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Responding to Child Homicide: A Statutory Proposal

NCJ Number
Journal of Criminal Law and Criminology Volume: 89 Issue: 2 Dated: Winter 1999 Pages: 535-614
Charles A. Phipps
Date Published
80 pages
In reviewing child homicide statutes in relation to caregivers, this article analyzes sociological and medical information related to child homicide in the United States, considers case law which highlights the difficulty in establishing intent in child homicide cases, examines current child homicide statutes in the United States, and presents model child homicide statutes and recommendations.
A child homicide statute should provide a strong statement that society recognizes child homicide as a problem and is willing to respond to the problem in a responsible manner. Consequently, a State should enact a child homicide statute only after thoughtful consideration as to the purpose, content, and effect of such a statute. In this way, child homicide statutes can provide a useful tool in the fight against child abuse. As discussed, the best approach is to consider the range of fatal injuries inflicted on children and draft comprehensive statutes that adopt penalties appropriate to the various offenses. When this is not feasible, a single carefully drafted child homicide statute may sufficiently address the majority of child homicide facts. The ultimate goal of all such statutes should be to create a punishment that is proportionate to the conduct of killing a child by other than accidental means. In reviewing child homicide at the hands of a caregiver in the United States, a finder of fact must be convinced that a defendant acted with a particular mental state to convict the person of murder, and many juries as well as judges are reluctant to make such a finding when a child is killed at the hands of a caretaker for reasons such as unclear motive, lack of external injuries, the general inability of people to believe that adults kill children in their care. Some legislatures have begun to actively encourage useful innovations, such as special homicide statutes. Statutes that have two basic forms: (1) a child homicide statute that simply lists a child physical abuse offense as an enumerated felony in a felony murder statute and (2) a child homicide statute that designates a separate homicide offense for the death of a child caused during an act of child abuse. Tables and appendix