Withholding Necessities is an
Element of Criminal Mistreatment in Washington
The Washington Court of Appeals has held that a person who does not withhold "any of the basic necessities of life" from a child or dependent person cannot commit the crime of Criminal Mistreatment in the Second Degree. The decision came in State of Washington v. McGary, 93 P.3d 941 (2004). This decision brings that crime into line with Criminal Mistreatment in the First, Third, and Fourth Degrees.
The evidence against McGary was that she drove a car carrying her two young sons while she was extremely intoxicated. When she realized she was too drunk to drive on, she pulled over and stopped. She fell asleep at the wheel, with the engine running and a window partly open in freezing weather.
The State alleged this behavior created an imminent and substantial risk of death, as required for Criminal Mistreatment in the Second Degree.
The defense objected that that risk was only one of the elements of the crime. It argued that the crime also required that the defendant create that risk by withholding at least one of the basis necessities of life. The trial court disagreed and convicted McGary.
The court of appeals acknowledged that the phrasing of the code section defining the crime supported the trial court's decision. The court found, though, that the codified statement of intent supported the defense's interpretation, as did the presence of the same element in all three other degrees of Criminal Mistreatment. The court ruled the statute does require that the risk of death flow from the withholding of a basic necessity of life. It therefore reversed the conviction.
Copyright © 2004 David S. Marshall
