Instruction 6.230, Criminal Model Jury Instructions for Use in the District Court

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

WANTONLY OR RECKLESSLY PERMITTING

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

G.L. c. 265, § 13J(d) ¶3 & ¶4

The defendant is charged with being a person having care and

custody of a child under 14 years of age when the child received a

(substantial) bodily injury which the defendant wantonly or recklessly

permitted to occur.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following four things beyond a

reasonable doubt.

First: That the defendant had the care and custody of [the alleged

victim] ;

Second: That the [the alleged victim] suffered a (substantial) bodily

injury;

Third: That the defendant wantonly or recklessly permitted the

(substantial) bodily injury to occur; and

Fourth: That, on the date of the alleged offense, [the alleged victim]

was a child under 14 years of age.

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

In order to prove the first element, the Commonwealth must

prove that the defendant had care and custody of the [the alleged victim] .

Persons who have care and custody may include a parent, guardian,

employee of a home or institution, or any other person with

equivalent supervision or care of a child, whether the supervision is

temporary or permanent.

G.L. c. 265, § 13J(a)

In order to prove the second element, the Commonwealth

must prove that [the alleged victim] suffered a (substantial) bodily

injury.

Bodily Injury Under the law, a bodily injury is a substantial

impairment of the physical condition. It is an injury to any body

part that considerably or significantly compromises its usual

bodily function such as, but not limited to: (a burn) (a fracture of

any bone) (a subdural hematoma) (injury to any internal organ)

(any injury which occurs as a result of repeated harm to any

bodily function or organ, including human skin).

G.L. c. 265, § 13J(a); Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 489-90 (2018)

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

Substantial Bodily Injury Under the law, a substantial bodily

injury is one which results in (permanent disfigurement)

(protracted loss or impairment of a bodily function, limb or

organ) (a substantial risk of death).

Bodily Function Impairment of a bodily function

arises when a part or system of the body, other than

an organ or limb, is significantly impeded in its ability

to fulfil its role.

Limb Impairment of a limb occurs when, because

of significant damage to its structure, its capacity to

perform its usual function is compromised.

Organ Impairment of an organ occurs when

damage to the structure of the organ is significant

enough to compromise its ability to perform its

function in the victim’s body.

G.L. c. 265, § 13J(a); Commonwealth v. Scott, 464 Mass. 355, 359 (2013).

In order to prove the third element, the Commonwealth must

prove that the defendant wantonly or recklessly permitted the

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

(substantial) bodily injury to [the alleged victim] either by proving

that the defendant wantonly or recklessly permitted the (substantial)

bodily injury to [the alleged victim] or by proving that the defendant

wantonly or recklessly permitted another to commit an assault and

battery that caused (substantial) bodily injury to [the alleged victim] .

Wantonly or Recklessly Permitting To prove that the defendant

wantonly or recklessly permitted the (substantial) bodily injury, it is

not enough for the Commonwealth to prove that the defendant acted

negligently – that is, in a manner that a reasonably careful person

would not. It must be shown that the defendant’s actions went

beyond mere negligence and amounted to wanton or reckless

conduct. The defendant acted wantonly or recklessly if (he) (she)

knew or should have known that (his) (her) (actions were) (or) (failure

to act was) very likely to result in bodily harm to [the alleged victim] but

(he) (she) ran that risk and (went ahead anyway) (or) (failed to act

anyway).

It is not necessary for the Commonwealth to prove that the

defendant intended that [the alleged victim] be harmed or that (he)

(she) foresaw the harm that resulted. If the defendant actually

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

realized in advance that (his) (her) (actions were) (or) (failure to act

was) very likely to result in bodily harm to [the alleged victim] and

decided to run that risk, such conduct would be wanton or reckless.

But even if (he) (she) was not conscious of the danger that was

inherent in such (actions) (or) (failure to act), it is still wanton or

reckless conduct if a reasonable person, under the circumstances

that were known to the defendant, would have recognized that such

(actions were) (or) (failure to act was) very likely to result in bodily

harm to [the alleged victim] .

Wantonly or Recklessly Permitting Another to Commit Assault and Battery

To prove that the defendant wantonly or recklessly permitted

another to commit assault and battery on the [the alleged victim]

resulting in (substantial) bodily injury, the Commonwealth must prove

that the defendant’s wanton or reckless conduct permitted someone

other than the defendant to intentionally touch [the alleged victim] in a

way that was likely to cause harm and resulted in (substantial) bodily

injury. It is not enough for the Commonwealth to prove that the

defendant acted negligently – that is, in a manner that a reasonably

careful person would not. It must be shown that the defendant’s

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

actions went beyond mere negligence and amounted to wanton or

reckless conduct. The defendant acted wantonly or recklessly if (he)

(she) knew or should have known that (his) (her) (actions were) (or)

(failure to act was) very likely to result in bodily harm to [the alleged

victim] but (he) (she) ran that risk and (went ahead anyway) (or) (failed

to act anyway).

It is not necessary for the Commonwealth to prove that the

defendant intended that [the alleged victim] be harmed or that (he)

(she) foresaw the harm that resulted. If the defendant actually

realized in advance that (his) (her) (actions were) (or) (failure to act

was) very likely to result in bodily harm to [the alleged victim] and

decided to run that risk, such conduct would be wanton or reckless.

But even if (he) (she) was not conscious of the danger that was

inherent in such (actions) (or) (failure to act), it is still wanton or

reckless conduct if a reasonable person, under the circumstances

that were known to the defendant, would have recognized that such

(actions were) (or) (failure to act was) very likely to result in bodily

harm to [the alleged victim] .

Commonwealth v. Traylor, 472 Mass 260, 271 (2015) (“the statute [§ 13J] criminalizes

acts of omission in addition to acts of commission, and a defendant may be convicted

(SUBSTANTIAL) BODILY INJURY TO A CHILD UNDER 14

under the statute even in the absence of proof regarding precisely how the injuries to the

child occurred”) (internal citation omitted).

In order to prove the fourth element, the Commonwealth must

prove that, on the date of the alleged offense, [the alleged victim] was

under 14 years of age.