HB-4486, As Passed House, February 8, 2018
SUBSTITUTE FOR
HOUSE BILL NO. 4486
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
by amending section 136b (MCL 750.136b), as amended by 2016 PA 488.
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 food,
clothing, or shelter necessary for a child's welfare or 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
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.
(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 harm
or serious mental harm to a child. Child abuse in the first degree
is a felony punishable by imprisonment for life or any term of
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.
(d) The person or a licensee, as licensee is defined in
section 1 of 1973 PA 116, MCL 722.111, violates section 15(2) of
1993
PA 218, 1973 PA 116, MCL 722.125.
(4) Child abuse in the second degree is a felony punishable by
imprisonment as follows:
(a) For a first offense, not more than 10 years.
(b)
For a second or subsequent an
offense following a prior
conviction, not more than 20 years.
(5) A person is guilty of child abuse in the third degree if
any of the following apply:
(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 poses an unreasonable risk of harm or
injury to a child, and the act results in physical harm to a child.
(6) Child abuse in the third degree is a felony punishable by
imprisonment
for not more than 2 years.as
follows:
(a) For a first offense, not more than 2 years.
(b) For an offense following a prior conviction, not more than
5 years.
(7) A person is guilty of child abuse in the fourth degree if
any of the following apply:
(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 poses an unreasonable risk of harm or
injury to a child, regardless of whether physical harm results.
(8) Child abuse in the fourth degree is a crime punishable as
follows:
(a) For a first offense, a misdemeanor punishable by
imprisonment for not more than 1 year.
(b) For an offense following a prior conviction, a felony
punishable by imprisonment for not more than 2 years.
(9) 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
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) If the prosecuting attorney intends to seek an enhanced
sentence based upon the defendant having 1 or more prior
convictions, the prosecuting attorney shall include on the
complaint and information a statement listing the prior conviction
or convictions. The existence of the defendant's prior conviction
or convictions must be determined by the court, without a jury, at
sentencing or at a separate hearing for that purpose before
sentencing. The existence of a prior conviction may be established
by any evidence relevant for that purpose, including, but not
limited to, 1 or more of the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial, plea-taking, or sentencing.
(c) Information contained in a presentence report.
(d) The defendant's statement.
(12) As used in this section, "prior conviction" means a
violation of this section or a violation of a law of another state
substantially corresponding to this section.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.