OUJI-CR 4-36

ENABLING CHILD ABUSE - ELEMENTS

No person may be convicted of enabling the abuse of a child unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a person responsible for a child's health, safety, or welfare;

Second, willfully/maliciously caused/procured/permitted;

Third, a willful/malicious act of harm/(threatened harm);

Fourth, to the health, safety, or welfare;

Fifth, of a child under the age of eighteen;

Sixth, by another person responsible for a child's health, safety, or welfare..

OR

First, a person responsible for a child's health, safety, or welfare;

Second, willfully/maliciously caused/procured/permitted;

Third, another person responsible for a child's health, safety, or welfare;

Fourth, to willfully/maliciously fail to protect from harm/(threatened harm) to the health, safety, or welfare;

Fifth, of a child under the age of eighteen;

OR

First, a person responsible for a child's health, safety, or welfare;

Second, willfully/maliciously caused/procured/permitted;

Third, another person;

Fourth, to willfully/maliciously injure/torture/maim;

Fifth, a child under the age of eighteen.

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Statutory Authority: 21 O.S. Supp. 2021, § 843.5(B), (O)(1), (O)(5).

Notes On Use

A definition of "procured" is found in OUJI-CR 4-40D, infra.

Committee Comments

What distinguishes the crime of child abuse from the crime of enabling child abuse under 21 O.S. Supp. 2021, § 843.5(B) is that enabling child abuse involves the "causing, procuring or permitting" of the willful or malicious harm or threatened harm or failure to protect from harm or threatened harm to the health, safety, or welfare of a child. A person who caused or procured child abuse would be guilty of child abuse as a principal. See OUJI-CR 2-5, supra. However, a person who permitted child abuse would not necessarily be guilty of child abuse. In order to be guilty of enabling child abuse by permitting it under 21 O.S. Supp. 2021, § 843.5(B), a person must 1) authorize or allow for the child's care, and 2) know or reasonably should know that the child is being placed at risk of abuse. Under 21 O.S. Supp. 2021, § 843.5(B), enabling child abuse includes both the causing, procuring or permitting a willful or malicious act of harm or threatened harm or failure to protect from harm or threatened harm to the healt, safety, or welfare of a child, and causing, procuring or permitting the willful or malicious injury, torture or maiming of a child.

In Fairchild v. State, 1999 OK CR 49, ¶ 51, 998 P.2d 611, 622-23, the Oklahoma Court of Criminal Appeals decided that the mens rea for felony murder of a child under 21 O.S. Supp. 1999, § 701.7(C) was a general intent to commit the act which causes the injury, rather than a specific intent, and that the general intent was included within the terms "willfully" or "maliciously."

(2022 Supp.)