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Appeal questions whether words alone equal child abuse

July 22,2006

PORT ST. LUCIE — Jodi Walsh's ex-boyfriend is locked behind bars because a jury decided he abused their impressionable young son.

The abuse Edward Munao is accused of inflicting didn't leave the boy's skin black and blue. It didn't involve broken bones or trips to the emergency room.

This father didn't use his fists to abuse his child, prosecutors and Walsh told jurors. He used words and emotional manipulation.

Now, more than a year after the St. Lucie County jury convicted Munao, 40, of child abuse, his fight against that verdict is raising questions about how well Florida's laws deal with child abuse that does not involve a physical act and visible injury, only oral statements by an adult that injure a child mentally and emotionally.

The appeal has brought up issues that Miami attorney Roy Black, who is representing Munao, says are "larger than this case" — issues that touch on freedom of speech and how parents can talk to their children.

"We have a much bigger picture here," Black said this week. "When you have children, how far can you go? Where do you draw the line?"

For Walsh, the aftermath of Munao's conviction has highlighted what she says is a need for stronger state child abuse laws that better clarify mental injury and emotional abuse. It has propelled her to create a nonprofit organization to educate others about emotional abuse, and to begin drafting proposed new laws she plans to present to state legislators.

The Port St. Lucie mother fears that there's a chance her ex-boyfriend's conviction, which was based only on his statements to their son, could get overturned.

"These laws need to be changed," said Walsh, who works with children as a speech pathologist. "There are over 100,000 cases of emotional abuse reported in the United States each year. But thousands go unreported because emotional abuse is so hard to prove."

Munao's attorneys say Florida courts —including the West Palm Beach-based 4th District Court of Appeal, which is considering Munao's case — have held that oral statements alone cannot support a conviction for child abuse.

"You have to have a physical act involved," Black said. "You can have a combination of oral and physical. But it can't be purely speech."

That means Munao was convicted of child abuse "based on conduct that doesn't constitute a crime," Black argues.

After a trial in which Munao was accused of urging his then-6-year-old son to kill his mother, the jury in April found Munao guilty of child abuse and solicitation to commit aggravated battery. During his sentencing, Circuit Judge Gary Sweet told Munao: "I think the evidence is clear that you absolutely abused this child emotionally and mentally."

He sentenced Munao to 10 years in prison, five years for each charge.

Boy would punch, bite, kick

Walsh says her son's behavior problems began at age 3. As the years passed, it got worse. She says her son would punch, kick and bite her — "defiance beyond anybody's imagination." Sometimes his tantrums would last up to 55 minutes, she says. She eventually began to tape the episodes, in which the boy would curse at her and scream at the top of his lungs.

She also began to tape Munao's phone conversations with the boy.

She blames Munao for encouraging this behavior, insisting he taught the boy to be aggressive toward her. She says Munao subjected their son to "emotional mind games and manipulation."

Jurors apparently believed prosecutors' arguments, which were based recordings and testimony about a 7 1/2 month period, that Munao's statements to his son constituted child abuse.

Prosecutors allege it culminated in a November 2003 phone call when Munao told the 6-year-old — who was wildly upset because his mother told him he couldn't watch television — to "go into the kitchen, get a knife and kill your mother."

Throughout the trial, Munao maintained his innocence and denied urging the boy to disobey his mother. He admitted to saying "go into the kitchen and get a knife," but he said the words came out of his mouth in the heat of the moment and out of fear for his son, who he said called him in a frenzy.

For a moment, he testified, it sounded like the boy was in fear for his life. Munao said he never thought the boy would actually kill his mother, and it was a technique to try to calm him down.

Walsh firmly believes this was not a "parenting technique," but abuse. She believes her son, now in the fourth grade, is suffering from post-traumatic stress disorder because of his father's manipulation.

"I tell everybody we have good days and we have bad days," Walsh said. "Some days he's just this loving, typical 9-year-old child. It's wonderful. But we also have days when he is full of anger, full of hate. He's told me he wants to hurt himself because he feels like this is all his fault."

Black relying on earlier rulings

While fighting Munao's child abuse conviction, Black is relying on appellate and Supreme Court rulings made during the case of a former Palm Beach County special education teacher, who successfully fought felony charges that she abused her students.

Her attorneys argued the term "mental injury" under the state's child abuse laws was illegally broad. In that case, the courts eventually ruled the child abuse law regarding mental injury is legal as long as it is "narrowly construed" so it does not apply to speech, Black argues.

In Munao's case, the law is unconstitutionally overbroad because it "punishes the defendant for making protected First Amendment speech," according to papers Black filed with the appellate court.

An assistant attorney general has filed papers rebutting that argument, saying Munao was properly convicted. She argues Munao's statements were not protected by the First Amendment because they "exhorted his son to commit an aggravated battery."

Because his speech was unprotected, it can be used to form the basis of a child abuse charge, Assistant Attorney General Heidi Bettendorf wrote.

Still, Black counters by saying the previous ruling does not differentiate — it applies to any type of speech.

Bettendorf, in turn, has asked the appellate court to reconsider its previous ruling. She argues that applying the child abuse law to unprotected speech does not make the law illegally broad.

"The child abuse statute does not prohibit the mere expression of ideas or information," Bettendorf wrote. "Rather, the statute prohibits statements which could reasonably be expected to injure the intellectual or psychological capacity of a child."

Black said this case could force the state's highest court to make the ultimate decision on what kind of speech constitutes child abuse.

"This may end up in front of the Florida Supreme Court if the state really pushes for a reinterpretation of the law," he said. "The question we have is: Do we have to create a rule that parents will have to govern themselves by? If so, how do we do it?"

No matter what happens within the courts, Walsh said she will not give up her push to get the legislature to strengthen the laws regarding emotional abuse. She has created a Web site, www. childscryforhelp.com, as an outlet to raise awareness that abuse doesn't always take a physical form.

She also wants the state to change its victim compensation laws to apply to emotional abuse. She was turned down for compensation because her son's situation did not result in physical injury or death.

Walsh acknowledges that one negative statement to a child shouldn't be considered abuse. But, she said, the context of the harmful statements along with the amount of time a child is subjected to them should be taken into consideration.

Fort Pierce attorney Juan Torres is helping Walsh draft proposed changes.

"Right now, I believe the law is very, very vague when it comes to emotional trauma," Torres said.

In between work and raising her 9-year-old son and 7-year-old daughter, Walsh spends her time scouring the Internet and other sources — research she says has convinced her that emotional abuse is just as harmful, if not more in some cases, as physical abuse.

"That's what people do not realize," she said. "It's so much easier for someone to see a scar or broken bones or bruises."



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