HOUSE BILL No. 4877
August 16, 2017, Introduced by Rep. Garcia and referred to the Committee on Law and Justice.
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) "Controlled substance" means a controlled substance listed
in schedule 1 under section 7212 of the public health code, 1978 PA
368, MCL 333.7212, or a rule promulgated under that section, or a
controlled substance described in section 7214(a)(iv) of the public
health code, 1978 PA 368, MCL 333.7214.
(c) (b) "Cruel" means brutal, inhuman, sadistic, or that which
torments.
(d) "Fetus" means that term as defined in section 17015 of the
public health code, 1978 PA 368, MCL 333.17015.
(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) (e) "Physical harm" means any injury to a child's physical
condition.
(h) (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.
(i) (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 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 offense, 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.
(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 misdemeanor
punishable by imprisonment for not more than 1 year.
(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) This section applies to an individual who is pregnant and
addicted to controlled substances and whose use of controlled
substances harms the fetus or constitutes an unreasonable risk of
harm to the fetus as described in this section. However, as to that
fetus, that following are affirmative defenses:
(a) That the defendant is pregnant and addicted to controlled
substances but has enrolled in an addiction recovery program before
the birth of the child, remained in that program through pregnancy,
and successfully completed the addiction recovery program.
(b) That the defendant gives birth to a child who is born
addicted to or harmed by the defendant's use of controlled
substances during pregnancy but has enrolled in a court-ordered
addiction recovery program or is accepted into the drug treatment
court, and successfully completes the program, under sections 1060
to 1086 of the revised judicature act of 1961, 1961 PA 236, MCL
600.1060 to 600.1086.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.