal Divisions... Understanding the Challenges To Get Better Outcomes for Kids

Kerry A. McDonald-Cady Esq., J.

In 2014, Vermonters began openly discussing a very difficult topic to talk about, much less understand the reasons for why it occurs and how to prevent it—child abuse. According to the Administration for Children & Families, a division of the United States Department of Health and Human Services, there were 746 victims of child abuse and maltreatment in Vermont in the year 2013 for children between the ages of birth through eighteen.[1] With regards to child fatalities due to abuse or non-accidental trauma in Vermont, there were zero cases reported in years 2013 and 2012, two child fatalities in year 2011, four child fatalities in year 2010 and three child fatalities in year 2009.[2]

But what is child abuse? The Federal Child Abuse Prevention and Treatment Act (CAP-TA) provides a legal definition of child abuse and neglect setting forth a minimum set of acts or behaviors to provide guidance for each state to then adopt its own legal definition. Per CAPTA, child abuse and neglect, at a minimum, is "any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical injury or emotional harm, sexual abuse or exploitation or an act or failure to act which presents an imminent risk of serious harm." [3] In Vermont, child abuse is defined in two different ways based on the court that hears the case. When a child is the subject of a juvenile CHINS (child in need of care or supervision) proceeding pursuant to Chapter 53 of Vermont Statutes Title 33, the family court judge must determine whether a child has been abused by the child's parent, guardian or custodian or whether a child is without proper parental care or other care necessary for the child's well-being.[4] There is no statutory definition of "abuse" or "abused" within Vermont's Juvenile Proceedings Act. In contrast, in a Vermont criminal case where a person is charged with willfully or recklessly causing injury to a child, abuse is defined as "bodily injury" or "serious bodily injury." Bodily injury "means physical pain, illness or any impairment of physical condition" while serious bodily injury "means bodily injury which creates a substantial risk of death or a substantial loss or impairment of the function of any bodily member or organ or a substantial impairment of health or substantial disfigurement or strangulation."[5] In addition, child abuse in Vermont is also referred to as "cruelty to a child" pursuant to Vermont Statutes Title 13 Section 1304. This criminal statute reads, "[A] person over 16 years of age, having the custody, charge or care of a child, who willfully assaults, ill treats, neglects or abandons or exposes such child, or causes or procures such child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner to cause the child unnecessary suffering, or to endanger his or her health," is guilty of a misdemeanor...

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