is punching a child in the stomach, enough to knock to the floor &
take the wind away, making the child unable to speak, but causing no
internal damage, child abuse or corporal punishment?  (state of
california)

Dear squint-ga;

Thank you for allowing me an opportunity to answer your interesting
question. A physical altercation between an adult and a child, such as
the one you described, in the state of California can easily be
construed as domestic violence, and as such, a serious crime.

CALIFORNIA PENAL CODE SECTION 11164-11174.3 speaks specifically about
child abuse and neglect.

11165.2. specifically addresses neglect and outlines ?maltreatment?,
?circumstances indicating harm or threatened harm to the child's
health or welfare? and other ?acts and omissions on the part of the
responsible person?.

This statute describes numerous circumstances where any person having
the care or custody of a child willfully causes or permits the person
or health of the child to be placed in a situation such that his or
her person or health is endangered. As a person who has spent the past
20 plus years in law enforcement I can assure you that I personally
would not stand idly and watch an adult punch a child in the gut and
not believe with ever fiber of my being that this was a danger to his
health.
   
Other statutes also back up the notion that gut punching is not normal
punishment but varying degrees of criminal abuse or assault:

?11165.3.  As used in this article, "the willful harming or injuring
of a child or the endangering of the person or health of a child,"
means a situation in which any person willfully causes or permits any
child to suffer, or inflicts thereon, unjustifiable physical pain or
mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of the child to be
placed in a situation in which his or her person or health is
endangered.?


?11165.4.  As used in this article, "unlawful corporal punishment or
injury" means a situation where any person willfully inflicts upon any
child any cruel or inhuman corporal punishment or injury resulting in
a traumatic condition.?

CALIFORNIA CODES
PENAL CODE
SECTION 11164-11174.3

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=06890310828+2+0+0&WAISaction=retrieve

There are also assault statutes:

?240.  An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.?

CALIFORNIA CODES
PENAL CODE
SECTION 240-248
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=07007815058+9+0+0&WAISaction=retrieve

?273a.  (a) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits any
child to suffer, or inflicts thereon unjustifiable physical pain or
mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of that child to be
injured, or willfully causes or permits that child to be placed in a
situation where his or her person or health is endangered, shall be
punished by imprisonment in a county jail not exceeding one year, or
in the state prison for two, four, or six years.?

?273d.  (a) Any person who willfully inflicts upon a child any cruel
or inhuman corporal punishment or an injury resulting in a traumatic
condition is guilty of a felony and shall be punished by imprisonment
in the state prison for two, four, or six years, or in a county jail
for not more than one year, by a fine of up to six thousand dollars
($6,000), or by both that imprisonment and fine.?

CALIFORNIA CODES
PENAL CODE
SECTION 270-273.75   
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=07047816630+1+0+0&WAISaction=retrieve

Oh yes. And by the way it gets progressively uglier if there have been
previous convictions. Bottom line ? gut punching (as you described it)
is, in my estimation as a career law enforcement professional, a cruel
and inhuman corporal punishment that risks injury and/or trauma (even
if its emotional trauma) and would not be considered an acceptable
form of corporal punishment, rather a form of assault, battery, abuse
and/or neglect according to the California Penal Code.

PS: "Child endangerment" statutes in California generally pertain
situations where a child is exposed to dangerous, unhealthy or illegal
activities or circumstances rather than first-hand assaults like the
one you described; so those really don't apply - just so you know why
I didn't mention those also.

I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise, I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad ? Google Answers Researcher


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SEARCH TERMS USED:

Child

Minor

Abuse

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Assault

Battery

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Punishment

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Request for Answer Clarification by squint-ga on 18 Sep 2005 14:46 PDT

i have access myself to this code.   it's not very specific, and i am
afraid that i do not find your answer satisfying. I am very glad,
however, that you have experience in law enforcement.

the child ran away from home for several hours, to the street.  would
this be considered a "traumatic condition" resulting from the punch? 
I mean, his physical health was not seriously affected.  The puncher
did not use his full strength, just enough to effect the condition
originally described.

i am with you, it offends every fibre of my being.  However, I cannot
find exact wording to confirm this, which is why I posted the original
question.

thank you

---

Clarification of Answer by tutuzdad-ga on 18 Sep 2005 15:16 PDT

The amount of force does not matter. It is the "unjustifiable physical pain or
mental suffering". Notice the statute says "OR", meaning that either
pain or suffering meets the requirements of 11165.3 at the very least.

You will also note that not only the assailant is liable, but the
custodian is also potentilaly criminally liable for having knowledge
of the matter and not prevailing in preventing it or reporting it. I
capitalize here for emphasis:

"having the CARE OR CUSTODY of any child, willfully causes OR PERMIT
the person or health of that child to be injured, or willfully causes
OR PERMITS that child to be placed in a situation where his or her
person or health is endangered"

Clearly a punch in the abdomen by an adult so severe that a child's
diaphram spasms and he temporarily loses his ability to breathe and is
forcefully knocked from his feet is a danger.

Furthermore, (I capitalize again for emphasis purposes) 11165.2.
specifically addresses neglect and outlines ?maltreatment?,
?circumstances INDICATING harm OR THREATENDED HARM to the child's
health or welfare? and OTHER ?ACTS and omissions on the part of the
responsible person?.

There are no two ways about it. The California statutes that I have
indicated are clear and to the point. Beating a child in the manner
you described as a means of corporal punishment IS illegal in the
state of California.

tutuzdad-ga

---

Clarification of Answer by tutuzdad-ga on 18 Sep 2005 17:53 PDT

There are so many statutory references forbidding the kind of violent
contact you described that the effort of compiling them all would
frustrate almost anyone. There are other examples besides those I have
given you. For example, consider this:

?273ab.  Any person who, having the care or custody of a child who is
under eight years of age, assaults the child by means of force that to
a reasonable person would be likely to produce great bodily injury,
resulting in the child's death, shall be punished by imprisonment in
the state prison for 25 years to life.?

FIND CALIFORNIA LAW
http://www.leginfo.ca.gov/calaw.html

Yes!  25 YEARS TO LIFE !  

Now, you might insist that the adult did not use maximum force to
achieve this effect. Not that it matters much under the law since a
minor is a minor - You don?t mention how old this child is, but you
must also understand that it doesn?t take a lot of force to rupture a
child?s spleen, lacerate a liver or burst an artery in the stomach,
intestine, heart or elsewhere. If that ever happened the child could
literally die before you could call 911 and explain what happened.

In a criminal investigation the hands, fists, and feet are always
officially considered weapons when they are used as a weapon. If
you?ve never read a post mortem report of a child who has been beaten
to death you will see the medical examiner?s reference in the part
describing ?weapon(s) used? listed as ?hands/feet?. And yes, sometimes
one strike is all it takes.

There is no doubt that an adult punching a child under the
circumstances you mentioned is illegal in that state.

I hope this clarifies. I look forward to your final rating and comments.

Regards;
Tutuzdad-ga

I think this would have been a better answer if I had asked a better
question.  This is a really grey area;  I would welcome the chance to
communicate w/ tutuzdad-ga, clarify the situation, and hear his
opinion.

Well, I don't know about Calif. law, but this is clearly child abuse
from a common-sense perspective.

i talked to a former CPS worker this AM.  She said that it is illegal
to hit a child in the state of California with anything but the open
hand (ie, a belt or fist is illegal)
this would have been good info to have in the answer

I certainly would have offered that information if I had found it to
be true. But I did not. DANIEL E. LUNGREN, the Attorney General of the
state of California at the time, issued his opinion No. 97-416 on this
very same question in 1997:

"The question presented for resolution concerns corporal punishment
administered by a parent. Specifically, may a parent spank a child for
disciplinary purposes with an object other than the open hand?

We conclude that the punishment may be so administered as long as it
is necessary and not excessive in relation to the individual
circumstances.

http://caag.state.ca.us/opinions/published/97-416.htm

If you read on you will see that the information you were given is not
necessarily true and the CPS worker's interpretation of the law is not
necessarily factual.

So, THAT, you see, is why I did not offer the information you
mentioned in my answer.

Regards;
tutuzdad-ga

Squint,
Tutuzdad in his last clarification did tell you that what you
described was illegal, just as did the CPS worker (and just as anyone
reading the references would understand).  The law expresses the
matter in more general terms, as is usual, otherwise it would have to
list every possible individual way "unjustifiable physical pain" could
be inflicted.  There is no "grey area", as you suggest under your
rating, just an unwillingness to accept the common sense
interpretation of the law.
"the child ran away from home for several hours, to the street.  would
this be considered a "traumatic condition" ...?
Yes, it absolutely would be.  Traumatic refers also to emotional
response, regardless of the physical aspect.
Myoarin

thank you, tutuzdad & myoarin
now, "spanking" implies the buttocks, which kind of begs the question
about whether it would be okay to hit a child with an object or a fist
in a place other than the buttocks...
sorry to be so nitpicky about this.  i reported the incident to CPS,
just trying to deal with subsequent guilt

You should only feel guilt for failure to report.  It is now up to
them (and the court, I guess) to decide innocence or guilt of the
perpetrator.

Squint,
I am very glad you reported the incident.

In 1997 "the Assembly Public Safety Committee approved, by a 5-4
margin, a bill by Assemblyman Mickey Conroy (R-Orange) that would
allow a judge to order a parent or bailiff to whack children up to 10
times with a half-inch-thick wooden paddle."

CORPUN
http://www.corpun.com/usju9601.htm

It is legal in some instances to use an "aid" other than the hand to
affect such a punishment but I found no references to strike areas
other than the buttocks.

tutuzdad-ga

The answer is correct, but there does not appear any need to speculate
from statutory text alone. Although the following cases are
unpublished, with limits their precedential value, I don't doubt that
they correctly state California's position that punching a child is
abuse, not discipline.

People v Carillo, No. H027607, 2005 Cal. App. Unpub. LEXIS 7721 (6th
Dist., Aug. 26, 2005), in which the defendant was convicted of various
acts of abuse involving his children, including  "one count of
misdemeanor assault ( § 240, count 1) for punching the same child in
the stomach".

In re A.Z., No. D046277, 2005 Cal. App. Unpub. LEXIS 8207 (4th Dist.,
September 13, 2005), in which the Court of Appeals observed, "In
addition to facial or head injuries, serious physical harm includes
less serious injuries inflicted in a manner that might have caused
more serious injury, and other inappropriate actions such as kicking,
punching or choking a child. (Sen. Select Com. on Children & Youth,
Sen. Bill No. 1195, Task Force Rep. on Child Abuse Reporting Laws,
Juvenile Court Dependency Statutes, and Child Welfare Services (Jan.
1988), p. 6.)"

Okay, folks, I talked to the dad.  He said the social worker thought
he was totally in line, and is suffering NO consequences at all, not
even anger management classes.  On the plus side, he and the boy are
getting along much better, so I guess something good came of it,
maybe.