OUJI-CR 4-40D

CRIMES AGAINST CHILDREN - DEFINITIONS

Abandonment of a child -

A willful refusal or failure to adequately provide for a child, and not a mere failure on account of inability.

References: 21 O.S. 2021, § 853; Bingham v. State, 1971 OK CR 322, ¶ 9, 488 P.2d 603, 604; Rowden v. State, 1964 OK CR 120, ¶ 11, 397 P.2d 515, 517.

Committee Comments

A different definition of abandonment is found in the Oklahoma Children's Code at l0A O.S. 2021, § 1-1-105(1). The above definition is more appropriate for the criminal context than the definition in the Oklahoma Children's Code, which applies to termination of parental rights.

Child -

Any person under eighteen years of age.

Committee Comments

Although l0A O.S. 2021, § 1-1-105(8) defines a child as an unmarried person under the age of 18, the Committee has concluded this definition should not be applied to limit the scope of 21 O.S. 2021, § 843.5 to unmarried persons because the plain language of section 843.5 specifies that it applies to a child under the age of eighteen without any limitation that the child must be unmarried.

The Oklahoma Court of Criminal Appeals has decided that the child neglect statute, 21 O.S. 2021, § 843.5, includes protection for an unborn child. State v. Allen, 2021 OK CR 14, ¶ 7, 492 P.3d 27, 29; State v. Green, 2020 OK CR 18, ¶ 12, 474 P.3d 886, 891.

Child Abuse -

Willful/Malicious (harm)/(threatened harm)/(failure to protect from (harm)/(threatened harm)) to the health, safety, or welfare of a child by a person responsible for the child's health, safety, or welfare.

OR

Willfully/Maliciously injuring/torturing/maiming a child under the age of eighteen.

Reference: 21 O.S. 2021, § 843.5(O)(1)

Notes on Use

This definition is to be used with OUJI-CR 4-40B supra for child endangerment.

Child Neglect -

The willful/malicious neglect of a child under eighteen (18) years of age by a person responsible for a child's health, safety or welfare.

Reference: 21 O.S. 2021, § 843.5(O)(2).

Child Sexual Abuse -

The willful/malicious sexual abuse of a child under eighteen (18) years of age by a person responsible for a child's health, safety or welfare and includes, but is not limited to: (sexual intercourse)/(penetration of the vagina or anus, however slight, by an inanimate object or any part of the human body not amounting to sexual intercourse)/sodomy/incest/(a lewd act/proposal).

Reference: 21 O.S. 2021, § 843.5(O)(3).

Child Sexual Exploitation -

The willful/malicious sexual exploitation of a child under eighteen (18) years of age and includes, but is not limited to: (human trafficking that involved child trafficking for commercial sex)/(trafficking in children, if the offense was committed for the sexual gratification of any person)/(procuring/causing the participation of a minor in child pornography)/(purchase/procurement/ possession of child pornography)/((engaging in)/soliciting prostitution, if the offense involved child prostitution)/(publication/distribution/participation in the preparation of obscene material, if the offense involved child pornography)/(aggravated possession of child pornography)/(sale/ distribution of obscene material)/(soliciting sexual conduct/communication with a minor by use of technology)/(offering/transporting a child for purposes of prostitution/(child prostitution).

Reference: 21 O.S. 2021, § 843.5(O)(4).

Enabling Child Abuse -

The causing/procuring/permitting of child abuse by a person responsible for a child's health, safety or welfare.

Reference: 21 O.S. 2021, § 843.5(O)(5).

Enabling Child Neglect -

The causing/procuring/permitting of child neglect by a person responsible for a child's health, safety or welfare.

Reference: 21 O.S. 2021, § 843.5(O)(6).

Enabling Child Sexual Abuse -

The causing/procuring/permitting of child sexual abuse by a person responsible for a child's health, safety or welfare.

Reference: 21 O.S. 2021, § 843.5(O)(7).

Enabling Child Sexual Exploitation -

The causing/procuring/permitting of child sexual exploitation by a person responsible for a child's health, safety or welfare.

Reference: 21 O.S. 2021, § 843.5(O)(8).

Harm/(Threatened Harm) to the Health or Safety of a Child -

Any real/threatened physical/mental/emotional injury/damage to the body/mind that is not accidental.

Reference: 10A O.S. 2021, § 1-1-105(2)(a).

Committee Comments

The definition of "abuse" in 10A O.S. 2021, § 1-1-105(2) states that it involves harm or threatened harm to the health, safety, or welfare of a child, and then the statute defines "harm or threatened harm to the health or safety of a child." The statutes, however, do not provide a definition of harm or threatened harm to the welfare of a child.

Incest -

Marrying/(Committing adultery)/Fornicating with a child by a person responsible for the health, safety or welfare of a child.

Reference: 21 O.S. 2021, § 843.5(O)(9).

Knowingly-

With personal awareness of the facts.

Reference: 21 O.S. 2021, § 96.

Lewd Act or Proposal -

(Making any oral/written/electronic/computer-generated lewd/indecent proposal to a child for the child to have unlawful sexual relations/intercourse with any person)/((Looking upon)/Touching/Mauling/Feeling the body/(private parts of a child) (in a lewd/lascivious manner)/(for the purpose of sexual gratification)/(Asking/Inviting/Enticing/Persuading any child to go alone with any person to a secluded/remote/secret place for a lewd/lascivious purpose)/(Urinating/Defecating upon a child)/(Causing/Forcing/Requiring a child to defecate/urinate upon the body/(private parts) of another person for the purpose of sexual gratification)/(Ejaculating upon/(in the presence of) a child/(Causing/Exposing/Forcing/Requiring a child to look upon the body/(private parts of another person) for the purpose of sexual gratification)/(Causing/Forcing/Requiring any child to view any (obscene materials)/(child pornography)/(materials deemed harmful to minors)/(Causing/Exposing/Forcing/Requiring a child to look upon sexual acts performed in the presence of the child for the purpose of sexual gratification)/(Causing/Forcing/Requiring a child to touch/feel the body/(private parts) of the child/(another person) for the purpose of sexual gratification).

Reference: 21 O.S. 2021, § 843.5(O)(10).

Maiming -

Infliction on another of a physical injury that disables or disfigures or seriously diminishes physical vigor, performed with the intent to cause any injury.

Malicious -

The term imports a wish to vex, annoy or injure another person.

Reference: 21 O.S. 2021, § 95.

Neglect -

Failure or omission to provide a child under the age of eighteen with [select from the following: adequate (nurture and affection)/food/clothing/shelter/ sanitation/hygiene/(appropriate education)/(medical/dental/(behavioral health) care/supervision/(appropriate caretakers) to protect the child from harm/(threatened harm) of which any reasonable and prudent person responsible for the child's health, safety or welfare would be aware]/(special care made necessary for the child's health and safety by the physical/mental condition of the child)].

OR

Failure or omission to protect a child under the age of eighteen from exposure to: [select from the following: the use/possession/sale/manufacture of illegal drugs)/(illegal activities)/(sexual acts or materials that are not age-appropriate).]

OR

Abandonment of a child under the age of eighteen.

Reference: 10A O.S. 2021, § 1-1-105(49).

Person Responsible for a Child's Health, Safety or Welfare -

A parent/(legal guardian)/custodian/(foster parent)/(a person eighteen (18) years of age or older with whom the child's parent cohabitates, who is at least three (3) years older than the child)/(a person eighteen (18) years of age or older residing in the home of the child, who is at least three (3) years older than the child)/(an owner/operator/agent/employee/volunteer of a public/private [residential home/institution/facility]/[day treatment program] that the child attended)/(an owner/operator/employee/volunteer of a child care facility that the child attended)/(an intimate partner of the parent of the child)/(a person who has voluntarily accepted responsibility for the care or supervision of the child).

Reference: 21 O.S. 2021, § 843.5(O)(12).

Permit-

To authorize or allow for the care of the child by an individual when the person authorizing or allowing such care knew or reasonably should have known that the child would be placed at risk of abuse/neglect/(sexual abuse)/(sexual exploitation).

Reference: 21 O.S. 2021, § 843.5(O)(11).

Procure -

To induce or bring about.

References: Webster's Third New International Dictionary 1809 (2002); Black's Law Dictionary 1327 (9th ed. 2009).

Sexual Intercourse -

The actual penetration, however slight, of the vagina or anus by the penis.

Reference: 21 O.S. 2021, § 843.5(O)(13).

Sodomy-

Penetration, however slight, of the (mouth of the child by a penis)/(vagina of a person responsible for a child's health, safety or welfare, by the mouth of a child)/(mouth of the person responsible for a child's health, safety or welfare by the penis of the child)/(vagina of the child by the mouth of the person responsible for a child's health, safety or welfare).

Reference: 21 O.S. 2021, § 843.5(O)(13) ).

Torture -

Infliction of either great physical pain or extreme mental cruelty.

Reference: Berget v. State, 1991 OK CR 121, ¶ 31, 824 P.2d 364, 373; The Random House Dictionary (2d ed. 1988). But see Atterberry v. State, 1986 OK CR 186, ¶ 9, 731 P.2d 420, 423 (child abuse statute did not prohibit "threatened harm" or infliction of a"mental injury").

Unreasonable Force -

More than that ordinarily used as a means of discipline.

Reference: 21 O.S. 2021, § 844.

Willful -

Purposeful. "Willful" is a willingness to commit the act or omission referred to, but does not require any intent to violate the law or to acquire any advantage.

References: 21 O.S. 2021, § 92. Tarver v. State, 1982 OK CR 156, ¶¶ 12, 13, 651 P.2d 1332, 1334.

Committee Comments

Unlike other definitions of "willful" in these Uniform Jury Instructions, the definition of "willful" in OUJI-CR 4-40D deletes the phrase "or to injure another" in 21 O.S. 2021, § 92. The Oklahoma Court of Criminal Appeals decided in Hockersmith v. State, 1996 OK CR 51, ¶ 12, 926 P.2d 793, 795, and Bannister v. State, 1996 OK CR 60, ¶¶ 5-6, 930 P.2d 1176, 1178, that the definition of "willful" in the context of a prosecution for the felony murder of a child under 21 O.S. Supp. 1999, § 701.7(C), should not have eliminated the requirement of an intent to injure. The above definition of "willful" conforms to the Hockersmith and Bannister cases. In Fairchild v. State, 1999 OK CR 49, ¶¶ 32, 45, 998 P.2d 611, 619, 621-22, the Court of Criminal Appeals overruled the Hockersmith and Bannister cases, but the Court also directed that the above definition of "willful" should continue to be used in prosecutions for the felony murder of a child under 21 O.S. Supp. 1999, § 701.7(C). Fairchild v. State, 1999 OK CR 49, ¶ 75, 998 P.2d at 626.

(2024 Supp.)