Instruction 6.240, Criminal Model Jury Instructions for Use in the District Court

AND BATTERY ON A CHILD UNDER 14 CAUSING BODILY INJURY

WANTONLY OR RECKLESSLY PERMITTING ANOTHER

TO COMMIT AN ASSAULT AND BATTERY

ON A CHILD UNDER 14 CAUSING BODILY INJURY

G.L. c. 265, § 13J(b ¶ 3) (second part)

The defendant is charged under G.L. c. 265, § 13J, with being a

person who, while having care and custody of a child under 14 years of

age, wantonly or recklessly permitted another to cause bodily injury to that

child by touching the child without right to do so.

In order to prove the defendant guilty of having committed this

offense, the Commonwealth must prove four things beyond a reasonable

doubt:

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

Second: That [the alleged victim] was a person under 14 years of age;

Third: That [the alleged victim] suffered bodily injury; and

Fourth: That the defendant wantonly or recklessly permitted another

to cause injury to [the alleged victim] by touching him (her) without right to do

so.

To prove the first element, the Commonwealth must prove the

defendant had care and custody of [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 temporary or permanent.

To prove the second element, the Commonwealth must prove

[the alleged victim] was a child who had not reached his (her) fourteenth

birthday.

To prove the third element, (as I previously explained) the

Commonwealth must prove that [the alleged victim] suffered a bodily injury.

Under the law, a bodily injury is a substantial impairment of the physical

condition including:

(a burn)

(a fracture of any bone)

(a subdural hematoma)1

1 Note: Generally speaking, a subdural hematoma refers to bleeding on the brain.

(any injury to any internal organ)

(any injury which occurs as the result of repeated harm to any bodily

function or organ including human skin)

AND BATTERY ON A CHILD UNDER 14 CAUSING BODILY INJURY

(any physical condition which substantially imperils a child’s health

or welfare).

To prove the fourth element, the Commonwealth must prove that the

defendant acted wantonly or recklessly. 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

recklessness. The defendant acted recklessly if he (she) knew, or should

have known, that his (her) [actions were] [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] [failed to act anyway].

It is not necessary 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) conduct was very likely to result

in bodily injury to [the alleged victim] and decided to run that risk, such conduct

would of course be reckless. But even if he (she) was not conscious of the

serious danger that was inherent in such conduct, it is still reckless

conduct if a reasonable person, under the circumstances as they were

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

AND BATTERY ON A CHILD UNDER 14 CAUSING BODILY INJURY

dangerous that it was very likely that they would result in bodily harm to

[the alleged victim] .

G.L. c. 265, § 15A(b). Commonwealth v. Ford, 424 Mass. 709, 711, 677 N.E.2d 1149, 1151 (1997)

(the recklessness branch of assault and battery with a dangerous weapon requires proof of an

“intentional com m ission of a wanton or reckless act (som ething m ore than gross negligence) causing

physical or bodily injury to another” by m eans of a dangerous weapon).