Mother lives with her two girls (8 and 5) and boyfriend. Babysitter tells mother that eight year old made outcry that boyfriend was sexually assaulting her. Mother says she does not believe child and continues living with boyfriend.

Six weeks later, child makes outcry again to babysitter that she was recently molested. Babysitter informs CPS, cops are called. Boyfriend makes res gestae statement that mother "knew what was going on."

We are considering abandoning/endangering a child.

How would you charge this case?

Absolutely I would charge endangerment.

Our office sees more of these than I can stomach. The questions that I would look at: does the mom say it didn't happen because she's always with the children? (in that case, this is probably a situation where they all sleep in the same bed and the assaults happen with mom sleeping away right there, but she still knew with the outcry that something should have reported/changed arrangements/moved out).

Or is this one where the mom knows what's going on, but ignores it because it's less attention she has to give to the boyfriend? (leaves them home alone with him, especially when drunk, one of the girls is in a separate room and he goes in there at night). In those cases, I'm always tempted to try to get a co-party offense on the sexual assault charge, but I think it's tough to prove she had intent to assist in the offense.

Also, I would make sure you get CPS to ask the little girl why she told the babysitter and not her mom. It's possible she did tell mom, or that she will give you more insight into why she trusts the babysitter more than her own mother (big red flag, I think) and more evidence of mom's endangering the child.

The problem is that the boyfriend's res gestae statement is not admissible against the mother, and, in all likelihood, he will not be testifying against the mother. Then, all you have is the 8-year old who presumably told her mother what was happening on one occasion. I doubt a jury would convict if the mother looked into it and believed that it did not happen.

Agree with Ken. These are very difficult cases to have enough evidence on to overcome BRD.

This is one where all signs point to mother knowing what is going on, and letting it happen because boyfriend is supporting her. Mother was warned in March, then again in May, then another outcry was made in July. Mother says she didn't believe the child.

As for the res gestae statement, it seems admissible to me because it is an admission against interest by the speaker and not the result of any questioning by law enforcement. Thus, there should not be any Crawford issues.

Did your guy confess in more detail or only the res gestae? Either way, it's an admission that means your little 8 year old was telling the truth, is the most honest in the whole bunch, and had to fight very hard for her voice to be heard...and fight her own mother in the process. There is no way that this kid said something three times to another adult who repeated it to the mom and the mom never said anything to the child about not saying that again, or calling her a liar or some type of reaction.

If you are going to depend a felony sex assault on the word of an 8 year old girl, I think you can depend an endangerment charge on a very selfish mom on the same 8 year old girl.

If she left the kids alone with the dad, after she was aware of any outcries, maybe you could also allege abandonment with intent to return under 22.041(a) where you only have to show an unreasonable risk of harm, vs. the endangerment which has to be imminent danger.

That might put your mom between a rock and a hard place, because she might come in and say she NEVER, NEVER, NEVER leaves her girls home alone with him--attempting to disprove Count 1. And then the next question is...and why not? Because she knew he was dangerous and the babysitter had told her so...which leads you to Count 2--the endangerment.

I totally agree that BRD is tough to get to when you have only inferences on intent. Tough call, you should keep us informed on how this plays out.

Incidentally, we have a similar fact situation where mom won't plead to endangerment because she knows she will lose custody. She is going to lose custody anyway (she told the dad, who punished the girls for telling), but that is one more thing that will make it a harder case to get a plea on.