In Other Words, Lawyer Wants the State to Get Tough on Parent Abuse

Later this week, Brooks Gresham will walk to the podium in a Monterey hotel and try to assure fellow lawyers that he’s not on the side of child abusers.

Gresham, a 34-year-old attorney from Laguna Niguel, will argue that he’s merely trying to inject some legal sense--not to mention common sense--into one of the hot-button issues of our times. Already, however, Gresham’s critics are contending that what he wants to do would weaken laws against abusers.

You might wonder why any lawyer would stand before members of the State Bar of California and advocate weakening the child-abuse statute--especially someone like Gresham, who practices business law and isn’t even a criminal attorney.

The short answer is, he isn’t.

“No one who shouldn’t get away is going to get away,” Gresham says. But, bothered that some people are taken to court for what he thinks are merely poor parenting decisions, Gresham wants to clarify the state law regarding child abuse.

“Making bad parental decisions is not a crime,” he says. “If it were, a case could probably be made against any of us.”

His proposed changes, which he is taking to a committee of the state bar at this week’s meeting in Monterey, would identify child abusers as those who “willingly or with criminal negligence” inflict pain or suffering on a child or place the child in a dangerous situation. The existing language doesn’t include the words “or with criminal negligence.”

As Gresham and even his critics agree, the courts over the years consistently have interpreted “willingly” to incorporate elements of criminal negligence.

The rub, however, seems to be Gresham’s proposal to define “willingly” and, for the first time, make that part of the law. He would define the word to include actions that are committed “purposefully and with specific intent to harm or endanger the health of the child.”

That definition, opponents say, would weaken the statute. Currently, prosecutors have relied on the word to mean “general intent to do the act which resulted in the harm, not specific intent,” according to a bar committee that recommends rejection of Gresham’s proposed changes.

The legalese may sound confounding, but it has everyday implications for many parents or caretakers of children.

If anything can be universal in a society like ours, it’s that we want child abusers prosecuted and convicted. When the charge is something as repellent as the beating of a child, society can easily agree that prosecution is warranted.

But what about less obvious actions, such as spankings or leaving children alone in parked cars or at home? In cases like that, people sometimes find themselves in court without having any idea they had committed a crime. And even when juries don’t convict them, the defendants sometimes incur prohibitive legal costs.

The danger of those cases is that prosecutors, under the guise of enforcing the law, substitute their parental philosophies for that of the parents.

Gresham argues that caretakers shouldn’t be that vulnerable to prosecution. His proposed word changes would identify abusive actions as those either intended to harm the child or that are grossly negligent.

I couldn’t reach representatives for those opposing Gresham’s changes, but he supplied me with their written positions. A state bar committee, in recommending rejection of Gresham’s changes, writes: “The resolution’s proposed definition of ‘willfully’ would require the much higher proof that the parent specifically intended to violate the statute.”

The committee offered an example of a parent who throws a child to the ground or deprives him of food and then claims those were disciplinary actions. Gresham’s proposal could result in that parent escaping punishment, the committee argues, adding, “Many abusive parents might escape punishment.”

Gresham says such a parent might wriggle out from under a charge on the definition of willful abuse but almost certainly would and should be charged on the language relating to “criminal negligence.”

An organization known as the Women Lawyers Assn. of Los Angeles has also entered an objection to Gresham’s proposal. Like the bar committee, it quarrels with Gresham’s desire to define “willfully.”

The association, however, agrees with Gresham that case law over the years has required that criminal negligence be present to prove willfulness. It says, however, that his proposal to write that into the law is unnecessary. Nor does it like his definition of willfulness.

I suspect Gresham is running into the bugaboo of child abuse. For those of us who think prosecutors or police occasionally overstep their bounds on pressing these kind of charges, Gresham’s modest changes seem eminently logical.

I can’t think of any real abuser who would find a loophole in Gresham’s language. Without it, I can imagine the continuing, even if rare, prosecutions of people who have no business being treated as criminals.

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by calling (714) 966-7821 or by writing to him at the Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or by e-mail to dana.parsons@latimes.com