SB-0158, As Passed House, December 18, 2008

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 158

     A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending section 136b (MCL 750.136b), as amended by 1999 PA 273.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 136b. (1) As used in this section:

     (a) "Child" means a person who is less than 18 years of age

and is not emancipated by operation of law as provided in section 4

of 1968 PA 293, MCL 722.4.

     (b) "Cruel" means brutal, inhuman, sadistic, or that which

torments.

     (c) "Omission" means a willful failure to provide the food,

clothing, or shelter necessary for a child's welfare or the willful

abandonment of a child.

     (d) "Person" means a child's parent or guardian or any other

person who cares for, has custody of, or has authority over a child

regardless of the length of time that a child is cared for, in the

Senate Bill No. 158 (H-1) as amended December 18, 2008

custody of, or subject to the authority of that person.

     (e) "Physical harm" means any injury to a child's physical

condition.

     (f) "Serious physical harm" means any physical injury [to a

child that seriously impairs the child's health or physical well-

being, including, but not limited to, brain damage, a skull or bone

fracture, subdural hemorrhage or hematoma, dislocation, sprain,

internal injury, poisoning, burn or scald, or severe cut. THAT REQUIRES

 MEDICAL ATTENTION.]

     (g) "Serious mental harm" means an injury to a child's mental

condition or welfare that is not necessarily permanent but results

in visibly demonstrable manifestations of a substantial disorder of

thought or mood which significantly impairs judgment, behavior,

capacity to recognize reality, or ability to cope with the ordinary

demands of life.

     (2) A person is guilty of child abuse in the first degree if

the person knowingly or intentionally causes serious physical or

serious mental harm to a child. Child abuse in the first degree is

a felony punishable by imprisonment for not more than 15 years.

     (3) A person is guilty of child abuse in the second degree if

any of the following apply:

     (a) The person's omission causes serious physical harm or

serious mental harm to a child or if the person's reckless act

causes serious physical harm or serious mental harm to a child.

     (b) The person knowingly or intentionally commits an act

likely to cause serious physical or mental harm to a child

regardless of whether harm results.

     (c) The person knowingly or intentionally commits an act that

is cruel to a child regardless of whether harm results.

     (4) Child abuse in the second degree is a felony punishable by

imprisonment for not more than 4 years.

     (5) A person is guilty of child abuse in the third degree if

the either of the following applies:

     (a) The person knowingly or intentionally causes physical harm

to a child.

(b) The person knowingly or intentionally commits an act that

under the circumstances creates an unreasonable risk of harm to a

child, and the act results in physical harm to a child.

     (6) Child abuse in the third degree is a misdemeanor felony

punishable by imprisonment for not more than 2 years.

(7) (6) A person is guilty of child abuse in the fourth degree

if the either of the following applies:

     (a) The person's omission or reckless act causes physical harm

to a child.

(b) The person knowingly or intentionally commits an act that

under the circumstances creates an unreasonable risk of harm to a

child, regardless of whether physical harm results.

     (8) Child abuse in the fourth degree is a misdemeanor

punishable by imprisonment for not more than 1 year.

(9) (7) This section does not prohibit a parent or guardian,

or other person permitted by law or authorized by the parent or

guardian, from taking steps to reasonably discipline a child,

including the use of reasonable force.

     (10) It is an affirmative defense to a prosecution under this

section that the defendant's conduct involving the child was a

Senate Bill No. 158 (H-1) as amended December 18, 2008

reasonable response to an act of domestic violence in light of all

the facts and circumstances known to the defendant at that time.

The defendant has the burden of establishing the affirmative

defense by a preponderance of the evidence. As used in this

subsection, "domestic violence" means that term as defined in

section 1 of 1978 PA 389, MCL 400.1501.

[(11) THE DEFENDANT HAS THE BURDEN OF ESTABLISHING THE AFFIRMATIVE DEFENSE DESCRIBED IN THIS SUBSECTION BY A PREPONDERANCE OF THE EVIDENCE.  IT IS AN AFFIRMATIVE DEFENSE TO A PROSECUTION UNDER SUBSECTIONS (3) AND (7) THAT THE DEFENDANT'S CONDUCT INVOLVING THE CHILD ATTRIBUTABLE TO THE PROVISION OF TREATMENT BY SPIRITUAL MEANS IN LIEU OF MEDICAL CARE WAS REASONABLE UNDER THE CIRCUMSTANCES.  THE FOLLOWING FACTORS SHALL BE RELEVANT FOR PURPOSES OF EVALUATING REASONABLENESS UNDER THIS SECTION:

     (A) THE AGE, MATURITY, AND CAPACITY OF THE CHILD.

     (B) THE CONDITION FOR WHICH THE CHILD WAS BEING TREATED.

     (C) WHETHER THE CHILD EXHIBITED CLEAR SYMPTOMS OF A CONDITION THAT IS LIFE-THREATENING OR WOULD RESULT IN SERIOUS DISABILITY.

     (D) THE LENGTH OF TIME DURING WHICH THE CHILD EXPERIENCED THE CONDITION.

     (E) THE LIKELIHOOD THAT MEDICAL TREATMENT WOULD HAVE SUCCEEDED IN REMEDYING THE CHILD’S CONDITION INCLUDING CONSIDERATION OF THE RISKS OF HARM OR NEGATIVE SIDE EFFECTS ASSOCIATED WITH UNDERGOING MEDICAL TREATMENT AND THE RISKS OF HARM FROM FAILURE TO PROVIDE MEDICAL TREATMENT.

     (F) THE PAST EXPERIENCE OF THE FAMILY IN RELYING UPON MEDICAL TREATMENT.

     (G) THE PAST EXPERIENCE OF THE FAMILY IN RELYING UPON SPIRITUAL TREATMENT.]

     Enacting section 1. This amendatory act takes effect April 1,

2009.