There have been two recent high-profile arrests in Georgia where parents have been charged with child cruelty. Justin Ross Harris is currently in custody at the Cobb County Detention Center on charges of second degree child cruelty and felony murder for leaving his son in a hot car. Just yesterday, Recardo and Therian Wimbush were arrested on child cruelty charges for allegedly locking their 13 year old son in their basement for two years.
What exactly is “child cruelty” under Georgia law?
The crime is actually called “cruelty to children” and it is divided into 3 degrees. First degree cruelty to children requires that the person intentionally cause a child under the age of eighteen “cruel or excessive physical or mental pain.” Second degree cruelty to children only requires that the person cause such physical or mental pain with “criminal negligence” instead of any specific intent to cause harm. Third degree child cruelty is a different type of offense which involves a person who is engaged in fighting or some other type of violent conduct in the presence of a child. First degree cruelty to children carries a prison term from five to twenty years, second degree is punished by up to ten years in prison, and third degree child cruelty is a misdemeanor.
In the Harris case, the father is currently charged with second degree cruelty to children based on the allegation that he was criminally negligent in leaving his child in the hot car. Charging Mr. Harris with this offense does not require the State to prove that he knew his child was in the backseat when he went to work. It only requires that the State show that he was criminally negligent for not realizing his child was in the backseat for so long.
Criminal negligence in Georgia is more than just simple negligence. It requires that a person show a “willful, wanton, or reckless disregard for the safety of others” who might end up being injured by that person’s conduct. It is different from first degree cruelty to children because it doesn’t require the State to show that there was intent to cause cruel or excessive pain.
The Wimbushes have been charged with first degree cruelty to children because the State has alleged that they intentionally locked their child in the basement for the purpose of causing him pain. Although it appears the Wimbushes will argue that this was done for disciplinary reasons, this is not a defense if the child actually suffers cruel or excessive pain.
Other states have more specific laws governing child cruelty and child abuse. Some states even have specific statutes that cover a parent who either intentionally or negligently leaves his or her child in a hot car. In Georgia, however, whether a parent is found guilty or not will really depend upon both the prosecutor who decides to file charges and the jury that ultimately hears the case. In some cases, what may be cruel or excessive to one parent may be perfectly normal to another.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.