2.7Child Abuse

A.Statutory Authority; Degrees of Child Abuse

1.First-Degree Child Abuse

Under MCL 750.136b(2), a person is guilty of first-degree child abuse if “the person knowingly or intentionally causes serious physical harm or serious mental harm to a child.”¹

“Because the Legislature provided that the perpetrator must ‘knowingly or intentionally’ cause the serious physical harm[ to be guilty of first-degree child abuse under MCL 750.136b(2)], it is not sufficient for the prosecutor to prove that the defendant intended to commit the act that caused the physical harm; the prosecutor must prove that the ‘defendant intended to cause serious physical harm or knew that serious physical harm would be caused by [his or] her act.’” People v McFarlane, 325 Mich App 507, 513-514 (2018), quoting People v Maynor, 470 Mich 289, 291 (2004) (alteration in original). “Because it is difficult to prove an actor’s state of mind, the prosecution may rely on minimal circumstantial evidence to prove that the defendant had the required mental state.” McFarlane, 325 Mich App at 516. In McFarlane, “[t]he evidence that defendant shook [the infant-victim] and that his shaking caused her injuries was sufficient to establish that defendant acted intentionally and caused her serious physical harm.” Id. at 516.

2.Second-Degree Child Abuse

Under MCL 750.136b(3), a person is guilty of second-degree child abuse “if any of the following apply:

(a) [t]he person’s omission causes serious physical harm or serious mental harm to a child^[2] or if the person’s reckless act causes serious physical harm or serious mental harm to a child.^[3]

(b) [t]he person knowingly or intentionally commits an act likely to cause serious physical or mental harm to a child regardless of whether harm results.^[4]

(c) [t]he person knowingly or intentionally commits an act that is cruel to a child regardless of whether harm results.^[5]

(d) [t]he person or a licensee as licensee is defined in . . . MCL 722.111, violates [MCL 722.125(2) (providing that an intentional violation of a licensing rule promulgated under the child care licensing act, MCL 722.111 et seq., for family and group child care homes that causes the death of a child constitutes second-degree child abuse)].”

Omission, as it is defined in MCL 750.136b(1)(c), “does not include the failure to obtain medical care[.]” People v Bryant, 342 Mich App 29, 35 (2022). MCL 750.136b(1)(c) expressly defines omission as “‘a willful failure to provide food, clothing, or shelter necessary for a child’s welfare or willful abandonment of a child.’” Bryant, 342 Mich App at 35, quoting MCL 750.136b(1)(c). In Bryant, the child was injured when he was “toss[ed] or [thrown] . . . over the baby gate[.]” Bryant, 342 Mich App at 33. After the child was on the other side of the baby gate, he “cried for a long time but did not appear to have sustained a serious injury.” Id. at 32. The child fell asleep, and defendant allowed him to sleep until the next morning when defendant “found [the child] unresponsive and cold.” Id. at 32. Although the defendant “failed to check on [the child] during the night or to seek medical attention for him when he failed to awaken from sleep,” the definition of omission does not include a defendant’s “failure to more expeditiously obtain medical care for her son . . . .”Id. at 34, 35. 

“[I]n order to constitute a ‘reckless act’ under [MCL 750.136b(3)(a)], the defendant must do something and do it recklessly. Simply failing to take an action does not constitute an act.” People v Murphy, 321 Mich App 355, 358, 361 (2017) (the defendant’s failure to clean her house and ensure that morphine pills were not within the reach of the child-victim did not constitute an act that led to the child’s death; rather it was a reckless inaction, which is not contemplated by the statute). However, a defendant’s inaction combined with affirmative acts may still constitute a reckless act. See People v Head, 323 Mich App 526, 536 (2018) (distinguishing the facts from those in Murphy, 321 Mich App at 355 where “[d]efendant committed reckless acts [under MCL 750.136b(3)(a)] by storing a loaded, short-barreled shotgun in his unlocked bedroom closet and then allowing his children to play in the room while unsupervised” leading to the child-victim’s death; “[t]he key evidence here consisted not only of defendant’s inaction but of his affirmative acts of storing a loaded shotgun in an unlocked closet of defendant’s bedroom and allowing his children to play in that bedroom while unsupervised”).

3.Third-Degree Child Abuse

Under MCL 750.136b(5), a person is guilty of third-degree child abuse “if any of the following apply:

(a) [t]he person knowingly or intentionally causes physical harm to a child.

(b) [t]he person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, and the act results in physical harm to a child.”⁶

4.Fourth-Degree Child Abuse

Under MCL 750.136b(7), a person is guilty of fourth-degree child abuse “if any of the following apply:

(a) [t]he person’s omission or reckless act causes physical harm to a child.^[7]

(b) [t]he person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.”⁸

Fourth-degree child abuse is a general-intent crime. People v Isrow, 339 Mich App 522, 528 (2021). Fourth-degree child abuse requires that a defendant knowingly or intentionally engage in the action that created an unreasonable risk of harm or injury to a child; a defendant need not knowingly or intentionally intend to create the situation that exposed a child to an unreasonable risk of harm or injury. Isrow, 339 Mich App at 526-528. In Isrow, the defendant’s action—“[t]hrowing a set of keys knowing a child had been standing in the vicinity of the location in which the keys were thrown seconds before”—”pose[d] an unreasonable risk of harm or injury to a four-year-old child.” Isrow, 339 Mich App at 528.

B.Penalties for a Conviction Under Child Abuse Statute

1.Criminal Penalties for Convicted Offense

a.First-Degree Child Abuse

Under MCL 750.136b(2), first-degree child abuse is “a felony punishable by imprisonment for life or any term of years.” MCL 750.136b(2).

b.Second-Degree Child Abuse

Under MCL 750.136b(4), second-degree child abuse is “a felony punishable by imprisonment as follows:

(a) For a first offense, not more than 10 years.

(b) For an offense following a prior conviction, not more than 20 years.”

A violation of MCL 722.125(2) (intentional violation of a licensing rule promulgated under the child care licensing act, MCL 722.111 et seq., for family and group child care homes that causes the death of a child) constitutes second-degree child abuse and requires, in addition to any other penalty imposed, the permanent revocation of the person’s, organization’s, or agency’s license. MCL 722.125(2); MCL 750.136b(3).

c.Third-Degree Child Abuse

Under MCL 750.136b(6), third-degree child abuse is “a felony punishable by imprisonment as follows:

(a) For a first offense, not more than 2 years.

(b) For an offense following a prior conviction, not more than 5 years.”

d.Fourth-degree Child Abuse

Under MCL 750.136b(8), fourth-degree child abuse is “a crime punishable as follows:

(a) For a first offense, a misdemeanor punishable by imprisonment for not more than 1 year.

(b) For an offense following a prior conviction, a felony punishable by imprisonment for not more than 2 years.”

e.Enhanced Sentencing

“If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant’s prior conviction or convictions must be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:

(a) A copy of the judgment of conviction.

(b) A transcript of a prior trial, plea-taking, or sentencing.

(c) Information contained in a presentence report.

(d) The defendant’s statement.” MCL 750.136b(11).

2.Criminal Penalties if Convicted Offense Committed in Presence of Child Other Than The Victim

If a person commits child abuse “in the presence of a child other than the child who is the victim of the violation[, the person] is guilty of a felony punishable as follows:

(a) If the person [commits first-degree child abuse under MCL 750.136b(2)] in the presence of another child, by imprisonment for life or any term of years.

(b) Except as provided in subdivision (c), if the person [commits second-degree child abuse under MCL 750.136b(4)] in the presence of another child, by imprisonment for not more than 10 years.

(c) If the person [commits second-degree child abuse under MCL 750.136b(4)] in the presence of another child on a second or subsequent occasion, by imprisonment for not more than 20 years.

(d) If the person [commits third-degree child abuse under MCL 750.136b(6)] in the presence of another child, by imprisonment for not more than 2 years.” MCL 750.136d(1).

Note: “A charge and conviction under [MCL 750.136d] do not prohibit a person from being charged with, convicted of, or sentenced for any other violation of law arising out of the same transaction as the violation of [MCL 750.136d].” MCL 750.136d(2).

3.Restitution

Victims of child abuse are entitled to restitution. See MCL 780.766(2) (felony offense); MCL 780.794(2) (juvenile offenders); MCL 780.826(2) (misdemeanor offense).

For additional information on restitution, see the Michigan Judicial Institute’s Crime Victim Right’s Benchbook.

C.Defenses to Child Abuse

“[MCL 750.136b] does not prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force.” MCL 750.136b(9).

MCL 750.136b(10) provides an affirmative defense to a charge of child abuse under MCL 750.136b where “the defendant’s conduct involving the child was a reasonable response to an act of domestic violence^[9] in light of all the facts and circumstances known to the defendant at that time.”

Note: “The defendant has the burden of establishing the affirmative defense by a preponderance of the evidence.” MCL 750.136b(10).

D.Statute of Limitations

An indictment for child abuse “may be found and filed within 6 years after the offense is committed.” See MCL 767.24(10). However, “[a]ny period during which the party charged^[10] did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.”¹¹ MCL 767.24(11). “The extension or tolling, as applicable, of the limitations period provided in [MCL 767.24] applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.”MCL 767.24(12).

See People v Blackmer, 309 Mich App 199, 202 (2015) (finding that because “the plain and unambiguous language of the . . . nonresident tolling provision [of MCL 767.24¹²] provides that the limitations period [is] tolled for any period in which a defendant [is] not customarily and openly living in Michigan[,]” a “[d]efendant’s subjective intent [to return to Michigan following his or her term of incarceration in another state] is irrelevant[, and] . . . the statute of limitations [is] tolled from the time defendant [leaves] Michigan”).