Colorado has a criminal statute that singles out child abuse offenses. Under the statute, when child abuse results in death the offense can range from a class 3 felony charge up to first degree murder. The difference between the felony classes is determined by the degree of criminal intent of the actor.
Thus, where the person acts with criminal negligence and the child dies, the offense is a class 3 felony. If the person acts knowingly or recklessly and the child dies, the offense falls in the more serious class 2 felony category, and so on. Recently, authorities arrested a babysitter in Pueblo who allegedly left an 11-month-old baby unattended in a bathtub, and came back to find her floating face-down in the water.
The girl died of drowning, according to the autopsy. The police arrested the babysitter for child abuse resulting in death. It is currently unclear what degree of felony the authorities filed against the accused. However, the stated allegations indicate an intent level that appears to be somewhere between negligence and recklessness.
In such situations, the prosecution may choose to arrest on the higher degree felony, while leaving the option open for the defendant to agree to plead guilty to a lesser class of felony. The accused reportedly told police that she is a family friend who was babysitting. She allegedly stated that she put the baby and her 3-year-old sister in a lukewarm bath only six inches deep.
She reportedly went into another room to vacuum for six to seven minutes, and found the one child dead when she came back in. The actions appear to demonstrate negligence, but whether that rises to a criminal negligence felony charge under the Colorado statute may be an issue for a judge or jury to decide. Depending on the detailed surrounding circumstances, a seasoned defense counsel may convince a jury that, although this was an avoidable accident, it nonetheless was not one that contained the kind of criminal intent necessary to convict a person of a criminal offense.
Source: U.S. News & World Report, “Baby-Sitter Arrested After Unattended Child Drowns“, May 25, 2017