16.1 AGGRAVATED CHILD ABUSE

To prove the crime of Aggravated Child Abuse, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give 1a–1e as applicable.

a. committed Aggravated Battery upon (victim).

b. willfully tortured (victim).

c. maliciously punished (victim).

d. willfully and unlawfully caged (victim).

e. knowingly or willfully committed Child Abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement to (victim).

2. (Victim) was under the age of 18 years.

In order to prove that an Aggravated Battery was committed, the State must prove the following two elements. The first element is a definition of Battery.

1. (Defendant) actually and intentionally

Give 1a or 1b or both as applicable.

a. touched or struck (victim) against the will of (victim).

b. caused bodily harm to (victim).

Give 2a or 2b or both as applicable.

2. a. In so doing, (defendant) [intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement]] [or] [used a deadly weapon].

b. At the time, (victim) was pregnant and (defendant) knew or should have known (victim) was pregnant.

Parental affirmative defense. Give if applicable. See Raford v. State, 828 So. 2d 1012 (Fla. 2002). See § 39.01(49), Florida Statutes, if the defendant’s status as a parent is at issue.

§ 827.03, Fla. Stat., and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on affirmative defenses by a preponderance of the evidence. The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinions in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

It is not a crime for [a parent] [a person who is acting in place of a parent] of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline.

If burden of persuasion is on the defendant:

If you find that the defendant proved (insert appropriate burden of persuasion) that [he] [she] was [a parent] [a person acting in place of a parent] of (victim) and that [he] [she] imposed reasonable physical discipline on (victim) for misbehavior under the circumstances, you should find [him] [her] not guilty.