16.3 CHILD ABUSE

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

1. (Defendant) knowingly or willfully abused (victim) by:

Give as applicable.

a. intentionally inflicting [physical] [or] [mental] injury upon (victim).

b. committing an intentional act that could reasonably be expected to result in [physical] [or] [mental] injury to (victim).

c. actively encouraging another person to commit an act that resulted in or could reasonably have been expected to result in [physical] [or] [mental] injury to (victim).

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

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 opinion 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.