Today, according to media reports, Mel Gibson will enter a plea of guilty or no contest to a misdemeanor charge of battery that the L.A. County D.A.'s office will file against him involving the alleged victim, Oksana Grigorieva. Those same reports suggest his plea is the result of a deal in which the D.A.'s office will recommend probation rather than jail time in exchange for Gibson's plea.
Oksana's position was that she suffered a concussion and two broken veneers on her teeth as a result of Gibson's violence against her.
Gibson argued in a filing in the family court proceeding that "I slapped Oksana one time with an open hand in an attempt to bring her back to reality. I did not slap her hard, I was just trying to shock her so that she would stop screaming, continuing shaking Lucia back and forth" setting up a possible argument of defense of their baby Lucia. Reports also suggest that Oksana's 13 year old son (whose father is Timothy Dalton) was also a witness to the violence that took place.
Although in my opinion it is doubtful that a jury would have bought Gibson's defense, the fact that Gibson admits that baby Lucia was being held at the time that Oksana was struck by Gibson does raise the important issue of which charges a prosecutor could have filed against a batterer who inflicts violence against a spouse, a cohabitant or an intimate partner when a child is present and can see and/or hear the violence inflicted on their loved one.
If Oksana was holding their infant when she was struck, depending on the facts, Gibson might also have been charged with child endangerment or child abuse, which could be prosecuted as either a felony or a misdemeanor.
Often, however, prosecutors and courts have read the law to require circumstances that involve great bodily harm or death or unjustifiable mental suffering by the child, in order for such charges to be filed. Sometimes prosecutors feel that they cannot prove these elements beyond a reasonable doubt and therefore they do not prosecute under these statutes, e.g. how does one prove unjustifiable mental suffering by an infant who hears their mother being battered?
I think it is long overdue to change the law to more fully take into account that when an infant or child sees or hears an act of violence against their loved one, that they too are victims. It is time to make the law tougher on batterers in these situations and more protective of children.
There is often both a short-term and long-term emotional and sometimes physical impact on the child who witnesses such violence. A child may feel guilty for not intervening to protect their mother or be placed at risk of harm if they do intervene. An infant may hear and feel the violence inflicted on their parent and the infant's feelings of trust and security may be irreparably harmed.
I propose that child abuse statutes be amended to eliminate the need to prove unjustified mental suffering of a child victim or even unjustified physical harm or pain to a child.
If a battery can be proven and if it can also be proven that infants and/or children saw or heard the act of violence, then I suggest that those facts should be sufficient to enhance the sentence of a batterer and under those circumstances, a sentence of mandatory time in jail should be imposed.
This would send a message to batterers that they are not only being held accountable for their criminal acts against another adult, but by battering the adult victim, they have also created child victims (some of whom may be their own children).
We should educate, counsel and punish abusers for the physical and emotional damage that they inflict on the adult victim and the innocent children who find themselves through no fault of their own in the "zone of danger."
The cycle of violence must be broken and we must intervene with serious legal consequences early in the process, rather than waiting until it is too late to protect the victims.
Children have no voice and no vote, but they deserve protection.
If the system cannot adequately punish Mel Gibson and hold him accountable for all of the harm that he has inflicted, how can we expect protection and accountability for other children who are witnesses to violence?
The time for action is now.
Attorney at Law
March 11, 2011