Battery on a Minor by the Mother's Boyfriend

[sonic0627]

My question involves criminal law for the state of: Indiana

What should I expect, will he be charged with battery on a minor?

So my son (who is 9 with ADHD, ODD and special needs but knows right from wrong and can explain situations well and in detail ) and I were at my NOW ex boyfriend's house. (We have been dating for 3 years and he knows my son has special needs and my ex and I weren't living together) My ex and I were talking and my son was trying to play pokemon go on my phone. Well I forgot to connect to the wifi and so my son sat down next to me and nicely interrupted me to tell me that the phone wasn't connected. My ex (who is NOT my son's dad and an active duty Marine) approached my son without a word, grabbed him forcefully by his ear, and smacked him in the face. I flipped out on my ex (just yelled at him) and demanded an explanation as to why he struck my child. He wouldn't give me an answer and so my son and I left right away while he cried in pain. I never gave my ex permission to hit my son. My son was scarred and didn't want to talk to the police at the time because it was late but the next day I filed a report with the police because my son had a nice bruise where my ex smacked him.

My ex admitted to grabbing my son by his ear but not smacking him and wasn't arrested. That next morning the cop took photos of my son but didn't ask him any questions. The cop told me I would hear from juvenile detectives and cps but after a week only cps got a hold of me and they also took photos and questioned my son which he told cps worker what happened and even showed the cps worker which ear my ex grabbed and the side he hit him. The next day I called the prosecutor's office and they told me they had the case already in their office which I thought was weird since no one but cps talked to my son and after talking to the cps worker he is having issues getting a hold of the cops to get their photos and report. I called the people's advocate and she told me she looked at the case and that the prosecutor that is assigned to the case would be out for a week. I informed her that my ex would be going back to fleet in about a month and so she is going to try to push it through so they don't have to get a warrant for him if they decide to press charges. She was shocked that no one but cps has talked to my son and she said she would try to schedule an interview with him. I know in the state of Indiana battery on a minor (under the age of 14) is a level 6 felony but can be dropped to a A misdemeanor since my ex has no other priors.

I just think its weird how this is being handled and I don't know what to expect. I want charges to be pressed no one hits my son!

[cdwjava]

It is only a felony if he inflicts "serious bodily injury." Redness to the face is not going to qualify. I suspect this will be simply battery at this point and that appears to be punishable by no more than 6 months in jail and up to $1,000 in fines.

Jail time is unlikely if filed. Probation and a fine is probably the most can be expected. Of course, he may have another spin on the events and a prosecutor and the court may see this as discipline and not treat it as a battery. I suspect that he may well have a shot at a plea deal to enter into diversion in some way to keep it off of his record ... provided he wants to remain in the Marines.

Understand that since this BF does not appear to live with you, it's not likely to be an issue of child abuse since your BF is not responsible for the child. But, ultimately it is up to the prosecutor to decide if charges should be pursued and what they might be.

[Dogmatique]

Well, you won't decide whether or not charges are pressed since that's not your decision.

The situation may not be as clear-cut to the DA's office as it seems to you; there's no guarantee that this will go any further at all.

[sonic0627]

how can it be discipline when its not his child to discipline....that doesn't make any sense

Batteries that cause injury to certain protected victims may be punished as a felony or a misdemeanor, as explained below. A battery that causes mere bodily injury (not "serious" physical injury), or that causes no injury, is a misdemeanor. For more information on these crimes, see Indiana Battery Laws.

(Ind. Code Ann. § 35-42-2-1.)

Battery Causing Bodily Injury Against Protected Victims

Indiana’s laws also punish more severely any battery that causes bodily injury (any injury, including pain) when the victim is:

a police officer, community policing volunteer, correctional officer or employee, firefighter, health care provider, school employee, judicial officer, or employee of the department of child services, and is engaged in official or job duties
a child under the age of 14 years and the defendant is 18 years or older
a family or household member (spouses, people who have dated, people related by blood, marriage and adoption, people who have children together, guardians, wards, custodians, and foster children), and the defendant is over the age of 18 and committed the offense in the presence of a child 16 years old or younger, knowing that the child was present and might be able to observe the offense
mentally or physically disabled and the defendant is a person who takes care of the victim
a pregnant woman and the defendant knows of the pregnancy, or
an endangered adult.
Endangered adults are unable to care for themselves or manage their property because of mental illness, intellectual disability, addiction, dementia, or other physical or mental incapacity.

Indiana law also punishes more severely battery causing bodily injury when the defendant has previously been convicted of battery against the same victim.

(Ind. Code Ann. §§ 12-10-3-2, 35-31.5-2-128, 35-42-2-1.)

[cdwjava]

how can it be discipline when its not his child to discipline....that doesn't make any sense

I'm not reading all the case law and statutes for all the associated laws in your state, but in mine that is how abuse laws tend to be interpreted. Your state might be different, but, merely being a minor does not always make the offense child abuse of some kind in other states.

And, yeah, I may have read the section wrong as I interpreted the section to imply that moderate or serious injury was required. (That's the problem with trying to interpret statues in other states ... my bad.)

But, again, the prosecutor may see this as discipline and not worthy of a felony charge. YOU don't have any say in the charges, that is the decision of the of the prosecutor and the prosecutor may not see a slap to a child's face worthy of prison time. In fact, I will wager he won't. At worst, I see a plea to a misdemeanor or even diversion if any charges are filed at all.

In the end, all you can do is stay in communication with the police, CPS, and the prosecutor and see what might happen. Maybe charges will be filed, maybe they won't. Maybe they will be a felony (if at all), maybe not. There is no way you can compel them to file charges. All you can do is maintain the lines of communication. Personally, I would see a felony as being overkill ... but, then, I was raised in an era when if you got out of line your neighbors felt comfortable enough to discipline you and the police were never involved.

[cbg]

It isn't up to you. There is nothing you can do or say and no law you can invoke that will force the DA to press charges. It is the decision of the DA and no one else.