Ark. Code Ann. § 12-18-804 (2020)
Defenses and affirmative defenses
For any act or omission of child maltreatment that would be a criminal offense or an act of delinquency, any defense or affirmative defense, including the burden of proof regarding the affirmative defense, that would apply to the criminal offense or delinquent act is also cognizable in a child maltreatment proceeding with the exception of:
- A statute of limitation;
- Lack of capacity as a result of mental disease or defect under § 5-2-312; and
- Affirmative defenses under §§ 5-1-112 — 5-1-114.
History. Acts 2009, No. 749, § 1; 2011, No. 1143, § 20.
Amendments. The 2011 amendment, in the introductory language, inserted “including the burden of proof regarding the affirmative defense” and added “with the exception of” at the end; and added (1) through (3).
Case Notes
Consideration of Affirmative Defense.
Petitioner was properly placed on the Arkansas Child Maltreatment Central Registry; the administrative hearing was not untimely because the petitioner requested a continuance and the ensuing delay was attributable to him; moreover, the ALJ did not err by failing to consider evidence of an affirmative defense because the petitioner, at the age of eighteen, engaged in sexual intercourse with a girl who was fourteen, which was sexual abuse, and even though the child testified that she told the petitioner that she was sixteen years old, it was not sufficient to negate the finding of child maltreatment. Marrufo v. Ark. Dep't of Human Servs., 2013 Ark. 323, 429 S.W.3d 210 (2013).
Mental Capacity.
Father placed his mental capacity at issue by arguing that due to lack of sleep, stress, and other factors, his brain functioned differently than it would if it were not experiencing those unusual conditions, and he was unable to adequately supervise his child; the Child Maltreatment Act specifically excludes lack of capacity caused by mental disease or defect as an affirmative defense, and the administrative law judge's reference to the Act was not error under the circumstances. W.N. v. Ark. Dep't of Human Servs., 2018 Ark. App. 346, 552 S.W.3d 483 (2018).