Request By:
Honorable Ernest A. Jasmin
Assistant Commonwealth's Attorney
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As an Assistant Commonwealth Attorney in the Thirtieth Judicial District of Kentucky (Jefferson County) responsible for the prosecution of child abuse cases, you have asked the Office of the Attorney General to consider KRS 208.020(4). This section of our juvenile laws reads, as amended by the 1978 General Assembly, as follows:
"No person shall willfully and unnecessarily expose to the inclemency of the weather, or in any other manner willfully injure in health or limb any child actually or apparently under the age of sixteen (16) years. The juvenile session of district court shall have exclusive jurisdiction of persons who violate this subsection."
You frustratingly noted that motions to dismiss indictments in the circuit court for assault in the first degree, assault in the second degree, sodomy, rape, etc., are being made on the purported authority for the exclusive juvenile court jurisdiction stated in the above statute. You stated it seemed to you if the language "wilfully injure in health or limb" in KRS 208.020(4) is to be read this broadly, virtually any physical injury committed against a child under age sixteen would subject the assailant to, at the most, a penalty of twelve months in jail and/or a five hundred dollar fine. We do not, however, believe KRS 208.020(4) can begin to be interpreted so broadly and further believe several statutes serve to adequately support our conclusion.
KRS 208.020(4) is not a new provision in our juvenile laws and has been referred to at times as one of the so-called "contributing statutes," subsections (3) and (5) of KRS 208.020 also being included in this group. However, in view of amendments made over the course of the last four sessions of the General Assembly, we believe subsection (4) could more aptly be described as a "child abuse" statute. Support for this description comes from KRS 199.335(1) which states as follows:
"The purpose of this section, sections 530.060, 530.070, subsections (4) and (5) of KRS 208.020 and subsections (4) and (5) of KRS 208.990 is to provide for the identifying of any abused or neglected child; to require reports of any suspected abused or neglected child; to assure that the protective services of the state will be made available to an abused or neglected child in order to protect such a child and his siblings; to further prevent abuse or neglect; to preserve and strengthen family life, where possible, by enhancing parental capacity for adequate child care; and to provide for immediate and prompt investigation of such reports."
Note that KRS 208.990(4) referred to in KRS 199.335(1) is the penalty provision for KRS 208.020(4). Thus, KRS 208.020(4) and its penalty provision has the General Assembly-stated purpose of identifying abused and neglected children. Child abuse is to be reported under KRS 199.335, and for a child under the age of sixteen is to be prosecuted under KRS 208.020(4). The penalty presented by KRS 208.990(4) of twelve months in jail and/or five hundred dollar fine is the same as a Class A misdemeanor. See KRS 532.090 and 534.040. Note that KRS 208.020(3) which refers to KRS 530.060 (endangering welfare of minors) and KRS 530.070 (unlawful transaction with minor) which sections of the Kentucky Penal Code are also Class A misdemeanors.
Since KRS 208.020(4) is to apply to a "abused or neglected child, " it is necessary to look at the definition of this term. KRS 208.010(5) states:
"'Abused or neglected child' has the same meaning as in subsection (6) of KRS 199.011;"
KRS 199.011(6), as amended in 1978, reads as follows:
"'Abused or neglected child' means a child whose health or welfare is harmed or threatened with harm when his parent, guardian or other person who has the permanent or temporary care, custody or responsibility for the supervision of the child: inflicts or allows to be inflicted upon the child, physical or mental injury to the child by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food, clothing and shelter; education; or medical care necessary for the child's well-being; Provided, however, that a parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian. This exception, however, shall not preclude a court from ordering that medical services be provided to the child, where his health requires it."
Looking at these several closely interconnected statutes together, we believe it is clear that KRS 208.020(4) relates to the abuse of a child under sixteen and that those subject to the charge of child abuse by definition are a child's "parent, guardian or other person who has the permanent or temporary care, custody or responsibility for the supervision of the child." Other individuals who inflict physical injury or otherwise abuse a child under sixteen are not within the scope of KRS 208.020(4) and are therefore subject to the application of the usual criminal statutes covering the facts as warranted.
Moreover, we do not believe KRS 208.020(4) is applicable even to a "parent, guardian or other person who has the permanent or temporary care, custody or responsibility for the supervision of the child" who has committed what might be called "felony child abuse. " Acts of assault in the first degree (KRS 508.010) or assault in the second degree (KRS 508.020); rape in the first degree (KRS 510.040), rape in the second degree (KRS 510.050), rape in the third degree (KRS 510.060); or sodomy in the first degree (KRS 510.070) or sodomy in the second degree (KRS 510.080) or sodomy in the third degree (KRS 510.090); sexual abuse in the first degree (KRS 510.110) or sexual abuse in the second degree (KRS 510.120), or incest (KRS 530.020), committed against a child under age sixteen are not mer "wilful injuries" to the child. under age sixteen are not mere "wilful injuries" to the child. These criminal acts have such crucial elements as intentional inflicting of serious physical injury or forceable compulsion. There is just too much difference between an unnecessary exposure to the inclemency of the weather or a wilful injury of a child and these felony acts to put them in the same category. We believe that a parent, guardian or other person who has the permanent or temporary care, custody or responsibility for the supervision of a child may be held to answer for such "felony child abuse" charges in a circuit court action rather than the juvenile division of the district court; and, as we stated and concluded above, we believe a "stranger" to a child who commits any form of abuse against a child under sixteen is not subject to being prosecuted under KRS 208.020(4) but may be prosecuted under the usual criminal laws governing such acts.