Update: Mom found guilty of cruelty for belt-whipping 5-year-old to be sentenced Jan. 29

tchitwood@ledger-enquirer.comJanuary 15, 2013 

Now that a jury has found her guilty of felony child cruelty and misdemeanor battery for bruising her then-5-year-old son by whipping him with a belt, Jessica Conaway must wait until Jan. 29 to learn her fate.

Muscogee Superior Court Judge William Rumer delayed her sentencing Wedneday after prosecutor LaRae Moore sought jail time for Conaway and defense attorney Moffett Flournoy asked for probation, noting Conaway spent a month in jail when first arrested in June 2011.

Her trial this week has sparked debate outside the courtroom on whether she was justified in whipping the boy for twice kicking a teacher and later slapping another boy on a playground. Conaway said she had tried other disciplinary measures such as taking away the boy’s toys and giving him “time out,” but they weren’t working.

The jury of two men and eight women deliberated just an hour before finding Conaway, 28, guilty of first-degree child cruelty, for which the penalty ranges 5 to 20 years in prison, and battery with physical harm, a misdemeanor with the maximum of up to a year in jail.

The verdict surprised attorneys who expected the jury to find her not guilty or to convict her either on the felony or the misdemeanor, but not both charges.

The lawyers focused their closing arguments on the elements required for a conviction on the felony for which she was arrested and tried. The misdemeanor was an option offered the jury before deliberations.

The applicable section of the Georgia law on the felony says: “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”

Flournoy argued Conaway’s whipping the boy had no malicious intent, and Moore showed no evidence the child suffered “excessive” pain. Georgia allows parents to use “reasonable” corporal punishment to correct misbehavior, and Conaway had sufficient reason to spank her son — once on May 17, 2011, when for a second time he was kicked out of school for kicking a teacher’s aide, and again two days later when she saw him strike another child, Flournoy said.

“This child got in serious, serious trouble,” he said. “You don’t get suspended from school for nothing.... She had very good and valid reasons for punishing him.”

That the mother was angry at her son did not constitute malicious intent, he said: “Being angry isn’t malice.”

Conaway did not intend to bruise the boy, but she was six months’ pregnant and he kept trying to twist away as she held his arm, so she could not hold him still, Flournoy said. Unlike spanking him with the flat of her hand, she could not stop the belt’s momentum, so as the boy turned, she hit him not only on the buttocks, but also the front of his legs, his abdomen, his lower back and his arms, the attorney said.

Each time she whipped him, the boy was wearing a T-shirt and gym shorts, Flournoy noted: “It’s not like he was wearing blue jeans or something that gave him a little more protection.”

Flournoy also pointed out that in a video the boy’s father shot after the spanking, the child is smiling and laughing, not wincing in pain.

He said the case was an example of the government intruding into family affairs, and that’s what society today has sunk to: “A mother’s not even allowed to spank her child without fear of going to jail.”

Moore countered the boy had not just a bruise or two, but multiple marks, some of which were still red and swollen when a police officer saw them on May 21.

If friends saw an adult woman so bruised, they would not shrug it off, she argued as she brandished photos of the boy’s injuries and asked, “Who walks around with this stuff on their body? ... Is this shocking to see on an adult? Absolutely.”

She also referenced the discussion of corporal punishment the case was provoking, saying the question was not whether corporal punishment is acceptable. Under the law, such punishment is not “reasonable” if it causes extensive, lingering injury. Its purpose should be to correct misbehavior, she said: “It should never be to hurt.”

A child at age 5 is defenseless, and lacks the reason and restraint expected of adults, who must gauge the potential harm of letting their emotions rule their actions, Moore added. Adults are “bigger, stronger, wiser,” she said, and parents must keep that in mind: “At a point in time an adult is angry, you’ve got to let it go.”

She noted testimony showed the boy had been diagnosed with attention deficit hyperactivity disorder, and his mother had been bothered by his misbehavior for two years. Misbehavior isn’t a character flaw a parent can beat out of a child that age, she argued, asking, “Is this what our society has boiled down to? ... You can beat your child as much as you want to?”

A clear line must be drawn between what’s reasonable discipline and what’s abuse, she told the jury: “I’m asking you to draw that line.”

After the jury returned its verdict, Rumer initiated the trial’s penalty phase, asking recommendations from the attorneys. Moore wanted Conaway to get “some” time in jail, though she did not say how much. Flournoy wanted probation.

Among those testifying to the lingering effects of the boy’s injuries was paternal grandmother Toni Webb, who said her grandson lives in fear of another beating, and when admonished in school starts to cry and repeat “I’m going to die. I’m going to die.”

The father, Mtina Motley, said at home his son falls on the floor crying when he thinks he’s in trouble, even if he’s not.

Born June 4, 2005, the boy now is 7 years old. Married in 2003, his parents divorced in 2009. Conaway had custody of her son until Motley saw the bruises after picking the child up for a weekend visit on May 20, 2011. He called police from Webb’s home the next day.

Conaway still has visitation rights, and today remains free on $5,000 bond. She and her boyfriend now have a 1-year-old daughter.

Asked why she would seek jail time for the mother of a child that young, Moore said after the trial: “I’m just bothered by her refusal to accept responsibility.” Conaway showed no remorse on the witness stand, Moore said.

Before the trial, she offered the defense a plea bargain of seven years’ probation, if Conaway would plead guilty to the felony, she said. She later told the defense she would accept five years’ probation, she said.

Flournoy said Conaway refused to plead guilty to a charge of having whipped her son maliciously.

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