The criminal law in Colorado and elsewhere attempts to protect children from abuse by punishing the guilty perpetrator. Sometimes the criminalization of negligent behavior, however, may result in an injustice. That thinking may be a defense that can be used on behalf of a mother who has been arrested on felony abuse charges arising out of the shooting of her 2-year-old son by his 3-year-old brother. Police report that the child found the phone in his mother’s purse and shot the gun to “play cops and robbers.”
The child was in critical condition at first, with a later upgrade to serious. The Colorado Springs Police Department charged the 30-year-old mother with felony child abuse resulting in serious bodily injury. She reportedly gave damaging and arguably irrelevant statements to the police without the assistance of counsel.
For example, it is reported that she told police that she smoked marijuana the night before the incident. The police reportedly found a meth pipe and powder they believe to be methamphetamine in the housing unit. She also admitted to using cocaine and meth in the past.
These are strong admissions rife with emotionalism when it comes to endangerment of children. In terms of relevance, however, it is arguable that the facts admitted had nothing to do with causing the injury to the child. Other facts may be more relevant, such as the location of the purse, whether is was closed and how often had the children, if ever, seen the gun.
In a case like this, defense counsel will try to argue that the mother had no criminal mens rea, which is usually necessary to convict someone of of crime, especially a serious felony. Mere negligence, it can be argued, does not rise to the level of criminality under Colorado law. In this kind of alleged crime, the degree of negligence and recklessness are usually the most salient factors relevant to the issue of criminal intent. Defense counsel will obtain all of the facts and evaluate them against the foregoing criminal principles to best fashion a defense on behalf of the mother.
Source: nydailynews.com, “Colorado mom arrested after 3-year-old son shoots little brother“, David Boroff, June 6, 2017