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If the child being watched (9-10 years old) by a nanny frequently physically attacks the nanny, sometimes causing severe pain, can the nanny take any form of legal action? The nanny in question is a fully legal citizen of United States.

  • Does the child have a history of attacking nanny and have you informed the nanny of that? – Viktor Nov 7 '15 at 20:57
  • gov.uk/age-of-criminal-responsibility : In the UK, a physical attack is assault, and a child at age 10 can be criminally responsible. – gnasher729 Nov 8 '15 at 0:34
  • In the US, assault and battery are generally controlled by state statute. What state is the nanny in? – phoog Nov 8 '15 at 6:01
  • She is in New York – Jenna Maiz Nov 8 '15 at 15:30
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tl;dr

The nanny is in a difficult situation. Penal charges are probably a long shot, and further difficulty arises if the nanny is acting in loco parentis (and therefore has assumed certain responsibilities). A more suitable option might be an employment contract action based on unsuitable work conditions. You'd need to consult a labor attorney for more specific guidance.

Background

The question didn't detail the type of physical abuse, and a listing of related NY penal code sections can be found here (...NY assault and battery is a little different than in other states as discussed in an answer to this question). However, if we consider something like third degree assault, it is governed by N.Y. Pen. Law § 120.00.

A person is guilty of assault in the third degree when:

  1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

  2. He recklessly causes physical injury to another person; or

  3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Assault in the third degree is a class A misdemeanor.

The trouble is that infancy is a defense, as discussed in N.Y. Pen. Law § 30.00:

1. Except as provided in subdivision two of this section, a person less than sixteen years old is not criminally responsible for conduct.

2. A person thirteen, fourteen or fifteen years of age is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible or for such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law;  and a person fourteen or fifteen years of age is criminally responsible for acts constituting the crimes defined in section 135.25 (kidnapping in the first degree);  150.20 (arson in the first degree);  subdivisions one and two of section 120.10 (assault in the first degree);  125.20 (manslaughter in the first degree);  subdivisions one and two of section 130.35 (rape in the first degree);  subdivisions one and two of section 130.50 (criminal sexual act in the first degree);  130.70 (aggravated sexual abuse in the first degree);  140.30 (burglary in the first degree);  subdivision one of section 140.25 (burglary in the second degree);  150.15 (arson in the second degree);  160.15 (robbery in the first degree);  subdivision two of section 160.10 (robbery in the second degree) of this chapter;   or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter;  or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree, or for such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law.

3. In any prosecution for an offense, lack of criminal responsibility by reason of infancy, as defined in this section, is a defense.

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