NY Penal Law § 120.12: Aggravated assault upon a person less than eleven years old

Because injuring a child is considered one of the most serious crimes a person can commit, New York has numerous laws established for the protection of children and to punish those who harm them. One of these statutes is aggravated assault upon a person less than eleven under New York Penal Code § 120.12. You will can be charged and convicted of the crime of aggravated assault upon a person less than eleven years old if:

• You are at least 18 years of age
• You assault a child who is younger than 11 years old
• The child sustains a physical injury as a result of the assault
• You have already been convicted of assaulting a child who is less than 11 years old within the 3 years prior to this offense

This crime is a class E felony offense.

For Example

A 21 year old man’s nephew accidentally damages the man’s video game system. The nephew is a 10 year old child. In a rage, the man slaps his nephew across the face, causing the child to suffer a black eye. If, within the prior 3 years, the uncle had been previously convicted of assaulting a child, he could now be facing prosecution for aggravated assault upon a person less than eleven years old.

Offenses that are Related

Reckless assault of a child: New York Penal Code § 120.02

Reckless assault of a child by a child day care provider: New York Penal Code § 120.01

Luring a child: New York Penal Code § 120.70

Possible Defenses

In order to support a charge of aggravated assault upon a person less than eleven, the child victim must have sustained a physical injury. In other words, the child victim must suffer some sort of impairment of physical condition or have experienced substantial pain as a result of the incident. Therefore, if there is no physical injury as defined by the statute, the prosecutor will have a difficult time securing a conviction against you under New York Penal Code § 120.12.

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Self-defense is a possible alternative defense. Under New York law, self-defense is defined as “justification.” If you had a reasonable fear that the child in question had the intention and was attempting to cause your physical harm, you may have ended up injuring the child in an effort to protect yourself.  If this is your justification, then the prosecutor may not have a case against you for the charge of aggravated assault upon a person less than eleven years old.

Legal Scenario: What Would You Do?

Scenario

A parent brings their 8-year-old child to the emergency room with a broken arm and multiple bruises. The hospital staff reports the injuries to authorities, and now the parent is facing charges under NY Penal Law § 120.12 for aggravated assault upon a person less than eleven years old.

What are the potential consequences of an aggravated assault charge under § 120.12, and is there any way to defend against these allegations?

Attorney's Answer

Aggravated assault upon a person less than eleven years old under NY Penal Law § 120.12 is a Class E felony, carrying up to four years in state prison. The prosecution must prove that you were eighteen or older and recklessly caused physical injury to a child under eleven by means of a deadly weapon or dangerous instrument — so the specific circumstances and evidence matter enormously. Possible defenses include challenging the cause of the injuries, demonstrating that the injuries were accidental, or questioning whether the statutory elements are actually met in your case. Given the severity of these charges and the involvement of child protective services, you need experienced legal counsel immediately to protect both your freedom and your parental rights.

This is general information only. Contact us for advice specific to your situation.

The Sentence

Due to the fact that aggravated assault upon a person less than eleven years old is a class E felony, if convicted, the judge could sentence you to up to 4 years in prison. You might also be ordered to pay a fine of as much as $5,000 and pay restitution to the victim. Additionally, the judge may also issue an order of protection that would prevent you from contacting the victim in the future.