Imagine you’re staying in a house with family, when a non-family member brings over a child that you’ve never met. In the house are your mother, brother, grandmother, brother’s girlfriend, and your girlfriend. The child belongs to your brother’s girlfriend. The child had been scalded in a hot bath at a different location. You were not present, nor had ever been to the location where the child was scalded. At some point, you see some of the burns to the child (who is the care of her mother), and go purchase medical supplies to treat the injuries. (Mother and boyfriend haven’t done anything to assist child.)
What do you do? Do you take the child away from her mother and take her to the hospital? No one else in the household, including your own mother or grandmother, took the child to see a doctor – should you? You make an effort to get ointment and bandages for the child, but are you breaking the law if you don’t personally take the child to the hospital? Those are just the sort of questions that arose in State v. Donald Higgins.
In Tennessee, penalties for aggravated child abuse and neglect are the same. That means the punishment doled out for failing to do something is the same as the punishment administered for actually inflicting an abusive punishment. This is one of those laws that just feels unfair. In other words, your failure to act regarding a three-day old burn is treated the same as if you personally inflicted that burn on the child and then take him to the hospital. The child abuse and neglect statute, TCA 39-15-402 reads as follows:
(a) A person commits the offense of aggravated child abuse, aggravated child neglect or aggravated child endangerment, who commits child abuse, as defined in § 39-15-401(a); child neglect, as defined in § 39-15-401(b); or child endangerment, as defined in § 39-15-401(c) and:
(1) The act of abuse, neglect or endangerment results in serious bodily injury to the child;
(2) A deadly weapon, dangerous instrumentality or controlled substance is used to accomplish the act of abuse, neglect or endangerment; or
(3) The act of abuse, neglect or endangerment was especially heinous, atrocious or cruel, or involved the infliction of torture to the victim.
The neglect statute also requires that the child be knowingly neglected and that the neglect adversely affect the child’s health and welfare. 39-15-401. In Mr. Higgins’ case, he was charged and convicted of aggravated child neglect because the child suffered seriously bodily injury. He was sentenced to twenty-eight years in prison for not taking a child, that he had no right to control, to the hospital.
On Tuesday, the Court of Criminal Appeals reversed the jury’s conviction, finding that there was insufficient evidence to support the conviction. The court first looked at whether Mr. Higgins fell under loco parentis, meaning he would have a legal duty to the child. The panel concluded that at all times the child was under the exclusive care and control of her mother, who resisted suggestions that she be taken for medical treatment of her burns. Mr. Higgins, after viewing a portion of the injury to the child’s leg, told the mother to take the child to the doctor, but she refused.
The court also disagreed with the State’s argument that Mr. Higgins was criminally responsible for the neglect of the mother and boyfriend. Criminal responsibility requires the defendant to “knowingly, intentionally, and with common intent united with the principal offender in the commission of the crime.” Higgins at 9. At trial and on appeal, the State argued that Mr. Higgins was trying to protect his brother and that he had seen the injuries more than the single encounter, whereafter he went out and purchased supplies. The CCA found that the State was merely speculating and presented no proof during trial to support its theory. The State’s theory that Mr. Higgins discouraged medical treatment was not supported by any evidence, and the CCA determined that he was the only person that attempted to provide any medical treatment.
The Higgins case is scary, because under the theory employed by the prosecutor, any person on the street that comes into contact with a visibly-injured child, but does nothing, could be subject to prosecution. If the child’s parent refuses care, do you rip the child from their arms? Must you call the police? Does it depend on the severity of the injury? None of these answers have clear answers. No one wants to see an abused child, but at what point do we limit who should be held responsible? Read the full opinion at
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