HOUSE BILL NO. 5112

A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending section 136b (MCL 750.136b), as amended by 2020 PA 49.

The people of the state of michigan enact:

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

(a) "Child" means a person an individual 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) "Developmental disability" means either of the following as diagnosed by a physician or other licensed medical professional:

(i) If applied to an individual older than 5 years of age, a severe, chronic condition that meets all of the following requirements:

(A) Is attributable to a mental or physical impairment or a combination of mental and physical impairments.

(B) Is manifested before the individual is 22 years old.

(C) Is likely to continue indefinitely.

(D) Results in substantial functional limitations in 3 or more of the following areas of major life activity:

(I) Self-care.

(II) Receptive and expressive language.

(III) Learning.

(IV) Self-direction.

(E) Reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.

(ii) If applied to a minor from birth to 5 years of age, a substantial developmental delay or a specific congenital or acquired condition with a high probability of resulting in developmental disability as defined in subparagraph (i) if services are not provided.

(d) "Mental illness" means a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life that was diagnosed by a physician or other licensed medical professional.

(e) (c) "Omission" means a willful failure to provide food, clothing, or shelter necessary for a child's welfare or willful abandonment of a child.

(f) (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.

(g) "Physical disability" means a determinable physical characteristic of an individual that may result from disease, injury, congenital condition of birth, or functional disorder that was diagnosed by a physician or other licensed medical professional.

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

(i) "Physician or other licensed medical professional" means a person licensed under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

(j) (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.

(k) (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.

(l) "Vulnerable child" means an individual who is less than 18 years of age, who is not emancipated by operation of law under section 4 of 1968 PA 293, MCL 722.4, and who has a developmental disability, mental illness, or physical disability, or is nonverbal.

(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 1973 PA 116, MCL 722.125.

(4) Child abuse in the second degree is a felony punishable by imprisonment as follows:

(a) For Except as provided in subdivision (c), for a first offense, not more than 10 years.

(b) For an offense following a prior conviction, not more than 20 years.

(c) For a first offense, if the victim is a vulnerable child and the offense occurs in either of the following situations, not more than 15 years:

(i) While the person is performing duties in a facility or home regulated under 1973 PA 116, MCL 722.111 to 722.128.

(ii) While the person is acting within the health profession for which the person is licensed, registered, or otherwise authorized to engage in the practice of under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

(5) A person is guilty of child abuse in the third degree if any either of the following apply: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 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 as follows:

(a) For Except as provided in subdivision (c), for a first offense, not more than 2 years.

(b) For an offense following a prior conviction, not more than 5 years.

(c) For a first offense, if the victim is a vulnerable child and the offense occurs in either of the following situations, not more than 3 years:

(i) While the person is performing duties in a facility or home regulated under 1973 PA 116, MCL 722.111 to 722.128.

(ii) While the person is acting within the health profession for which the person is licensed, registered, or otherwise authorized to engage in the practice of under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

(7) A person is guilty of child abuse in the fourth degree if any either of the following apply: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 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 Except as provided in subdivision (c), 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.

(c) For a first offense, if the victim is a vulnerable child and the offense occurs in either of the following situations, a felony punishable by imprisonment for not more than 2 years:

(i) While the person is performing duties in a facility or home regulated under 1973 PA 116, MCL 722.111 to 722.128.

(ii) While the person is acting within the health profession for which the person is licensed, registered, or otherwise authorized to engage in the practice of under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

(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.