Kennedy v. State , 277 Ga. 588 ( 2004 )

Fletcher, Chief Justice,

concurring.

This case, in which the defendant claimed that the 19-month-old victim was unconscious and thus incapable of feeling pain, points out an anomaly in Georgia’s cruelty to children statute. To obtain a conviction under OCGA § 16-5-70 (b), the State must prove that the defendant caused the child cruel or excessive physical or mental pain.² Thus, a person who intentionally abuses a child, but leaves no visible injuries, may be prosecuted under this statute. However, conduct that causes serious physical injury or even death is not, under the statute, “cruelty to children” unless the State can also prove the element of pain. Thus, a person who has intentionally caused serious injury to a child may avoid conviction under the cruelty to children statute if there is insufficient evidence that the child suffered pain. Because this anomaly may, in some circumstances, hinder the criminal prosecution of those who abuse children, I encourage the legislature to consider and address this issue.

2 Compare OCGA § 19-7-5 (b) (3) (A) (for mandatory reporting purposes, “child abuse” is nonaccidental “physical injury or death inflicted upon a child by a parent or caretaker”); Ala. Code § 26-15-3 (felony child abuse committed when certain persons “torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child”); Fla. Stat. § 827.03 (felony child abuse defined as “intentional infliction of physical or mental injury upon a child”); N.C. Gen. Stat. § 14-318.4 (felony child abuse committed when one “intentionally inflicts any serious physical injury upon or to the child”); Tenn. Code Ann. § 39-15-402 (aggravated child abuse committed when act of abuse “results in serious bodily injury to the child”).