OR.S.Ct. to review Crim Mistreatment I
This last week the Oregon Supreme Court granted review on two Criminal Mistreatment cases: State v. McCants and State v. Baker-Krofft, both out of Marion County. The most recent one, McCants, was a fairly strange decision in which you could sense that the Appellate Court knew it was opening a huge can of worms by essentially deciding that leaving small objects on the floor could be Criminal Mistreatment because of the choking hazard. Here's what I said about McCants at the time (notice that the court mentions the other case up for review no less than 3 times in discussing its new set of criteria):
Criminal Mistreatment I - withholding of necessary and adequate physical care
The Court oozes with regret in finding that a really filthy house and the presence of choking hazards is not a legally insufficient basis for Criminal Mistreatment I. Mindful that the "presence of choking hazards" part of the ruling could be used to prosecute 75% of the parents in the State, the Court sets out a nonexclusive set of criteria for determining adequate care:
- The nature of the harm that the condition presents to the dependent person. For example, a hazard may be lethal (e.g., a loaded firearm within easy reach of a toddler) or merely potentially injurious (e.g., broken glass on a floor on which a teenager might cut his or her foot). In Baker-Krofft, especially given the lack of smoke alarms and obstacles to escape, fire was a lethal hazard.
- The temporal immediacy of the harm. All other considerations being equal, the failure to address a condition that can, or will, cause harm immediately (e.g., the "present risk of fire" in Baker-Krofft, 230 Or App at 523 (emphasis added)) is more serious, and potentially culpable, than failure to address a condition that could, if not rectified in the interim, cause harm in the future.
- The likelihood of the potential harm to the dependent person actually being realized. Again, all other considerations being equal, the greater the likelihood that the harm will occur-i.e., ranging from speculative possibility to virtual certainty-the more serious, and potentially culpable, is the failure to address the potentially hazardous condition. Thus, in Dowty, there was some possibility, however remote, that one of the young children might grab the hammer or knife on the kitchen counter and do some harm to herself or her sibling, but, apparently, there was no proof that either had ever done such a thing or was, in fact, somehow likely to do so. See Dowty, 230 Or App at 611.
- The duration of the dependent person's exposure to the risk of harm. This consideration is not directly implicated in Baker-Krofft or Dowty-and may be a component of the likelihood of harm being realized. As an actuarial matter, in many, albeit not all, circumstances, prolonged exposure to risk enhances the likelihood of harm. Consider, for example, the differences between a toddler having ready access to a loaded firearm for five seconds, five minutes, and five hours.
- The nature and extent of remedial/supervisory measures to mitigate the potential harm. In Baker-Krofft, we emphasized the absence of working smoke alarms, 230 Or App at 524; conversely, in Dowty, we emphasized, variously, the existence of automatic shut-off sensors on the space heaters, the childproof caps on the prescription pill bottles, and, parenthetically, the parties' dispute regarding the use (or nonuse) of a baby gate to limit access to the knives and hammer and other common, but potentially dangerous, objects in the kitchen, 230 Or App at 610-11. Similarly, presentation, by way of defense, of evidence of parents' efforts to instruct and warn their children regarding risks in the home could be probative of this consideration.