STATE OF FLORIDA

IN THE FOURTH DISTRICT COURT OF APPEAL

Case No. 4D01-1306

__________________________

STATE OF FLORIDA,
Appellee

v.

LIONEL TATE,
Appellant
__________________________

Review of a Decision of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward
County,
Case Number 99-14401CF10A, Honorable Joel T. Lazarus Presiding
___________________________

Brief of Center for Florida’s Children,

Center on Children and the Law,
Juvenile Law Center,
Maryland Juvenile Justice Coalition,
Public Justice Center
Southern Center for Human Rights,
Southern Juvenile Defender Center,
Law Professors Michael Dale and Abbe Smith,
and Robert Weaver as
AMICI CURIAE
In Support of Lionel Tate, Appellant
___________________________

1
BARBARA BENNETT WOODHOUSE
CHRISTOPHER SLOBOGIN
CLAUDIA WRIGHT*
SHERRIE RUSSELL-BROWN
University of Florida
Fredric G. Levin Coll. of Law
Center on Children & the Law
P.O. Box 117625
Gainsville, FL 32611-7625
(352) 392-2211 (phone)
* Local Counsel
(Fla. Bar # 251569)

STEVEN DRIZIN
Northwestern University
School of Law
Bluhm Legal Clinic
Children & Family Justice Ctr.
357 East Chicago Avenue
Chicago, IL 60611-3069
(312) 503-8576 (phone)

ATTORNEYS FOR AMICI CURIAE

2
TABLE OF CONTENTS
Page(s)

TABLE OF CITATIONS .............................................................................................................-iv-

STATEMENT OF INTEREST OF AMICI CURIAE ...................................................................... 1

STATEMENT OF THE CASE....................................................................................................... 2

SUMMARY OF ARGUMENT....................................................................................................... 2

ARGUMENT .................................................................................................................................. 4

I. THE TRIAL COURT ERRED IN APPLYING THE FELONY-

MURDER RULE TO A TWELVE-YEAR-OLD BOY WHO IS
PRESUMED BY LAW TO LACK CAPACITY TO FORM THE
REQUISITE CRIMINAL INTENT........................................................................ 4

II. EVEN IF A CHILD CAN BE GUILTY OF FELONY-MURDER,

THE COURT ERRED IN USING AGGRAVATED CHILD ABUSE
AS THE PREDICATE OFFENSE........................................................................ 11

A. A juvenile cannot be convicted of felony-

murder when the predicate felony is one
over which the criminal court lacks
jurisdiction................................................................................................. 11

B. The felony-murder rule does not apply in

this case because the underlying felony
merges with the homicide.......................................................................... 14

III. EVEN IF THIS COURT FINDS THAT THE FELONY-MURDER

DOCTRINE APPLIES, THE UNDERLYING FELONY OF
AGGRAVATED CHILD ABUSE WAS NEVER INTENDED TO BE
USED AGAINST CHILDREN ............................................................................. 20

A. The plain meaning of “child abuse” does

not extend to acts by a “person” who is a
child and injures another child in the
course of play ............................................................................................ 20

B. The legislature did not intend § 827.03(2)

to be used against children who hurt other
children...................................................................................................... 25

3
 C. The historical development of laws
criminalizing child abuse confirms that
they were not intended to punish children................................................. 35

D. A law making any person who harms a person

under eighteen, regardless of the context
or the actor’s age, guilty of child abuse
would be unconstitutionally broad and
void for vagueness ..................................................................................... 41

IV. EVEN IF THE AGGRAVATED CHILD ABUSE STATUTE

APPLIES TO LIONEL TATE, HIS FELONY-MURDER
CONVICTION MUST BE REVERSED .............................................................. 44

A. The trial court erred in failing to

instruct the jury to presume that Lionel
lacked capacity to form the mens rea
necessary to commit aggravated battery.................................................... 44

B. The state failed to carry its burden of

proving the specific intent to commit
aggravated child abuse .............................................................................. 47

CONCLUSION ............................................................................................................................. 49

CERTIFICATE OF SERVICE...................................................................................................... 51

CERTIFICATE OF COMPLIANCE ............................................................................................ 51

APPENDICES

APPENDIX A ................................................................................................................A-1

APPENDIX B ................................................................................................................. B-1

4
 TABLE OF CITATIONS

Page(s)

Cases

A.J. v. State, 721 So. 2d 761 (Fla. 2d DCA 1998)......................................................................... 23

Arnold v. Stat e, 755 So. 2d 796 (Fla. 2d DCA 2000) .................................................................... 16

Bowen v. State, 791 So. 2d 44 (Fla. 2d DCA 2001)...................................................................... 16

Bradley v. State, 79 Fla. 651, 84 So. 677 (1920)........................................................................... 34

Brown v. State, 629 So. 2d 841 (Fla. 1994)................................................................................... 42

City of St. Petersburg v. Carter et al., 39 So. 2d 804

(Fla. 1949) ......................................................................................................................... 22

City of Tampa v. Thatcher Glass Corp., 445 So. 2d 578

(Fla. 1984) ......................................................................................................................... 22

Clay v. State, 196 So. 462 (Fla. 1940) ........................................................................................... 10

Consumer Product Safety Comm’n v. GTE Sylvania, Inc.,

447 U.S. 102 (1980) .................................................................................................... 28, 29

Ellis v. State, 622 So. 2d 991 (Fla. 1993)...................................................................................... 22

Eversley v. State, 748 So. 2d 963 (Fla. 1999)................................................................................ 33

Green v. State, 604 So. 2d 471 (Fla. 1992) ................................................................................... 21

Hinn v. Beary, 701 So. 2d 579 (Fla. 5th DCA 1997) .................................................................... 22

In re G.T., 758 A.2d 301 (Vt. 2000) .................................................................................. 25, 26, 43

In re Zeiser, 133 Ohio App. 3d 338 (Ohio Ct. App. 1999) ........................................................... 34

Jakubczak v. State, 425 So. 2d 187 (Fla. 3d DCA 1983) .............................................................. 48

Jones v. State, 542 P.2d 1316 (Okla. Crim. App. 1975) ............................................................... 40

5
K.B.S. v. State, 725 So. 2d 448 (Fla. 2d DCA 1999) ............................................................... 23, 41

Kama v. State, 507 So. 2d 154 (Fla. 1st DCA 1987)..................................................................... 38

King v. State, 426 So. 2d 12 (Fla. 1982)........................................................................................ 13

Kobel v. State, 745 So. 2d 979 (Fla. 4th DCA 1999) .............................................................. 24, 25

Koenig v. State, 757 So. 2d 595 (Fla. 5th DCA 2000) ............................................................ 17, 18

Kolender v. Lawson, 461 U.S. 352 (1983) .................................................................................... 41

Mapps v. State, 520 So. 2d 92 (Fla. 4th DCA 1988) ............................................................... 18, 19

McCray v. State, 424 So. 2d 916 (Fla. 4th DCA 1982)................................................................. 10

McKibben v. Mallory, 293 So. 2d 48 (Fla. 1974) .......................................................................... 22

Moakley v. State, 547 So. 2d 1246 (Fla. 5th DCA 1989).............................................................. 48

Mills v. State, 476 So. 2d 172 (Fla. 1985) ..................................................................................... 20

Montana v. Egelhoff, 518 U.S. 37 (1996)................................................................................ 15, 16

Newberger v. State, 641 So. 2d 419 (Fla. 2d DCA 1994) ............................................................. 21

Nicholson v. State, 600 So. 2d 1101 (Fla. 1992) ........................................................................... 48

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) .......................................................... 42

People v. Cruz, 225 A.D.2d 790, 640 N.Y.S.2d 159

(N.Y. App. Div. 1996) ....................................................................................................... 12

People v. Hansen, 885 P.2d 1022 (Cal. 1994)............................................................................... 14

People v. Huther, 77 N.E. 6 (N.Y. 1906) ...................................................................................... 15

People v. Ireland, 450 P.2d 580 (Cal. 1969)................................................................................. 15

People v. Moran, 246 N.Y. 100, 158 N.E. 35 (N.Y. 1927) ........................................................... 14

People v. Morgan, 197 Ill. 2d 404, 758 N.E.2d 813

(Ill. 2001) ........................................................................................................................... 14

6
People v. Porter, 54 N.Y.S.2d 3 (N.Y. Co. Ct. 1945)................................................................... 12

People v. Rooks, 243 N.Y.S.2d 301 (N.Y. Sup. Ct. 1963)............................................................ 12

People v. Roper, 259 N.Y. 170 (N.Y. 1932) ................................................................................. 11

People v. Smith, 678 P.2d 886 (Cal. 1984).................................................................................... 15

Plante v. Dep’t of Bus. & Prof’l Regulation,

685 So. 2d 886 (Fla. 4th DCA 1996)................................................................................. 21

Pugh v. State, 624 So. 2d 277 (Fla. 2d DCA 1993) ...................................................................... 34

R.D.C. v. State, 332 So. 2d 134 (Fla. 3d DCA 1976) .................................................................... 10

Raford v. State, 792 So. 2d 476 (Fla. 4th DCA 2001)................................................................... 38

Reed v. Bowen, 503 So. 2d 1265 (Fla. 2d DCA 1986).................................................................. 10

Ritchie v. State, 670 So. 2d 924 (Fla. 1996).................................................................................. 13

Robles v. State, 188 So. 2d 789 (Fla. 1966) .................................................................................. 19

State v. Bradford, 787 So. 2d 811 (Fla. 2001)............................................................................... 21

State v. Branch, 415 P.2d 766 (Or. 1966) ..................................................................................... 15

State v. Camp, 596 So. 2d 1055 (Fla. 1992) .................................................................................. 24

State v. Campos, 921 P.2d 1266 (N.M. 1996)............................................................................... 14

State v. Clark, 204 Kan. 38, 460 P.2d 586 (Kan. 1969)................................................................ 14

State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997) ................................................................... 21

State v. DeGarmo, 454 So. 2d 600 (Fla. 5th DCA 1984) .............................................................. 13

State v. Fuchs, 769 So. 2d 1006 (Fla. 2000)................................................................ 29, 30, 42, 43

State v. Gribble, 655 S.W. 2d 196 (Tenn. Crim.

App. 1983) ................................................................................................................... 12, 13

State v. Hagan, 387 So. 2d 943 (Fla. 1980) .................................................................................. 21

7
State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000)................................................................ 25

State v. Lucas, 759 P.2d 90 (Kan. 1988) ....................................................................................... 15

State v. Lujan, 712 P.2d 13 (N.M. Ct. App. 1985) ........................................................................ 40

State v. McDeavitt, 776 So. 2d 1086 (Fla. 4th DCA 2001) ........................................................... 42

State v. McDonald, 785 So. 2d 640 (Fla. 2d DCA 2001) ........................................................ 35, 38

State v. Smith, 547 So. 2d 613 (Fla. 1989) .................................................................................... 28

State v. Wynne, 794 So. 2d 642 (Fla. 2d DCA 2001).................................................................... 32

Stephens v. State, 787 So. 2d 747 (Fla. 2001) ......................................................................... 17, 18

Swindell v. Hellkamp, 242 So. 2d 708 (Fla. 1970)........................................................................ 10

Wallace v. State, 724 So. 2d 1176 (Fla. 1998) .............................................................................. 24

Warren v. State, 572 2o. 2d 1376 (Fla. 1991) ............................................................................... 42

WFTV, Inc. v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996) ........................................................ 21

Young v. Progressive Southeastern Ins. Co.,

753 So. 2d 80 (Fla. 2000) .................................................................................................. 25

Federal Laws

Child Abuse Protection and Treatment Act of 1974,

Pub. L. 93-247, 40 U.S.C. 5106(g)(2)......................................................................... 36, 39

Florida Laws, Rules & Statutes

Ch. 39, Fla. Stat. (1997) ................................................................................................................ 30

Ch. 39, Fla. Stat. (2001) ............................................................................ 30, 31, 37, 38, 42, 43, 44

Ch. 84-16, § 1, Laws of Fla. (1984) .............................................................................................. 19

Ch. 96-322, §§ 8, 10, Laws of Fla. ............................................................................................... 38

Ch. 98-403, § 20, Laws of Fla. ..................................................................................................... 38

8
Ch. 827, Fla. Stat. (2001) .............................................................................................................. 29

Ch. 984, Fla. Stat. (1997) .............................................................................................................. 30

Ch. 985, Fla. Stat. (1997) .............................................................................................................. 30

Ch. 985, Fla. Stat. (2001) .............................................................................................................. 28

Fla. Std. Jury Instr. (Crim.) 2.02(a) (June, 2000) .................................................................... 16, 17

§ 39.01(7)(b), Fla. Stat. (2001) ...................................................................................................... 27

§ 39.01(30)(a)(3), Fla. Stat. (2001) ......................................................................................... 31, 32

§ 39.201, Fla. Stat. (2001) ............................................................................................................. 30

§ 39.201(1), Fla. Stat. (2001) ........................................................................................................ 27

§ 39.205(2), Fla. Stat. (2001) ........................................................................................................ 26

§ 39.301(2), Fla. Stat. (2001) ........................................................................................................ 26

§ 39.307, Fla. Stat. (2001) ............................................................................................................. 27

§ 383.402, Fla. Stat. (2001) ..................................................................................................... 29, 37

§ 383.402(1), Fla. Stat. (2001) ...................................................................................................... 29

§ 395.1023, Fla. Stat. (2001) ......................................................................................................... 37

§ 450.151, Fla. Stat. (2001) ........................................................................................................... 37

§ 775.021(1), Fla. Stat. (2001) ...................................................................................................... 24

§ 782.04(1)(a)(2)(h), Fla. Stat. (2001)..................................................................................... 14, 44

§ 782.04(3)(h), Fla. Stat. (2001) .................................................................................................... 14

§ 782.07(1), Fla. Stat. (2001) ........................................................................................................ 16

§ 782.07(3), Fla. Stat. (2001) ........................................................................................................ 18

§ 784.045(1)(a)(1), Fla. Stat. (2001) ............................................................................................. 17

§ 794.011(2)(b), Fla. Stat. (2001) .................................................................................................. 27

9
§ 827, Fla. Stat. (2001) ............................................................................................................ 29, 31

§ 827.03, Fla. Stat. (2001) .....................................................................20-22, 26, 29-33, 38, 41-44

§ 827.03(1), Fla. Stat. (2001) ........................................................................................................ 20

§ 827.03(1)(b), Fla. Stat. (2001) .................................................................................................... 17

§ 827.03(2), Fla. Stat. (2001) ................................................................................ 20, 21, 25, 33, 44

§ 827.03(2)(a), Fla. Stat. (2001).................................................................................................... 17

§ 827.03(2)(b), Fla. Stat. (2001) .................................................................................................... 23

§ 827.03(2)(c), Fla. Stat. (2001).............................................................................................. 17, 48

§ 827.03(3)(a)(1), Fla. Stat. (2001) ......................................................................................... 31, 33

§ 827.04, Fla. Stat. (2001) ............................................................................................................. 30

§ 827.04(1)(a), Fla. Stat. (2001).............................................................................................. 30, 42

§ 985.225, Fla. Stat. (2001) ........................................................................................................... 13

§ 985.226, Fla. Stat. (2001) ........................................................................................................... 13

§ 985.227, Fla. Stat. (2001) ........................................................................................................... 13

Other States’ Statutes

720 Ill. Comp. Stat. Ann. § 5/12-4.3(a) (2001) ............................................................................. 40

Ala. Code § 26-15-2 (2001)........................................................................................................... 40

Alaska Stat. § 11.41.220(a)(1)(C) (Michie 2001) ......................................................................... 40

Ariz. Rev. Stat. Ann. § 13-1204(A)(4) (West 2002)..................................................................... 40

Conn. Gen. Stat. Ann. § 53-20 (West 2002) ................................................................................. 40

Del. Code. Ann. tit. 11, § 1102 (2001).......................................................................................... 40

Ind. Code §§ 35-42-2-1(a)(2)(B) & (a)(4) (2001) ......................................................................... 40

Iowa Code Ann. § 726.6 (West 2001) ........................................................................................... 40

10
La. Rev. Stat. Ann. § 14:93(A) (West 2002) ................................................................................. 40

Md. Ann. Code art. 27, § 35C (1998)............................................................................................ 40

Me. Rev. Stat. Ann. tit. 17-A, § 554 (West 2002) ......................................................................... 40

Mich. Comp. Laws Ann. § 750.136b(1)(d) (West 2002) .............................................................. 40

Minn. Stat. Ann. §§ 609.255 & 609.377 (West 2001) .................................................................. 40

N.C. Gen. Stat. Ann. §§ 14-318.2 & 14-318.4 (West 2002) ......................................................... 40

N.D. Cent. Code § 14-09-22 (2001) .............................................................................................. 40

N.Y. Penal Law §§ 120.05(8-9) & 120.12 (2001)......................................................................... 40

Okla. Stat. Ann. tit. 10, § 7102 (West 2001)................................................................................. 40

R.I. Gen. Laws § 11-9-5.3 (2001) ................................................................................................. 40

Va. Code Ann. § 18.2-371.1 (Michie 2001) .................................................................................. 40

W. Va. Code § 61-8D-3 (2001) ..................................................................................................... 40

Wash. Rev. Code Ann. § 9A.36.120(1) (West 2002) .................................................................... 40

Others

Beyer, Marty, Immaturity, Culpability & Competency in

Juveniles: A Study of 17 Cases, Criminal Justice,

Summer 2000, at 27....................................................................................................... 9, 47

Bonnie, Richard, et al., Criminal Law (1997) ............................................................................... 16

Cantwell, Hendricka B., The Neglect of Child Neglect, in

The Battered Child 347 (Mary Edna Helfer, Ruth S.

Kempe, & Richard D. Krugman eds., 5th ed. 1997) ................................................... 32, 33

Child Abuse and Neglect, State Statutes Elements:

Crimes--Number 34, Physical Abuse (current through

11
 Dec. 31, 1999), at http://www.calib.com/nccanch/

pubs/stats00/physical.pdf................................................................................................... 39

Dressler, Joshua, Understanding Criminal Law

(2d ed. 1995).................................................................................................................. 7, 15

English, Diana J., The Extent and Consequences of Child

Maltreatment, The Future of Children: Protecting

Children from Abuse and Neglect, Spring 1998, at 39 ..................................................... 37

Florida Dep’t of Children & Families, Child Abuse, at

http://www5.myflorida.com/cf_web/myflorida2/

healthhuman/childabuse/definitions.html.................................................................... 27, 28

Florida H.R. Committee on Criminal Justice, Bill

Analysis & Economic Impact Statement: Bill #

CS/HB 189: Child, Neglect, and Exploitation,

Apr. 2, 1996, at 12 ....................................................................................................... 30, 31

Handbook of Child and Adolescent Psychiatry, Vol. III, 15,

37 (Lois T. Flaherty & Richard M. Sarles eds., 1997) ........................................................ 9

Kadish, Sanford H., Legal Norm and Discretion in the

Police and Sentencing Processes, 75 Harv. L. Rev.

904 (1962) ......................................................................................................................... 43

Keough, Caroline J., “I wish there was another

alternative. It’s horrible.” Jurors Say They Felt

Decision Was Imposed on Them by Unjust Law, Miami

Herald, Jan. 26, 2001, at 8A.......................................................................................... 4, 46

12
LaFave, Wayne, Criminal Law

(3d ed. 2000).................................................................................................. 6, 7, 14, 15, 46

Nowak, John E. & Ronald D. Rotunda, Constitutional Law

(6th ed. 2000)............................................................................................................... 41, 43

Roberts, Milton, Validity and Construction of Penal

Statute Prohibiting Child Abuse, 1 A.L.R. 4th 38

(West 2002)(1980)....................................................................................................... 23, 41

Shepherd, Robert, Juvenile Justice: Rebirth of the

Infancy Defense, Criminal Justice, Summer 1997, at 45..................................................... 9

ten Bensel, Robert W., Marguerite M. Rheinberger, &

Samuel X. Radbill, Children in a World of Violence,

in The Battered Child 3 (Mary Edna Helfer, Ruth S.

Kempe, & Richard D. Krugman eds., 5th ed. 1997) ................................................... 35, 36

Tomkovicz, James J., The Endurance of the Felony-Murder

Rule: A Study of the Forces That Shape Our Criminal

Law, 51 Wash. & Lee L. Rev. 1429 (1994) ........................................................................ 5

Walkover, Andrew, The Infancy Defense in the New

Juvenile Court, 31 UCLA L. Rev. 503 (1984).................................................................7-9

Weber, Michael H., The Assessment of Child Abuse: A

Primary Function of Child Protective Services, in

The Battered Child 120 (Mary Edna Helfer, Ruth S.

Kempe, & Richard D. Krugman eds., 5th ed. 1997) ................................................... 37, 38

Webster’s New World Dictionary of the American Language

13
 (David B. Guralnik ed., 2nd college ed. 1982).................................................................. 21

Weinberger, Daniel R., A Brain Too Young for Good

Judgment, N.Y. Times, Mar. 10, 2001 .............................................................................. 47

14
 STATEMENT OF INTEREST OF AMICI CURIAE1

Amici are organizations and individuals from Florida and other states who work with and

advocate for children and youth. They are united in their view that the use of the felony-murder

doctrine and the laws on aggravated child abuse to prosecute twelve-year-old Lionel Tate and to

sentence him to life without parole, was unjust, unlawful, and bad public policy. Amici possess

expertise in the areas of child protection, child and adolescent development, criminal law, juvenile

justice, youth policy and constitutional law. Drawing on this comprehensive knowledge, they seek

to provide information to the Court not only on the flaws in the lower court’s analysis but also

regarding the wider context of the systems addressing child abuse and neglect and juvenile crime

and the potential damage to the integrity of those systems if the trial court’s decision is allowed to

stand.

1
Amici file this brief with the consent of all parties. Letters of consent are attached in
Appendix A. A brief description of each of the organizations and individuals listed on the
cover appears in the Appendix B. Amici also acknowledge the valuable contributions of
several individuals: law students David Benjamin, Ryan Cobb, Bob Jacobs, Thomas Kollar,
Anne Raduns, and Lori B. Schnitzer, who assisted in research and drafting; Cindy
Zimmerman for her logistic support; and Liz Ryan and Marc Schindler of Building Blocks
for Youth, who alerted groups and individuals, nationwide, about this appeal.

15
 STATEMENT OF THE CASE

The facts of this case have been set out succinctly in Appellant’s Statement of the Case,

which is adopted by amici.

SUMMARY OF ARGUMENT

The trial court erred in applying the felony-murder rule to a twelve-year-old boy who is

presumed by law to lack capacity to form the requisite criminal intent. An examination of the

history of the felony-murder rule, the tension between the felony-murder rule and the common law

infancy defense, and the policies underlying each rule demonstrates that the felony-murder rule was

never intended to be applied to children of Lionel's age.

Even if a child can commit felony-murder, the court erred in using aggravated child abuse as

the predicate offense. The law is clear that Lionel could not have been tried as an adult for

aggravated child abuse had Tiffany Eunick survived. The state should not be able to do indirectly

what it cannot do directly. It was also error to apply the felony-murder doctrine in this case, because

the felony-murder rule only applies if the underlying felony is independent of the conduct which

kills, or involves separate conduct from the acts of personal violence which constitute a necessary

part of the homicide itself. In this case, aggravated child abuse merges with the homicide.

Even if this court finds that the felony-murder doctrine applies, the underlying felony of

aggravated child abuse was never intended to be used against children. The history of child

protection laws in Florida and throughout the nation, as well as commonly accepted rules of

statutory construction, make clear that the legislature, when it enacted laws prohibiting and

criminalizing child abuse and child neglect, intended to create a shield for the protection of children

and not a weapon for prosecution of children. In addition, if the criminal child abuse statute used in

16
this case were construed to cover any person of any age who injures a person under the age of

eighteen, regardless of the context, the statute would be void for vagueness.

Even if the aggravated child abuse statute applies to Lionel, his felony-murder conviction

must be reversed because the trial court erred in failing to instruct the jury to presume that he lacked

capacity to form the mens rea to commit aggravated child abuse. Current social science and

scientific research about adolescent development support the argument that the state failed to carry

its burden of proving the specific intent to commit aggravated child abuse.

17
 ARGUMENT

I. THE TRIAL COURT ERRED IN APPLYING THE FELONY-MURDER RULE TO

A TWELVE-YEAR-OLD BOY WHO IS PRESUMED BY LAW TO LACK
CAPACITY TO FORM THE REQUISITE CRIMINAL INTENT

An examination of the history of the felony-murder rule, the tension between the felony-

murder rule and the common law infancy defense, and the policies underlying each rule

demonstrates that the felony-murder rule was never intended to be applied to children under the age

of fourteen.2 The common law doctrine of incapacity is more firmly rooted in history than the

felony-murder rule and predates the felony-murder rule by centuries. Moreover, criminal capacity

is a necessary prerequisite to criminal mens rea. Before one can apply the felony-murder rule,

which dispenses with the mens rea requirement of murder, courts must first find that the child-

defendant is capable of forming criminal intent. When these two common law creations clash, as

they do in Lionel Tate’s case, the infancy defense should supercede the felony-murder rule.

The felony-murder rule, which dates back to Elizabethan times in England, imposes liability

2
Many of the jurors in Lionel Tate’s case shared this perception. In the aftermath of
the Tate verdict, several jurors revealed that the verdict they rendered left them feeling that
justice had not been served. Their opinions underscore the evil of applying doctrines of
liability designed for adults to children. “I wish there was another alternative. It’s horrible,”
remarked Kathleen Pow-Sang, a juror in the Tate case who wept and prayed with others in
the jury room as they struggled for a way out of a decision they felt was being forced on
them by an unjust law. She told reporters that she and other jurors "were all annoyed" that
the case was not brought in juvenile court. Caroline J. Keough, “I wish there was another
alternative. It’s horrible.” Jurors Say They Felt Decision Was Imposed on Them by Unjust
Law, Miami Herald, Jan. 26, 2001, at 8A. Another juror, Steve Danker, told reporters that
he desperately wanted to factor Lionel’s age into the verdict but had sworn not to do so
during jury selection. During voir dire, prospective jurors who had said they could not
render a verdict without considering Lionel’s age had been dismissed. Id. Danker stated:
“I don’t think anybody there thought that Lionel intended to kill her, but the state didn’t have
to prove that. I think it was too easy for them.” Id.

18
for murder when death results from actions taken during the commission or attempted commission

of a felony. This ancient rule allows prosecutors to charge a defendant with murder, even if the

defendant did not intend to kill the victim. Prosecutors must only prove that the defendant intended

to commit the underlying felony, and are not required to offer any separate proof of intent with

regard to the death.

The felony-murder rule has been traced to a variety of sources, although its exact origins are

unclear. See James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the

Forces That Shape Our Criminal Law, 51 Wash. & Lee L. Rev. 1429, 1442 (1994). Some say that

it arose in the early 1600s, while others believe that the doctrine was created in 1644 by Lord Coke.

Id. Other commentators believe that the rule that a killing during a felony would automatically

become a murder was promulgated by Sir Michael Foster in 1762. Id. In any case, the felony-

murder rule can be traced back to the 17th century.

The felony-murder rule is highly problematic when applied to children under the age of

fourteen because under common law such children are presumed to be incapable of forming

criminal intent. This common law “infancy defense” dates back to the 10th century, when it was

established by statute that no one under the age of fifteen could be subjected to capital punishment

unless he attempted to escape or refused to give himself up. See Wayne LaFave, Criminal Law 424

(3d ed. 2000). By the beginning of the 14th century, it was established that children under the age

of seven were without criminal capacity. Id. at 425. By 1338, children over the age of seven were

presumed to lack the capacity to commit a crime, which could be rebutted by proof of malice. Id.

By the 17th century, it was firmly established that the presumption of incapacity operated until a

child was fourteen years old. Id. Before the state could gain a conviction against a child, it had the

19
burden of overcoming the presumption of incapacity.3

A closer look at the justifications for the doctrine of incapacity and the felony-murder rule

confirms that the felony-murder rule was not intended to be applied to children under the age of

fourteen. The early common law infancy defense was based upon an unwillingness to punish those

thought to be incapable of forming criminal intent and not of an age where the threat of punishment

would serve as a deterrent. Id. The felony-murder rule, in contrast, was justified as a deterrent for

negligent and accidental killings during the commission of a felony. See Joshua Dressler,

Understanding Criminal Law 480 (2d ed. 1995). In light of the presumption that children under

fourteen are incapable of forming criminal intent, the deterrence rationale makes no sense if applied

to children. Applying the felony-murder rule to children under the age of fourteen also produces

unfair and nonsensical outcomes. By relieving prosecutors of the burden of rebutting the

presumption of incapacity through proof of premeditation or malice, courts essentially would be

permitting murder convictions of child-defendants who are presumed incapable of forming criminal

intent. It is inconsistent with common law to make it easier for prosecutors to obtain a murder

conviction in the case of youthful defendants when the objective of the presumption of incapacity is

just the opposite--to make it harder to prove intent when the defendant is a child.

Finally, the doctrine of incapacity must surely trump the felony-murder rule since "capacity"

is a necessary foundation for the formation of "intent" in the culpability, or mens rea, context of a

felony.

3
According to LaFave, the prosecutor's burden was a heavy one, sometimes stated to be
“beyond a reasonable doubt” and sometimes “clear and convincing evidence.” Id. at 425
n.14.

20
 Put simply, mens rea is the state of mind required to commit a blameworthy act. The

concept of legal responsibility, or the capacity to have a culpable state of mind,

overlaps, in part, with mens rea. Unless the accused has the capacity to be culpable,

it is impossible for him to maintain the specific mental state, or mens rea, required

for commission of a criminal offense. Legal responsibility may be viewed as a

fundamental pre-requisite to the existence of mens rea. . . . The mens rea inquiry

focuses on whether the accused, when assumed capable of complying with the law’s

command, possessed the specific state of mind required to consider an act

blameworthy. . . . Legal responsibility focuses instead on whether the accused’s

deficiencies of judgment distinguish him from others in society such that we do not

expect him to comply with the law. . . . Legal responsibility and mens rea also differ

in terms of the time frame in which the court analyzes the problem. The mens rea

inquiry focuses on the time period in which the harmful act is committed. Proof of

the capacity to be legally responsible for one’s acts focuses on the life experiences of

the individual. By widening the time frame, legal responsibility differences allow

the court to explore a broader range of behavior that might exculpate the accused.

Andrew Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L. Rev. 503, 537

(1984). In other words, capacity is a prerequisite of mens rea. In order for prosecutors to prove

mens rea, they must first prove that the defendant was capable of forming criminal intent. But,

especially when dealing with a child, this inquiry is much broader in scope than a traditional mens

rea analysis and necessarily involves consideration of developmental factors which bear on a child’s

ability to form intent--factors which are incompatible with the felony-murder rule.

21
 Courts applying the infancy defense typically focus on the child’s capacity to understand the

nature and consequences of his acts and ability to distinguish right from wrong. Id. at 512. Given

current understandings about the moral development of children and psychosocial literature on the

competence and decision making of teens, courts exploring the infancy defense must also inquire

into the degree of impulse control that the youth is capable of exercising. See, e.g., id. at 559-60;

Robert Shepherd, Juvenile Justice: Rebirth of the Infancy Defense, Criminal Justice, Summer 1997,

at 45. Recent research showing that adolescent brains are less developed than adult brains in the

very areas of the brain that govern impulse control and judgment–-the pre-frontal lobes-–provides

added weight to the need for courts to factor impulse control into the infancy analysis. See, e.g., III

Handbook of Child and Adolescent Psychiatry 15, 37 (Lois T. Flaherty & Richard M. Sarles eds.,

1997).

From a developmental perspective, it is grossly unfair to apply the felony-murder rule to

pre-teens like Lionel. Such children lack the foresight and judgment of fully competent adults, are

prone to make decisions without careful deliberation, and do not fully understand the consequences

of their actions. Studies in both neuroscience and psychology demonstrate that children do not have

the same capacity to control their behavior or make rational decisions as adults. See, id.; Marty

Beyer, Immaturity, Culpability & Competency in Juveniles: A Study of 17 Cases, Criminal Justice,

Summer 2000, at 27.

It is well established in Florida that the presumption of incapacity applies to children under

the age of fourteen. In Clay v. State, the Supreme Court acknowledged that "the common law raises

a presumption of incapacity of an infant between the ages of 7 and 14," and that "a child under the

22
age of 7 years old is conclusively presumed to be incapable of committing a crime." 196 So. 462,

463 (Fla. 1940). Since Clay, Florida courts have continued to acknowledge the common law

doctrine of incapacity. See Reed v. Bowen, 503 So. 2d 1265 (Fla. 2d DCA 1986); R.D.C. v. State,

332 So. 2d 134 (Fla. 3d DCA 1976); Swindell v. Hellkamp, 242 So. 2d 708 (Fla. 1970); but cf.

McCray v. State, 424 So. 2d 916 (Fla. 4th DCA 1982)(refusing to apply the common law

presumption of incapacity in murder case involving a child just two months shy of fourteen).4 As

long as the infancy defense remains good law in Florida, the felony-murder rule should not be

applied to child-defendants.

II. EVEN IF A CHILD CAN BE GUILTY OF FELONY-MURDER, THE COURT

ERRED IN USING AGGRAVATED CHILD ABUSE AS THE PREDICATE
OFFENSE

A. A juvenile cannot be convicted of felony-murder when the predicate felony is one

over which the criminal court lacks jurisdiction

The state should not be able to do indirectly what it cannot do directly. Since Lionel was too

4
This court should follow the binding Florida Supreme Court precedent and reject
McCray. In McCray, the Fourth District held that the Florida legislature intended to
supplant the common law infancy defense when it passed a comprehensive scheme for
waiving juvenile offenders from juvenile court to adult court. 424 So. 2d at 917. But the
decision to waive a juvenile defendant does not necessarily involve any consideration of
the defendant's capacity. This is especially so in Lionel's case as the decision to refer him
to the grand jury was made by a Florida prosecutor based solely on the prosecutor's
opinion that he had committed murder. There is no evidence in the record to suggest that
Lionel's capacity to form criminal intent mattered at all to the prosecutors. Moreover,
transfer decisions do not involve issues of criminal responsibility; they are concerned not
with guilt or innocence but with which court will have jurisdiction over where a defendant
will be tried. In approving a direct-file scheme for children charged with murder, the
legislature could not have possibly intended to alter common law presumptions which go
directly to criminal responsibility. These presumptions were designed specifically for
children being tried in criminal court and predate the creation of juvenile courts by
centuries. They should apply even more strongly in the criminal courts where the
consequences to the child of a finding of capacity are far more severe than in juvenile
courts.

23
young to be tried as an adult for aggravated child abuse, the state should not be permitted to convict

him in criminal court for felony-murder with aggravated child abuse as the predicate felony. This

appears to be a matter of first impression in Florida. However, there is ample precedent in New

York State for this proposition.

In People v. Roper, 259 N.Y. 170, 174 (N.Y. 1932), the New York Court of Appeals

overturned a juvenile defendant’s conviction for felony-murder on the ground that the predicate

felony (robbery) could not have been tried in adult court. The court noted that murder in the first

degree requires "felonious intent," which in felony-murder cases comes from the underlying felony.

Since Roper could not be charged with the felony of robbery, he lacked the implied intent

necessary for felony murder. 259 N.Y. at 174. Roper was affirmed in People v. Porter, 54

N.Y.S.2d 3 (N.Y. Co. Ct. 1945), where three juveniles were charged with felony-murder based on a

killing that occurred during a robbery. The court, noting again the lack of felonious intent, stated

that while "an adult may be convicted of first degree murder on proof that a killing occurs in the

course of a felony upon which he is engaged, a fifteen-year-old youth may not be so adjudged,

unless there is proof that he intended to kill.” Porter, 54 N.Y.S.2d at 5-6. This rule was also

followed in People v. Rooks, 243 N.Y.S.2d 301 (N.Y. Sup. Ct. 1963), aff’d, 18 N.Y.2d 960 (1966),

in which a fifteen-year-old boy was charged with murder after killing a nine-year-old during a

robbery. The court noted that even though almost thirty years had passed since Roper, that holding

was still controlling law: under the New York statutory scheme, "a [fifteen-]year-old child may not

be charged or convicted of ‘felony’ murder. He may only be ‘charged’ with design murder. . . ."

Rooks, 243 N.Y.S.2d at 308.

This line of cases was affirmed just six years ago in People v. Cruz, 225 A.D.2d 790, 640

24
N.Y.S.2d 159 (N.Y. App. Div. 1996), in which the court held, again, that a fifteen-year-old could

not be held criminally responsible for felony-murder when the underlying felony was one for which

there was no adult criminal responsibility.5

The New York line of cases should be adopted by this Court to avoid the jurisprudential

contradiction illustrated by Lionel’s case. The Florida legislature has determined that aggravated

child abuse is not an offense for which a twelve-year-old could be tried as an adult under any

circumstance. See generally, §§ 985.225, 985.226, & 985.227, Fla. Stat. (2001).6 Yet aggravated

child abuse was utilized by the prosecution to bootstrap Lionel’s case into a felony-murder charge

carrying a sentence of life without parole. This Court should reject this approach and resolve this

contradiction by overturning the felony-murder conviction in this case, since it is predicated on a

felony for which adult criminal court prosecution is barred under Florida law.

B. The felony-murder rule does not apply in this case because the underlying felony
merges with the homicide
5
The Court of Criminal Appeals of Tennessee is the only court we have found which has
taken a contrary position, State v. Gribble, 655 S.W. 2d 196 (Tenn. Crim. App. 1983), but
its logic was unrelated to the relationship between adolescent development and the penal
code.
6
Sections 985.226 and 985.227 explicitly preclude prosecution as an adult of a child
under fourteen years of age. Section 985.225 allows prosecution of a child of any age in
adult court, but only for crimes which carry a life sentence or the death penalty. In
construing §985.225, courts have indicated that the legislature intended to remove
jurisdiction from the juvenile court only for charges carrying the penalty of life in prison or
death. See State v. DeGarmo, 454 So. 2d 600, 601 (Fla. 5th DCA 1984)(a minor’s pre-
indictment plea to aggravated assault in juvenile court was valid because that crime is not
a capital or life offense); Ritchie v. State, 670 So. 2d 924 (Fla. 1996) (a child is entitled to
the protections of the youthful offender statute whenever he has been convicted of a crime
that does not carry a life sentence or the death penalty); King v. State, 426 So. 2d 12 (Fla.
1982)(holding that the legislature has restricted grand juries to indictment of juveniles only
of those crimes punishable by death or life imprisonment).

25
 Under the merger doctrine, aggravated child abuse cannot be a predicate felony for felony-

murder. This doctrine, long recognized under common law, nullifies §§ 782.04(1)(a)(2)(h) and

782.04(3)(h), Fla. Stat. (2001). Indeed, the common law has developed the merger doctrine to

temper the harsh application of the felony-murder rule. Under the merger doctrine, the felony-

murder rule does not apply if the underlying felony is an offense that is an “integral part” or is

“included in fact” in the homicide itself. In other words, the felony-murder rule only applies if the

underlying felony is independent of the conduct which kills or involves separate conduct from the

acts of personal violence which constitute a necessary part of the homicide itself. LaFave, supra, at

689.

Thus, it is well established that felonious assault may not be the underlying felony for a

felony-murder charge. See, e.g., People v. Moran, 246 N.Y. 100, 158 N.E. 35 (N.Y. 1927); State v.

Clark, 204 Kan. 38, 460 P.2d 586 (Kan. 1969); People v. Hansen, 885 P.2d 1022, 1028 (Cal. 1994);

State v. Campos, 921 P.2d 1266, 1270-72 (N.M. 1996); People v. Morgan, 197 Ill. 2d 404, 758

N.E.2d 813 (Ill. 2001). Because assault is a necessary lesser included offense in any reckless or

negligent killing, every such killing would become murder if assault were a predicate felony for

felony-murder. The assault is said to “merge” with the homicide, meaning that it cannot be a

separate felony on which a murder conviction can be based.7

7
Other courts have also applied the merger doctrine, typically in cases of aggravated
batteries or assaults, including child abuse. See LaFave, supra, at 687-88 n.112 (citing
People v. Ireland, 450 P.2d 580 (Cal. 1969)); People v. Smith, 678 P.2d 886 (Cal. 1984);
State v. Lucas, 759 P.2d 90 (Kan. 1988)(“A single instance of assaultive conduct will not
support the use of abuse of a child as a collateral felony for felony murder when that act is
an integral part of the homicide.”); People v. Huther, 77 N.E. 6 (N.Y. 1906); State v.
Branch, 415 P.2d 766 (Or. 1966).

26
 Courts have adopted the merger doctrine to limit the scope of the felony-murder rule and to

mitigate the harshness of the rule when unintended consequences result from the underlying felony.

Dressler, supra, at 484. The reasoning for the doctrine is perhaps best expressed by the California

Supreme Court in the case of Ireland, 450 P.2d 580, 590 (Cal. 1969), supra, a felony-murder case

involving an assault with a deadly weapon:

We have concluded that the utilization of the felony-murder rule in circumstances

such as those before us extends the operation of the rule beyond any rational function

that it is designed to serve. To allow such use of the felony-murder rule would

effectively preclude the jury from considering the issue of malice aforethought in all

cases wherein homicide has been committed as a result of a felonious assault--a

category which includes the great majority of homicides. This kind of bootstrapping

finds support neither in logic nor in law.

The contrary result–-allowing every homicide to be prosecuted as murder under a felony-

murder (assault) theory–-is constitutionally suspect, because it gives insufficient attention to the

mitigating effects of mental state. Cf. Montana v. Egelhoff, 518 U.S. 37 (1996) (lack-of-mens rea

defenses that are consistent with traditional common law doctrine may have constitutional status).

Constitutional concerns aside, allowing assault to form the predicate for felony-murder would lead

to the absurd result, contrary to obvious legislative intent, of rendering manslaughter and other

lesser forms of homicide irrelevant. Thus, assault is an inappropriate basis for felony-murder. See

generally, Richard Bonnie, et al., Criminal Law 845-46 (1997).

The merger doctrine should also apply in this case to bar a felony-murder charge based on

the felony of aggravated child abuse. Without application of the merger doctrine, every death that

27
occurs during aggravated child abuse would automatically become murder.

Florida’s manslaughter statute provides for a lesser penalty than that imposed in murder

cases for killings caused by “culpable negligence.” § 782.07(1), Fla. Stat. (2001). “Culpable

negligence” has been defined in a number of ways: (1) “a state of mind so wanton or reckless that

the behavior it produces may be regarded as intentional,” Bowen v. State, 791 So. 2d 44, 61 (Fla. 2d

DCA 2001); (2) “conscientiously doing an act which a reasonable person would know is likely to

result in death or great bodily harm,” Arnold v. State, 755 So. 2d 796, 798 (Fla. 2d DCA 2000); and

(3) “consciously doing an act or following a course of conduct that the defendant must have known,

or reasonably should have known, was likely to cause death or great bodily injury,” Fla. Std. Jury

Instr. (Crim.) 2.02(a) (June, 2000).

Aggravated child abuse occurs, inter alia, when a person commits aggravated battery on a

child, § 827.03(2)(a), Fla. Stat. (2001), or when a person “knowingly or willfully abuses a child and

in so doing causes great bodily harm,” § 827.03(2)(c), Fla. Stat. (2001). Aggravated battery is

defined, inter alia, as “intentionally or knowingly” causing “great bodily harm.”

§ 784.045(1)(a)(1), Fla. Stat. (2001). Abuse is defined, inter alia, as “[a]n intentional act that could

reasonably be expected to result in physical or mental injury to a child.” § 827.03(1)(b), Fla. Stat.

(2001).

Given the definitions of manslaughter and aggravated child abuse, every manslaughter

charge involving a child victim would, absurdly, also become a felony-murder charge based on

28
aggravated child abuse.8 Any killing of a child that is culpably negligent, as defined in Florida’s

manslaughter law, involves either knowingly causing great bodily harm to the child or intentionally

committing an act that could reasonably be expected to result in physical harm to the child. This is

also the definition of aggravated child abuse. The legislature could not have intended to render

Florida’s manslaughter statute moot in all cases involving child-victims.

This conclusion is reinforced by the fact that Florida’s manslaughter statute specifically

provides for an aggravated manslaughter verdict for culpably negligent killings of children under

the age of eighteen. See § 782.07(3), Fla. Stat. (2001); Koenig, 757 So. 2d 595 (Fla. 5th DCA

2000), supra. The legislature would not have enacted a special manslaughter provision for cases

involving child-victims if, as would be the case if the merger doctrine is not applied, every non-

accidental killing of a child is felony-murder.

Although this Court has once before rejected the merger argument in the context of child

abuse, Mapps v. State, 520 So. 2d 92 (Fla. 4th DCA 1988), its rationale was based on a prior

statutory scheme. This Court pointed out that most courts that apply the merger doctrine have done

so when the legislature has not been clear about which felonies are appropriate predicates for the

felony-murder doctrine. Mapps, 520 So. 2d at 93. Where, as in Florida, the legislature specifically

listed the predicate felonies, application of the merger doctrine was unnecessary. Mapps, 520

8
Indeed, at least one Florida court has reached this unfortunate conclusion, holding that
“a death occurring as a result of child abuse, aggravated or simple, would be either first or
third degree felony murder and not aggravated manslaughter of a child.” Koenig v. State,
757 So. 2d 595, 596 (Fla. 5th DCA 2000). But cf. Stephens v. State, 787 So. 2d 747, 763
(Fla. 2001) (Anstead, J., concurring in part and dissenting in part)(“We should hesitate
before making . . . a giant leap and elevating a crime [such as unintentionally causing the
death of a child] ordinarily characterized as culpable negligence and prosecuted as
manslaughter, to one deserving of the death penalty.”).

29
So. 2d at 93. Thus, this Court held that aggravated child abuse, which is listed in Florida’s murder

statute, can form the basis for felony murder. Mapps, 520 So. 2d at 93.

In reaching this conclusion, however, Mapps relied on a 1966 Florida Supreme Court case,

Robles v. State, 188 So. 2d 789 (Fla. 1966). That case held, in pertinent part, that “the [merger]

problem . . . cannot exist under a statute like Florida's, which limits the felony-murder rule to

homicides committed in the perpetration of specified felonies, not including assault in any of its

forms.” Robles, 188 So. 2d at 792 (emphasis added). Today, unlike in 1966, the Florida felony-

murder statute does include a form of assault, specifically aggravated child abuse, which was added

to the Florida statute in 1984. Ch. 84-16, § 1, Laws of Fla. (1984). Thus, Robles does not settle the

merger question in this case.

Moreover, it is doubtful that the legislature ever contemplated that the felony-murder rule

would be used to convict a child, presumed incapable of forming criminal intent, as an adult for

first-degree murder. Finally, given Lionel’s pre-teen lack of higher cognitive processing abilities

that regulate impulse control and decision-making, there is a serious question as to whether he could

even form the mens rea of aggravated child abuse. Clearly, application of the felony-murder rule in

this case broadens the scope of the rule to new and unexpected dimensions. This Court should

utilize the merger doctrine to mitigate this overly broad and harsh use of the felony-murder rule.9

9
There is precedent for the use of the merger doctrine for just such a mitigating purpose
under Florida law. See Mills v. State, 476 So. 2d 172, 177 (Fla. 1985) (applying the
merger doctrine to prevent dual convictions for homicide and aggravated batteries which
resulted in additional injuries to another person or property).

30
III. EVEN IF THIS COURT FINDS THAT THE FELONY-MURDER DOCTRINE
APPLIES, THE UNDERLYING FELONY OF AGGRAVATED CHILD ABUSE WAS
NEVER INTENDED TO BE USED AGAINST CHILDREN

A. The plain meaning of “child abuse” does not extend to acts by a “person” who is a
child and injures another child in the course of play

Construing “any person” in the criminal “child abuse” statute to include a child injuring

another child in the course of play flies in the face of the meaning of “child abuse.” Section 827.03,

Fla. Stat. (2001), is titled “Abuse, Aggravated Abuse, and Neglect of a Child.” Section 827.03(1)

reads:

‘Child abuse’ means: (a) [i]ntentional infliction of physical or mental injury upon a
child; (b) [a]n intentional act that could reasonably be expected to result in physical
or mental injury to a child; or (c) [a]ctive encouragement of any person to commit an
act that results or could reasonably be expected to result in physical or mental injury
to a child. A person who knowingly or willfully abuses a child without causing great
bodily harm . . . commits a felony of the third degree.

Section 827.03(2) reads:

‘Aggravated child abuse’ occurs when a person: (a) [c]ommits aggravated battery on
a child; (b) [w]illfully tortures, maliciously punishes, or willfully and unlawfully
cages a child; or (c) [k]nowingly or willfully abuses a child and in so doing causes
great bodily harm, permanent disability, or permanent disfigurement to the child. A
person who commits aggravated child abuse commits a felony of the first degree.

Generally, the “plain meaning” of statutory language is the first consideration of statutory

construction. See State v. Bradford, 787 So. 2d 811, 817 (Fla. 2001). The rules of statutory

construction require that courts give statutory language its plain and ordinary meaning, unless the

words are defined by statute. See State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980); Plante v. Dep’t

of Bus. & Prof’l Regulation, 685 So. 2d 886, 887 (Fla. 4th DCA 1996); Newberger v. State, 641

So. 2d 419, 420 (Fla. 2d DCA 1994). In § 827.03, the word “person” is not defined. In the absence

of a statutory definition, the plain and ordinary meaning of words can be ascertained, if necessary,

31
by reference to a dictionary. See State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997); Green v.

State, 604 So. 2d 471, 473 (Fla. 1992); Plante, 685 So. 2d 886; WFTV, Inc. v. Wilken, 675 So. 2d

674 (Fla. 4th DCA 1996). The dictionary definition of the word “person” includes incorporated

groups as well as individuals.10 The Supreme Court of Florida has also held that the word

“persons” “may mean and include municipal corporations. . . .” See City of St. Petersburg v. Carter

et al., 39 So. 2d 804, 804 (Fla. 1949). Clearly, the word “person” has many definitions--some of

which are absurd in this context, and some of which would significantly expand the scope of

criminal child abuse--rendering the meaning of § 827.03 ambiguous.

To resolve ambiguity, the cardinal rule of statutory construction is that the statute should be

construed to give effect to the intention the legislature expressed in the statute; legislative intent is

the polestar by which the court must be guided. See City of Tampa v. Thatcher Glass Corp., 445

So. 2d 578, 579 (Fla. 1984). For a court to hold otherwise would make the obvious mandate of the

legislature subservient to the discretion of the court. See Ellis v. State, 622 So. 2d 991, 1001 (Fla.

1993). To discern legislative intent, a court must consider the statute as a whole, including the evil

to be corrected; the language, title, and history of its enactment; and the state of law already in

existence. See McKibben v. Mallory, 293 So. 2d 48, 52 (Fla. 1974); Hinn v. Beary, 701 So. 2d 579,

581 (Fla. 5th DCA 1997). The evil addressed in § 827.03 is child abuse and neglect; therefore

construing “person” to include children who injure other children would frustrate rather than further

the legislative intent.

Moreover, the expansive interpretation of “person” adopted by the lower court flies in the

10
Webster’s New World Dictionary of the American Language 1061 (David B. Guralnik
ed., 2nd college ed. 1982). Theoretically, corporations and/or partnerships could commit
“child abuse,” as defined under § 827.03.

32
face of the common meaning of another term integral to the statute--the term “child abuse.” Our

research has identified no reported case in any jurisdiction other than Florida11 and only one

reported case in Florida12 in which a child has been charged with “child abuse” for physical injury

to another child. This is not surprising since the term “child abuse” is universally understood to

mean abuse of children by parents and adult caregivers. Absent some clear statement of intent, this

Court should not assume that the Florida legislature intended to radically expand the concept of

“child abuse” beyond its common meaning. If “person” includes a child of any age in any context,

then a school yard fight, two siblings scuffling, or a football scrimmage that got out of control

would all be punishable as felony child abuse. The logical construction of the provision, and the

one that avoids these absurd results, is that the “person” who commits aggravated battery, when

coupled with the term “child abuse,” was not intended to include a child who injures another child

11
See, e.g., Milton Roberts, Validity and Construction of Penal Statute Prohibiting Child
Abuse, 1 A.L.R. 4th 38 (West 2002) (1980).
12
The court below pointed to K.B.S. v. State, 725 So. 2d 448 (Fla. 2d DCA 1999), as a
precedent for its holding that children can be charged with aggravated child abuse.
However, the K.B.S. court was apprehensive about its own ruling, remarking that
interpreting “person” to include another child produces the absurd result that a nine-year-
old could be found guilty of “child abuse” for injuring a fourteen-year-old. 725 So. 2d at
449. Amici believe that K.B.S. was not only wrongly decided but is also distinguishable
from the case at bar. K.B.S. involved a fourteen-year-old defendant who intentionally
burned a nine-year-old with a lighted cigarette. Such conduct is torture, not play. See
§ 827.03(2)(b), Fla. Stat. (2001) (defining aggravated child abuse to cover a defendant
who “willfully tortures” a child). The only other Florida case found in which a minor was
charged with aggravated child abuse is A.J. v. State, 721 So. 2d 761 (Fla. 2d DCA 1998).
This case is clearly distinguishable since (1) the defendant A.J. appears to be a minor
parent charged with negligent conduct and (2) the appeals court reversed her conviction of
aggravated child abuse. The appeals court noted that the trial court “found that
[defendant], through culpable negligence, and not through any type of intentional act,
inflicted a physical injury on the child,” and therefore the charge of aggravated child abuse
was improper since misdemeanor child abuse (which applies to parents and caregivers)
was not a lesser included offense of aggravated child abuse and had not been alleged in
the petition. A.J., 721 So. 2d at 762.

33
in the course of play.

Embodied in § 775.021(1), Fla. Stat. (2001), and enunciated many times by appellate courts,

see e.g., Wallace v. State, 724 So. 2d 1176 (Fla. 1998), is the general rule of statutory construction

that criminal legislation must be strictly construed in favor of the accused. See also State v. Camp,

596 So. 2d 1055 (Fla. 1992). “To the extent that penal statutory language is indefinite or ‘is

susceptible of differing constructions,’ due process requires a strict construction of the language in

the defendant’s favor under the rule of lenity.” Kobel v. State, 745 So. 2d 979, 982 (Fla. 4th DCA

1999). In Kobel, this Court rejected the application of a statute criminalizing “procuring [a minor]

for prostitution” to a defendant who had offered money to a child in exchange for sex. It

acknowledged that one of the meanings of “procure” is to obtain. However, the term must be read

in context. “In a general sense, ‘procure’ could mean to ‘obtain’. . . . However, in the context of

prostitution, the word ‘procure’ must be given its specialized meaning, which is ‘to obtain as a

prostitute for another.’” Kobel, 745 So. 2d at 982. Likewise, in the context of child abuse,

“person,” when denoting a perpetrator, must be given its specialized meaning. It includes adult

caregivers, but just as plainly excludes a child of twelve left to play unsupervised with another

child.

B. The legislature did not intend § 827.03(2) to be used against children who hurt other
children

“To determine legislative intent, we must view the entire statute and give full effect to all

statutory provisions, construing related provisions in harmony with one another.” State v.

Kliphouse, 771 So. 2d 16, 19 (Fla. 4th DCA 2000) (citing to Young v. Progressive Southeastern Ins.

Co., 753 So. 2d 80 (Fla. 2000)). In an analogous case, the Supreme Court of Vermont rejected the

argument that “person” included a child of any age, regardless of the context in which the conduct

34
occurred. In re G.T., 758 A.2d 301 (Vt. 2000). The case involved a criminal charge of statutory

rape brought against a fourteen-year-old boy for sexual contact with a girl under age sixteen. The

Vermont justices pointed out that construing “person” to include another child under sixteen years

of age would mean that all children engaging in sexual contact with other children would be

committing child abuse no matter what their respective ages. 758 A.2d 301. Furthermore, all those

required by law to report child abuse would be guilty of a crime if they failed to report all sexual

activity they knew or had reason to believe was occurring between “persons” under sixteen years of

age and thus would risk criminal prosecution.

The interpretation of § 827.03 as covering acts by children regardless of age or context

would produce even more bizarre results. Parents and other adults would be required to report all

injuries to children caused by other children during play or face criminal prosecution. Under

§ 39.205(2), Fla. Stat. (2001),

Unless the court finds that the person is a victim of domestic violence or that other

mitigating circumstances exist, a person who is [eighteen] years of age or older and

lives in the same house or living unit as a child who is known or suspected to be a

victim of child abuse, neglect of a child, or aggravated child abuse, and knowingly

and willfully fails to report the child abuse commits a felony of the third degree.

The Florida Department of Children and Family Services (DCF) would be obligated to report each

such incident to law enforcement as a “known or suspected violation of § 827.03,” triggering a duty

on the part of law enforcement to pursue the case or notify the department in writing why it did not.

See § 39.301(2), Fla. Stat. (2001). Clearly, applying the child abuse statutes in this manner would

defeat their very purpose, flooding a system already in crisis with vast numbers of inappropriate

35
cases.

Florida law contemplates that a minor may be the perpetrator of child abuse, but only in

certain very limited situations. One involves child-on-child sexual activity which in certain

circumstances can constitute “sexual abuse.” See §§ 39.01(7)(b) (defining child sexual abuse) &

39.307 (“reports of child-on-child sexual abuse”), Fla. Stat. (2001). Under § 794.011(2)(b), Fla.

Stat. (2001), a person under eighteen may be guilty of “sexual battery” if the victim is under twelve.

A second situation involves a person who, although still a minor, is a parent or is employed to care

for children. Section 39.201(1), Fla. Stat. (2001), establishes that “any person . . . who knows, or

has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal

custodian, caregiver, or other person responsible for the child’s welfare shall report such knowledge

or suspicion to the department.” The Florida Department of Children and Families website explains

that it will accept reports of “abuse” only when a child “has been harmed or is believed to be

threatened with harm from a person responsible for the care of the child” (emphasis added), and

defines such persons as

1. a PARENT, even if the parent is a minor; or 2. an ADULT HOUSEHOLD

MEMBER found in the home continually or at regular intervals; or 3. ANOTHER

ADULT who has been entrusted with, or voluntarily assumed responsibility for the

care of the child; or 4. ANOTHER CHILD who is an employee or volunteer of a

daycare, private school, agency, summer camp or similar facility when given sole

responsibility for the care of the child.13

13
Florida Dep’t of Children & Families, Child Abuse, at
http://www5.myflorida.com/cf_web/myflorida2/healthhuman/childabuse/definitions.html

36
While these procedures envision that a minor parent or a minor employed as a caregiver may be a

perpetrator of child abuse, the definition clearly excludes a child playing or fighting with another

child from the class of persons who can be reported for “child abuse.”

The notion that a minor parent might be charged with criminal child abuse is supported by

the legislature’s inclusion of aggravated child abuse in a lengthy list of crimes in several sections of

Ch. 985, Fla. Stat. (2001), dealing with delinquency procedures. However, there is no indication

that the drafters of these procedural provisions, let alone the drafters of the original substantive

criminal law, ever envisioned that children who injure other children in unsupervised play would be

charged with aggravated child abuse. Even if the legislature that enacted Ch. 985 had harbored

such an intent, “subsequent legislative history will rarely override a reasonable interpretation of a

statute that can be gleaned from its language and legislative history prior to its enactment.” State v.

Smith, 547 So. 2d 613, 621 (Fla. 1989) (Barkett, J. concurring) (quoting Consumer Product Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980)).

Further illustrating the irrationality of interpreting “person” in § 827, Fla. Stat. (2001), to

include a child left unsupervised with another child is the conflict between this interpretation and

§ 383.402, Fla. Stat. (2001). This section establishes “child abuse death review committees” and

provides that they “shall review the facts and circumstances of all deaths of children from birth to

age eighteen that occur in this state as the result of child abuse or neglect and for whom at least one

report of abuse or neglect was accepted by the central abuse hotline.” § 383.402(1), Fla. Stat.

(2001). Since child-on-child injuries are not reportable to the central abuse hotline, the lower

court’s interpretation of § 827.03 as applying to such cases creates the anomalous situation of a

(last visited Feb. 18, 2002).

37
criminal “child abuse” death being excluded by definition from the scheme for tracking and

analyzing “child abuse” deaths. It is far more logical to assume that, throughout the statutes on

child abuse, the term “child abuse” must have a consistent meaning and excludes child-on-child

injuries except where the legislature expressly instructs otherwise.

In State v. Fuchs, 769 So. 2d 1006 (Fla. 2000), the Florida Supreme Court adopted this

approach in construing the meaning of another section of Ch. 827, Fla. Stat. (2001). A parent who

had left an eleven-year-old boy in charge of four- and five-year-old siblings was charged with

contributing to the delinquency or dependency of a minor under § 827.04(1)(a), Fla. Stat. (2001).

The Court concluded that § 827.04, Fla. Stat. (2001), which like § 827.03, had been amended in

1996, must be read in pari materia with other Florida laws on child protection. It held that the

terms “delinquency” and “dependency” were “intended to be understood as terms of art as

described in Chs. 39, 984 and 985 and not in the ordinary way these terms are sometimes used.”

Fuchs, 769 So. 2d at 1011 (citing to Fla. Stat. (1997)). According to the court, “[t]he fact that these

chapters have identical underlying purposes (i.e., the general protection of children and

corresponding parental, custodial and guardian responsibilities) lends further support to the

conclusion that these provisions are to be read in proper relationship to one another.” Fuchs, 769

So. 2d at 1010.

The legislative history of SB 116, 96-322, which amended former § 827.04 to create current

§ 827.03, confirms that the drafters equated “child abuse” under the criminal law with “child abuse”

as defined by Ch. 39, Fla. Stat. (2001), and expected that the defendants charged under § 827.03

would be a subset of child abuse “perpetrators” reported to DCF pursuant to § 39.201, Fla. Stat.

38
(2001).14 The legislature clearly did not believe that, in enacting § 827.03, it was expanding the

criminal law to reach a vast new class of perpetrators beyond those covered by existing child abuse

laws.

It is also plain, looking at the text of § 827.03, that the Florida legislature was not blind to

the dangers posed by children left unsupervised with other children. However, the legislature

specifically intended a different subsection of § 827 to cover this situation. Section 827.03(3)(a)(1),

Fla. Stat. (2001), defines criminal neglect of a child as a

caregiver's failure or omission to provide a child with the care, supervision, and
services necessary to maintain the child's physical and mental health, including, but
not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical
services that a prudent person would consider essential for the well-being of the
child.

This provision is consistent with Florida’s civil child protection laws. The “harm” covered by Ch.

39 expressly includes

[l]eaving a child without adult supervision or arrangement appropriate for the child’s

age or mental or physical condition, so that the child is unable to care for the child’s

14
In its final report on CS/HB 189 and the statutes affected, the Florida House of
Representatives Committee on Criminal Justice noted that the reclassification of
misdemeanor child abuse to a third degree felony and aggravated child abuse from a third
to a second degree felony would have some impact on the state’s overall prison
population. Fla. H.R. Committee on Criminal Justice, Bill Analysis & Economic Impact
Statement: Bill # CS/HB 189: Child, Neglect, and Exploitation, Apr. 2, 1996, at 12. Since
information on arrests for misdemeanor child abuse was not available, the Committee
based its assessment on numbers of “confirmed perpetrators” reported to the Florida Dep’t
of Health and Human Services in 1995/96, calculating that some five percent of them
might be expected to receive jail sentences. Id. at 13. The study, if anything, was
overestimating the fiscal impact, since “[t]he number of ‘confirmed perpetrators’ . . . does
not necessarily translate into arrests, charges, and convictions for child abuse offenses.”
Id.

39
 own needs or another’s basic needs or is unable to exercise good judgment in

responding to any kind of physical or emotional crisis.

§ 39.01(30)(a)(3), Fla. Stat. (2001). A parent or caregiver may be charged with criminal neglect

based on a single incident that results in, or could reasonably be expected to result in, serious injury

or a substantial risk of death to a child. See State v. Wynne, 794 So. 2d 642 (Fla. 2d DCA 2001)

(finding one incident of failure to supervise sufficient to constitute criminal neglect, even though no

injury actually occurred). By its plain meaning, § 827.03 makes a caregiver who fails to supervise

criminally liable for injuries resulting from this form of “neglect.”

The leading authority on child abuse identifies “neglect of supervision” as a distinct form of

neglect that can be, and often is, fatal. Most commonly, such fatalities occur when a parent or

caregiver goes out and leaves children playing without appropriate supervision.

Neglect of supervision can also occur if the parent is in the home but is too impaired

(as a result of drugs, alcohol, mental illness, physical illness, low intelligence,

immaturity, or lack of empathy) to pay adequate attention to the children. It also

occurs if . . . the oldest child left in charge is not able adequately to supervise the

other children.15

As this expert explains,

Children can inflict serious injury not only to themselves but also to siblings and

playmates. . . . Anticipating tragedy and averting it can reasonably be expected of an

adult; in neglectful parents, however, such forethought is deficient. As a result, their

15
Hendrika B. Cantwell, The Neglect of Child Neglect, in The Battered Child 347, 355-56
(Mary Edna Helfer, Ruth S. Kempe, & Richard D. Krugman eds., 5th ed. 1997).

40
 neglected children are often in danger, even if the parents are in the house. . . .

Sometimes the parent works at night or is ill and thus sleeps all day, leaving the

children unattended.16

Under the statutory scheme, the death of six-year-old Tiffany, while she was left by her

sleeping aunt to play unattended with her far larger male cousin, might have triggered application of

§ 827.03(3)(a)(1), but certainly not § 827.03(2).17 Courts in other jurisdictions have held that

leaving an older child to play unsupervised with a younger child can be per se neglect, based on the

potential for serious harm during such unsupervised play between immature children of varying

sizes and strengths. An Ohio appeals court interpreting the state’s civil neglect statute remarked,

Not only was [the nine-year-old sibling] left without supervision, he was required to

babysit and interact with the six-year-old. We are apparently being asked to believe

that there was never any horseplay, roughhousing, anger, resentment, jealousy,

daredevil behavior, or poor judgment displayed between the two brothers during

these unsupervised intervals.

In re Zeiser, 133 Ohio App. 3d 338, 348 (Ohio Ct. App. 1999). The Ohio court found that both the

older and the younger child were neglected. 133 Ohio. App. 3d at 340. Adhering to the Florida

16
Id. at 356-57.
17
Amici offer no opinion on whether this conduct involved the level of “culpable
negligence” required to convict a caregiver of criminal neglect. Our point is that the
statutory scheme addressing “abuse, aggravated abuse, and neglect of a child” set forth in
§ 827.03 shows the legislature’s intent to focus on the culpability of the parent or caregiver
who fails to supervise, rather than on punishing the children who are left unsupervised.
Under § 827.03(3)(a)(1), the key issue should be whether Lionel’s mother, who was
babysitting Tiffany, “willfully or by culpable negligence neglect[ed the children] and in so
doing cause[d] great bodily harm” when she left them to play unsupervised while she slept.
See Eversley v. State, 748 So. 2d 963, 970 (Fla. 1999). Punishing the child in lieu of the
parent clearly violates the statutory scheme.

41
legislature’s scheme of utilizing the criminal neglect provision, as opposed to the criminal abuse

provision, would serve to deter and punish any culpable acts or omissions by adults that resulted in

six-year-old Tiffany’s death without distorting the meaning of the term “child abuse” or distorting

the functioning of the systems for prevention and reporting of abuse and neglect. “A statutory

definition of a felony should not by construction or interpretation be extended to cover acts of

persons that are not within the intent of the statute, for only the lawmaking power can legally

designate or define the criminal offenses for which penalties may be imposed.” Pugh v. State, 624

So. 2d 277, 278-79 (Fla. 2d DCA 1993) (citing to Bradley v. State, 79 Fla. 651, 84 So. 677, 678

(1920)). In the wake of such a tragedy, recasting a child of twelve from victim of parental neglect

to perpetrator of child abuse violates the spirit of Florida’s laws protecting children under eighteen

from both child abuse and child neglect.

C. The historical development of laws criminalizing child abuse confirms that they were
not intended to punish children

The historical development of child abuse and neglect laws, both in Florida and elsewhere in

the country, illustrates the meaning of the term “child abuse” and confirms that these laws were

meant to protect children from the special harm of abuse at the hands of adults and not to heighten

existing penalties for children who harm other children. Harms inflicted on children by children

have traditionally been punishable under tort laws and under general criminal prohibitions of battery

and assault. Special laws on child abuse and neglect were necessary because, under common law,

parents, other caregivers and authority figures, such as teachers and apprentices’ masters, enjoyed

the privilege of using physical violence or restraint to enforce their authority over children,18 while

18
Robert W. ten Bensel, Marguerite M. Rheinberger, & Samuel X. Radbill, Children in a
World of Violence: The Roots of Child Maltreatment, in The Battered Child 3, 21 (Mary

42
at the same time being responsible for providing proper care and supervision. Laws on child abuse

set the threshold for how much force a parent or other adult caregiver could use and defined when

discipline crossed the line into abuse. State v. McDonald, 785 So. 2d 640 (Fla. 2d DCA 2001).

The first modern child abuse laws date to the 1960s, when concerned physicians, led by Dr.

Henry C. Kempe, began to understand the severe harms that could result from adult violence toward

vulnerable children. They developed medical diagnoses such as “battered child” to identify

children who had been subjected by their parents to excessive force and urged the adoption of laws

requiring the reporting of such abuse to central authorities.19 Child abuse laws were aimed at

deterring and punishing forms of adult violence that had previously been ignored or excused.

Spurred by the federal Child Abuse Protection and Treatment Act of 1974, Public Law 93-

247 (“CAPTA”), states strengthened and coordinated their laws providing for mandatory reporting

of incidents of child abuse and intervention by child protective services. CAPTA adopted a broad

definition of child abuse and neglect as:

any recent act or failure to act on the part of a parent or caretaker, which results in

death, serious physical or emotional harm, sexual abuse or exploitation, or an act or

failure to act which presents an imminent risk of serious harm.

42 U.S.C. 5106(g)(2). “Abusive behavior by other individuals, whether known to the child or

Edna Helfer, Ruth S. Kempe, & Richard D. Krugman eds., 5th ed. 1997).
19
Id. at 22-23. Between 1963 and 1968, all fifty states enacted mandatory reporting laws.
Id. at 25. The landmark article “The Battered Child Syndrome” was published in 1962 in
the Journal of the American Medical Association. Id. at 24. And the first edition of The
Battered Child, edited by Ray E. Helfer and Henry C. Kempe, was published in 1968. Id.

43
strangers, is considered assault.”20 Modern child protective laws, such as those of Florida, create an

extensive and integrated system for prevention, identification, and response to child abuse and

neglect.21

In keeping with these new civil provisions, some states, including Florida, passed criminal

statutes explicitly subjecting adults who maltreated children in their care to criminal as well as civil

penalties.

In the early 1980s, laws in many states did not permit greater sanctions against

abusive parents than their loss of custody of the abused child. Public dissatisfaction

with this situation combined with the emerging public awareness of domestic

violence. The public recognized that treatment of children or women which would

be criminal if perpetrated on strangers was not illegal if it occurred within families.

New legislation was passed in most states which made the maltreatment of children

not only the basis of child protection action to limit or terminate parental custody but

also the basis for criminal prosecution for assault.22

at 25.
20
Diana J. English, The Extent and Consequences of Child Maltreatment, The Future of
Children: Protecting Children from Abuse and Neglect, Spring 1998, at 39, 40.
21
In addition to Ch. 39, which establishes a system for reporting of abuse, protective
custody of children, family reunification services, and termination of parental rights, many
other provisions of Florida law address child abuse and neglect. See, e.g., §§ 383.402
(requirements for death review committees when children die because of abuse or
neglect); 450.151 (provisions on abuse of children by employers); & 395.1023 (provisions
for reporting by hospital employees), Fla. Stat. (2001).
22
Michael H. Weber, The Assessment of Child Abuse: A Primary Function of Child
Protective Services, in The Battered Child 120, 122 (Mary Edna Helfer, Ruth S. Kempe, &
Richard D. Krugman eds., 5th ed. 1997).

44
 In Florida, the process unfolded in several stages. In Kama v. State, 507 So. 2d 154, 162

(Fla. 1st DCA 1987), the court concluded that parents could not be prosecuted for misdemeanor

child abuse because of the common law privilege, but that any parental discipline exceeding that

privilege was a felony. The legislature revised its laws to respond to Kama’s double-edged sword.

Examining the interplay between Ch. 39's civil sanctions and § 827.03's criminal sanctions, and

contrasting the scheme that had existed at the time Kama was decided, the court in McDonald

describes how the Florida legislature made the common law privilege obsolete by enacting a

comprehensive civil and criminal statutory scheme: “[Florida’s] current child abuse statutes do not

exempt parents from prosecution for child abuse, but attempt to define the boundary between

permissible parental discipline and prohibited child abuse.” 785 So. 2d at 642-46 (discussing Ch.

96-322, §§ 8 & 10, and Ch. 98-403, § 20, Laws of Fla.). Florida criminal law, unlike civil law, does

not explicitly limit criminal prosecutions of child abuse to parents or caregivers. Indeed, studies of

child abuse as well as reported cases indicate that many adults, not just parents, routinely feel

privileged to beat, whip, and otherwise abuse children. See, e.g., Raford v. State, 792 So. 2d 476

(Fla. 4th DCA 2001) (abuse by mother’s boyfriend). However, except for juvenile sexual abuse,

where statutes in Florida and other states have explicitly carved out a narrow exception, these laws

were neither intended nor used to prosecute children. Their focus has been on adult-on-child

violence not child-on-child violence.

Child abuse laws, as this history illustrates, are a modern response to the historical practice

of excusing the use of excessive force by adults against children. While criminal sanctions focus on

the guilt of the offender, and civil sanctions focus on protection of the victim, both criminal and

civil child abuse laws were intended to serve as a shield for and not a weapon against vulnerable

and immature children.

45
 Given this history, it is not surprising that research has uncovered no reported cases from

any other jurisdiction of prosecution of a twelve-year-old for child abuse. The decision in this case

places Florida in conflict with every other jurisdiction that has a criminal child abuse law.23 Some

states make explicit that criminal child abuse cannot be committed by a child or set forth specific

ages or age differentials. Other states, like Florida, have laws that do not specify an age

requirement. Seven states’ criminal child abuse statutes explicitly provide that the perpetrator of

aggravated child abuse24 must be at least eighteen years of age.25 There are fourteen other states

whose statutory language effectively precludes a child-playmate from being identified as a

perpetrator of child abuse.26 These statutes confine the crime of child abuse to harms inflicted by

either the parent, guardian, or caregiver--all persons who are deemed responsible for the care and

23
CAPTA established the National Clearinghouse on Child Abuse and Neglect
Information. The Clearinghouse provides a number of services, including summaries and
analyses of state laws on criminal child abuse, and makes available various reports
through its website, at http://www.calib.com/nccanch. See Child Abuse and Neglect, State
Statutes Elements: Crimes--Number 34, Physical Abuse (current through Dec. 31, 1999),
at http://www.calib.com/ nccanch/pubs/stats00/physical.pdf (last visited Feb. 18, 2002).
24
Alternatively referred to as assault (on a child), aggravated assault (on a child), felony
battery (on a child), aggravated battery of a child, cruelty to juveniles or endangering the
welfare of a child.
25
720 Ill. Comp. Stat. Ann. § 5/12-4.3(a) (2001); Alaska Stat. § 11.41.220(a)(1)(C)
(Michie 2001); Ariz. Rev. Stat. Ann. § 13-1204(A)(4) (West 2002); Ind. Code §§ 35-42-2-
1(a)(2)(B) & (a)(4) (2001); La. Rev. Stat. Ann. § 14:93(A) (West 2002); N.Y. Penal Law
§§ 120.05(8-9) & 120.12 (2001); Wash. Rev. Code Ann. § 9A.36.120(1) (West 2002).
26
Ala. Code § 26-15-2 (2001); Conn. Gen. Stat. Ann. § 53-20 (West 2002); Del. Code.
Ann. tit. 11, § 1102 (2001); Iowa Code Ann. § 726.6 (West 2001); Md. Ann. Code art. 27,
§ 35C (1998); Me. Rev. Stat. Ann. tit. 17-A, § 554 (West 2002); Mich. Comp. Laws Ann.
§ 750.136b(1)(d) (West 2002); Minn. Stat. Ann. §§ 609.255 & 609.377 (West 2001); N.C.
Gen. Stat. Ann. §§ 14-318.2 & 14-318.4 (West 2002); N.D. Cent. Code § 14-09-22 (2001);
Okla. Stat. Ann. tit. 10, § 7102 (West 2001); R.I. Gen. Laws § 11-9-5.3 (2001); Va. Code
Ann. § 18.2-371.1 (Michie 2001); W. Va. Code § 61-8D-3 (2001).

46
supervision of a child. Courts in other states have held that “person” can extend to adults other than

parents and caregivers. See Jones v. State, 542 P.2d 1316 (Okla. Crim. App. 1975); State v. Lujan,

712 P.2d 13 (N.M. Ct. App. 1985). However, with the sole exception of K.B.S., 725 So. 2d 448, as

discussed above, amici have found no precedent in any law review, treatise, or judicial opinion

sustaining use of criminal child abuse statutes to prosecute a child who physically injures another

child.27

D. A law making any person who harms a person under eighteen, regardless of the
context or the actor’s age, guilty of child abuse would be unconstitutionally broad
and void for vagueness

Even if § 827.03 were construed to cover any person of any age who injures a person under

the age of eighteen, regardless of the context, the statute would be void for vagueness. A criminal

statute that is so vaguely worded as to cover a vast range of conduct to which it will never be

applied invites arbitrary and capricious application and selective prosecution. This Court should

construe the statute narrowly so as to avoid this constitutional infirmity.

The void for vagueness doctrine applies to all criminal laws, not merely those
that regulate speech or other fundamental rights. All such laws must provide fair
notice to persons before making their activity criminal and also restrict the authority
of police officers to arrest persons for violation of the law.

See John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.9 (6th ed. 2000); Kolender v.

Lawson, 461 U.S. 352, 357 (1983). Under Florida as well as federal precedents, “[t]he language of

the statute must ‘provide a definite warning of what conduct’ is required or prohibited, ‘measured

by common understanding and practice.’” Brown v. State, 629 So. 2d 841, 842 (Fla. 1994) (quoting

27
See also Roberts, supra (reporting no cases other than K.B.S., 725 So. 2d 448, in
which the law has been applied to subject a child to proscription of a criminal child abuse
statute).

47
Warren v. State, 572 So. 2d 1376, 1377 (Fla. 1991), and citing to Papachristou v. City of

Jacksonville, 405 U.S. 156 (1972)).

“Because of its imprecision, a vague statute may invite arbitrary or discriminatory

enforcement.” Brown, 629 So. 2d at 842. The broad interpretation of “person” in § 827.03 to reach

a child who injures another child under the circumstances in this case fails both prongs of this test.

To date, § 827.03 has withstood void for vagueness challenges aimed at the conduct prohibited. For

example, in State v. McDeavitt, 776 So. 2d 1086 (Fla. 4th DCA 2001), the court rejected a void for

vagueness challenge to § 827.03 by a special education teacher who was charged with child abuse

for hitting a child in her care with a stapler. The court held that the term “mental injury” was not

unconstitutionally vague because it was defined in Ch. 39. McDeavitt, 776 So. 2d at 1087. See also

Fuchs, 769 So. 2d at 1006 (rejecting void for vagueness challenge to § 827.04(1)(a)). By contrast,

from the language of the statute, no adult, let alone a child, would receive fair notice that one child

striking another could be prosecuted for the crime of “child abuse.” And Ch. 39, far from placing a

child-defendant on notice of the conduct proscribed, as was the case in Fuchs, defines “child abuse”

as excluding injury caused by a child to another child. See supra pp. 27-28.

“Another rationale for the void for vagueness doctrine is to require that there be clear

guidelines to govern law enforcement. Without these guidelines, law enforcement officers have too

much discretion to enforce [a] statute on a selective basis.” Nowak & Rotunda, supra, at 1071. As

the Supreme Court of Vermont has remarked, “It is one thing to give discretion in enforcing a

legislatively defined crime; it is quite another to give prosecutors the power to define the crime.” In

re G.T., 758 A.2d at 514. “[Vague and overbroad] laws are in effect equivalent to enactments of a

48
broad legislative policy against, for example, undesirable gambling, leaving it to the police to

further that policy by such arrests as seem to them compatible with it.” Sanford H. Kadish, Legal

Norm and Discretion in the Police and Sentencing Processes, 75 Harv. L. Rev. 904, 909-11 (1962).

As interpreted by the lower court, § 827.03 would apply whenever an intentional act by any child

(throwing a punch, flinging a baseball bat, hurling an insult) results in foreseeable harm (mental or

physical) to any other child. If all child-on-child physical and mental injuries are felony child

abuse, then felony child abuse occurs hundreds if not thousands of times each day in homes,

schools, playgrounds and sports fields. As construed by the court below, § 827.03 grants the police

and prosecutors sweeping discretion to define which acts are criminal abuse and which are child’s

play.

“It is well established that, where reasonably possible, a statute will be interpreted in a

manner that resolves all doubts in favor of its constitutionality.” Fuchs, 769 So. 2d at 1008. Since

§ 827.03 is open to a logical and obvious construction, in harmony with Ch. 39 and with the laws of

all other states, that avoids this constitutional infirmity, it should be interpreted to exclude charging

children who hurt other children during play with the crime of “child abuse.”

IV. EVEN IF THE AGGRAVATED CHILD ABUSE STATUTE APPLIES TO LIONEL

TATE, HIS FELONY-MURDER CONVICTION MUST BE REVERSED

A. The trial court erred in failing to instruct the jury to presume that Lionel lacked
capacity to form the mens rea necessary to commit aggravated battery

In order for a conviction of felony first-degree murder to stand, a prosecutor must

demonstrate the requisite intent for the underlying felony. In the case at bar, the underlying felony

is aggravated child abuse, § 827.03(2), see pp. 20-21 above, one of the enumerated felonies

triggering the application of the felony-murder rule under Florida law. § 782.04(1)(a)(2)(h).

49
 According to the trial court, the jury could have found Lionel guilty under two definitions of

child abuse. Although Lionel may not have “willfully” inflicted physical injury to Tiffany, he “had

to knowingly do so.” Sentencing Order at 15. Moreover, the court found that Lionel acted

“intentionally” in the incident with Tiffany; given “the numbers and severity of the injuries,” he

should have reasonably expected that his acts would result in her physical injury. Id. at 15-16.

According to the court, the question of “[w]hether or not Lionel Tate had the requisite intent to

commit Aggravated Battery or knowingly or willfully commit Child Abuse was presented to the

jury, and the jury so found that he did.” Id. at 15.

The court also noted that “[l]ay and expert testimony as to the issue of Lionel Tate’s

maturity and by implication his ability to intend an act was admitted over the state’s objection.” Id.

The jury was given a special instruction regarding Lionel’s maturity level which stated that

“[Lionel]’s maturity or lack of maturity may be considered by you in determining if the State has

proven intent.” Charge of the Court, Maturity.

The tendered jury instruction was fatally flawed because it did not address the issue of

whether Lionel's youth and immaturity rendered him incapable of forming the requisite criminal

mens rea in the first place. The jury instruction presumes that Lionel was capable of forming intent.

As previously discussed, capacity and mens rea are different issues and capacity is a necessary

prerequisite to mens rea. In order to avoid juror confusion28 and hold the state to its burden, a jury

instruction like the following should have been given:

28
There is also evidence that at least one juror, Steve Danker, was confused about the
"maturity" jury instruction. In comments he made to the press after the verdict, Danker
complained that he desperately wanted to factor Lionel’s age into the verdict but had
sworn not to do so during voir dire. See Keough, supra, at 8A.

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 Ladies and gentlemen of the jury: In determining whether or not Lionel Tate
intended to commit the crime of aggravated child abuse, the underlying felony of the
felony-murder charge, you must first determine whether due to his age and
immaturity he was capable of forming criminal intent. The law of Florida requires
that you presume that Lionel is incapable of forming criminal intent and places the
burden on the prosecution of overcoming this presumption by a preponderance of
the evidence/clear and convincing evidence, or beyond a reasonable doubt. Florida
law holds that children between the ages of seven and fourteen are presumed to be
unable to form criminal intent and the weight of this presumption decreases as the
child approaches the age of fourteen. In determining whether the state has rebutted
the presumption, you are to assess the totality of the circumstances relating to both
the offender and the offense, including, but not limited to, whether Lionel had guilty
knowledge of wrongdoing, an intelligent design and malice in the execution of the
act, knowledge of the difference between good and evil, and knowledge of the
consequences of the particular acts in which he engaged.29

The failure of the court to give such an instruction relieved the state of its burden of proving

Lionel’s capacity and constitutes reversible error.

B. The state failed to carry its burden of proving the specific intent to commit
aggravated child abuse

As explained earlier, pre-teens think very differently than do adults. Current scholarship and

science demonstrate that adolescents do not and cannot form intent the way adults do. For example,

Daniel R. Weinberger, director of Clinical Brain Disorders Laboratory at the National Institutes of

Health, and one of the leaders in the new area of teen brain research, doubts that most adolescent

killers

intend to kill, in the adult sense of permanently ending a life and paying the price for
the rest of their own lives. Such intention would require a fully developed prefrontal
cortex, which could anticipate the future and rationally appreciate cause and effect.
The young [killers] do not think about the specifics of [killing] at all. . . . [T]he
evidence is unequivocal that the prefrontal cortex of a 15-year-old is biologically
immature. The connections are not final, the networks are still being strengthened

29
Research has uncovered no existing pattern instructions on the infancy defense in a
felony-murder. This instruction is based on the state of the law as articulated in LaFave,
supra, at 425-26.

51
 and the full capacity for inhibitory control is still years away.

Daniel R. Weinberger, A Brain Too Young for Good Judgment, N.Y. Times, Mar. 10, 2001,

available at 2001 WL 15481569.

Moreover, the lack of higher cognitive processing abilities that regulate impulse control and

decision-making directly implicates the capacity to form mens rea and diminishes the degree of

culpability. For example, studies show that adolescents tend not to plan and therefore often get

caught up in unanticipated events and react in the moment, viewing as "accidental” what most

adults would have foreseen as likely consequences. See, e.g., Beyer, supra, at 27. Given that

children’s brains and decision-making capabilities are not as developed as adults, as current science,

psychology, and common sense demonstrate, then the application of an adult standard of mental

culpability to a child’s actions is fundamentally unjust.

Florida courts have held that the aggravated child abuse statute requires a finding of specific

intent. Jakubczak v. State, 425 So. 2d 187, 188 (Fla. 3d DCA 1983), overruled on other grounds,

Nicholson v. State, 600 So. 2d 1101, 1102 (Fla. 1992); see also Moakley v. State, 547 So. 2d 1246

(Fla. 5th DCA 1989) (reversing a conviction because there was no evidence that the defendant was

motivated by malice). In order to satisfy its burden of establishing mens rea, the state must prove

that the defendant “knowingly or willfully” abused a child, and in doing so caused great bodily

harm. § 827.03(2)(c). Hence, in order to satisfy the mens rea requirement, the state would have to

prove that Lionel had specific intent to commit the underlying felony of aggravated child abuse, or

in other words, that he “knowingly or willingly” abused Tiffany. However, given Lionel’s tender

age, the presumption of incapacity makes it difficult for the state to establish mens rea in a specific

52
intent crime. Unlike general intent crimes, aggravated child abuse requires a higher and more

particularized form of mens rea. Before proving state of mind, the state must first rebut the

presumption that Lionel was, in fact, incapable of forming the requisite level of intent to commit the

crime of aggravated child abuse.

53
 CONCLUSION

The aggravated child abuse statute that was at the heart of Lionel Tate’s murder conviction

was never intended to apply to children who hurt children. Civil child protection laws provide for

reporting, investigation, a statewide registry, and protective services for children who are injured by

parents or caregivers, while criminal child abuse laws protect children in different ways. Criminal

sanctions serve a range of punitive purposes: deterrence, incapacitation, rehabilitation and

retribution for the abuse of trust that an adult commits when he hurts a child. Clearly, criminal

child abuse laws were not aimed at twelve-year-olds like Lionel, who are presumed to lack the

capacity to form intent or the maturity to appreciate the consequences of their acts. These laws

were meant for adults who indeed might be deterred by potential criminal sanctions and who

deserve harsh punishment, in proportion to their abuse of trust, when they harm a child they are

obligated to protect. The application of criminal child abuse laws to Lionel’s conduct allowed the

prosecutor to bootstrap a fatal incident involving two children left to play without supervision into a

felony-murder. This abuse of the law compounds the tragic death of six-year-old Tiffany with the

injustice of sending twelve-year-old Lionel to prison for life without parole. The decision below

defeats rather than serves the goals of child protection in Florida. Amici respectfully urge the Court

to reverse and remand for a new trial, with instructions that the felony-murder doctrine and criminal

child abuse laws do not apply in the circumstances of this case.

54
Respectfully submitted,

__________________________________
Attorneys for Amici Curiae

BARBARA BENNETT WOODHOUSE

CHRISTOPHER SLOBOGIN
CLAUDIA WRIGHT*
SHERRIE RUSSELL-BROWN
University of Florida
Fredric C. Levin Coll. of Law
Center on Children and the Law
P.O. Box 117625
Gainesville, FL 32611-7625
(352) 392-2211 (phone)
*Local Counsel for Amici Curiae
Florida Bar No. 251569

STEVEN DRIZIN
Northwestern University
School of Law
Bluhm Legal Clinic
Children & Family Justice Ctr.
357 East Chicago Avenue
Chicago, IL 60611-3069
(312) 503-8576 (phone)

55
 CERTIFICATE OF SERVICE

I certify that a copy hereof has been furnished by overnight express delivery (Federal
Express) on this 2nd day of March 2001 to Deborah Resicgno, Esq., Office of the Attorney General,
1515 N. Flager Dr., Ste. 900, West Palm Beach, FL 33401, counsel for the State of Florida; and
Richard L. Rosenbaum, Esq., 350 East Las Olas Blvd., Ste. 1700, Las Olas Centre, Ft. Lauderdale,
FL 33301, counsel for appellant.

_____________________________
CLAUDIA WRIGHT
Attorney for Amici Curiae
University of Florida
Fredric C. Levin Coll. of Law
Center on Children and the Law
P.O. Box 117625
Gainesville, FL 32611-7625
(352) 392-2211 (phone)
*Local Counsel for Amici Curiae
Florida Bar No. 251569

CERTIFICATE OF COMPLIANCE

The undersigned counsel for Amici Curiae hereby certifies that the foregoing brief complies
with the font and page requirements of Fla. R. App. P. 9.210.

______________________________

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