Definition and Classification: Neglect of persons under care
Das Neglect of persons under care is a criminal offense under German criminal law and concerns the breach of the duty of care or custody towards persons who have been entrusted to another. This represents a form of crime against life and physical integrity and is specifically designed to protect vulnerable members of society, such as children, dependent individuals, and adults in need of assistance.
Legal Basis
Criminal offense in accordance with § 225 of the German Criminal Code
The statutory basis can be found in § 225 of the German Criminal Code (StGB) under the heading ‘Abuse of Persons under Care’. The offense covers both active abuse and passive neglect through the failure to provide necessary care or protection. Neglect is explicitly defined as a criminal omission offense in this context.Excerpt from § 225 para. 1 German Criminal Code (StGB) (in part):Anyone who torments, brutally abuses or by maliciously neglecting their duty of care or custody harms a person under eighteen years of age or a defenseless person due to infirmity or illness, who is under their care or custody, shall be punished.
Scope of Legal Protection
Through § 225 StGB, the legislator especially protects:
- physical well-being (life and limb)
- mental or emotional welfare
- development opportunities of those in need of protection
Elements of the Offense
Persons under Protection
According to the legal text, the following are particularly considered persons under protection:
- Minors (under 18 years of age)
- Persons who are defenseless due to infirmity or illness
The status as a person under care derives from a special relationship of dependency or trust, for example:
- Parent-child relationship
- Care relationships
- Educational relationships (e.g. dormitory directors, teachers with supervised children)
- Supervisory relationships in family or institutional settings
Potential Offenders
Suspects can be those who have a legal or actual duty of care or custody for the affected person. Such obligations may arise from law, contract, or factual assumption of responsibility (e.g. by care or supervision).
Commission of the Offense: Malicious Neglect
Neglect in the sense of § 225 StGB means the culpable failure to meet fundamental standards of care and protection, whereby the element ‘maliciously’ characterizes particularly blameworthy behavior. This regularly exists when the failure to act is due to selfish, base motives, such as indifference, malice, or laziness, and considerably endangers the well-being of the person under care.
Distinction from Other Forms of Neglect
Not every neglect constitutes a criminal offense. It is required that the neglect occurs in such a way that it actually impairs the physical or emotional well-being of the person under care. Minor negligence or temporary omissions do not generally fall under the criminal offense.
Typical Case Scenarios
Typical practical cases include, for example:
- Persistent failure to provide necessary nutrition (malnutrition or undernutrition)
- Omission of medically necessary care
- Insufficient hygiene measures
- Neglect of supervision, leading to dangers for the child (e.g. risk of accident due to being left unsupervised)
Relation to Other Criminal Offenses
Distinction from abuse of persons under care
§ 225 StGB includes not only neglect but also active abuse. Neglect differs from this in being an omission.
Concurrence
The offense often overlaps with other offenses such as bodily injury offenses (§§ 223 et seq. StGB), and in the event of a fatal outcome, also with homicide offenses (§§ 212 et seq. StGB).
If neglect leads to serious health damage or the death of the person under care, qualified or result-based offenses with higher penalties may apply.
Penalty Range and Legal Consequences
Threat of Penalty
For malicious neglect of persons under care, the law provides for a prison sentence of six months to ten years. In less serious cases, a prison sentence of three months to five years is foreseen.
Especially Serious Cases
If neglect results in serious consequences such as severe health damage or the death of the person under care (§ 225 para. 3 and 4 StGB), the legal penalty ranges increase accordingly.
Consequences in Addition to Criminal Sanctions
In addition to criminal prosecution, consequences under family law, guardianship law, or supervisory law may arise, including withdrawal of custody or care permits, or disciplinary measures in professional contexts.
Procedural Aspects
Reporting and Criminal Prosecution
Neglect of persons under care is a so-called public prosecution offense; authorities are obligated to take action when they become aware of it. Investigations may be initiated by reports from the social environment, doctors, schools, or social agencies.
Problems with Evidence
Challenges in providing evidence primarily arise in determining whether neglect constituting a breach of duty actually occurred, whether the perpetrator was aware of the danger, and whether they accepted it knowingly.
Significance and Practical Relevance
The criminal offense of neglecting persons under care serves to provide comprehensive protection to defenseless and dependent individuals. In practice, the offense is of high importance in child protection and in the care of vulnerable adults. Courts assess each case carefully with regard to the individual duty of care and its actual exercise or neglect.
Further Legal Provisions and Related Norms
- § 171 StGB – Breach of Duty of Care or Education
- § 221 StGB – Abandonment
- §§ 223 et seq. StGB – Bodily Harm
- § 212 StGB – Manslaughter (in case of death)
Summary
Neglect of persons under care under § 225 StGB constitutes a serious breach of duty towards individuals who require special protection. The provision especially protects minors and defenseless adults from dangers resulting from insufficient care. Criminal liability requires that the neglect is malicious and considerably damages the well-being of the person under care. The legislator attaches great importance to the protection of this group of people and therefore provides for strict sanctions.
Frequently Asked Questions
What penalties can be imposed for neglect of persons under care?
Neglect of persons under care is regulated in Germany under § 225 of the German Criminal Code (StGB). Anyone who exposes a person entrusted to them for upbringing, care, or custody to the risk of significant harm to their physical or emotional development makes themselves liable to prosecution. The minimum penalty is six months’ imprisonment, while the maximum can be up to ten years, especially if severe health damage is caused or the victim dies as a result of the neglect. In less serious cases, the court can reduce the penalty to three months to five years’ imprisonment. In addition to criminal sanctions, there may be occupational or family law consequences, such as withdrawal of custody or a professional ban in educational or care professions.
Who is considered a person under care in the legal sense?
Persons under care are those who, due to their age, state of health, or a relationship of trust, rely on the care of another. Legally, this especially includes children, adolescents, and adults in need of assistance such as the elderly or disabled individuals. The status is usually based on a legal (e.g., parent-child relationship), contractual (e.g., guardian-caretaker), or actual relationship of dependency. The person concerned must have actually been under the care or supervision of the perpetrator during the alleged act, which must be examined in each individual case.
When does neglect constitute a criminal offense?
Neglect becomes a criminal offense when the caregiver grossly breaches their duties and this leads to a concrete endangerment of the physical or psychological development of the person under care. Not every act of carelessness suffices; rather, the neglect must be substantial, that is, the act or omission must objectively be capable of causing significant danger (e.g. malnutrition, lack of medical care, persistent neglect, use of violence). The risk must actually arise, although actual harm is not necessary. Usually, negligence is not sufficient; intent or conditional intent is required.
Who can be considered as a perpetrator?
Anyone who has special legal obligations for the well-being of the person under care can be a suspect. These include parents, guardians, caregivers, educators, teachers, institutional staff, care workers, or caring relatives. Responsibility may arise from family ties, contractual agreements, professional duties, or other statutory rules. Shared responsibility can also apply if several people are responsible for care and none intervene despite being aware of the threat.
What role does the child’s welfare play in criminal proceedings?
In criminal proceedings, the court regularly examines to what extent an endangerment of the child’s welfare, or the welfare of another person under care, can be objectively established. Experts, such as child and adolescent psychiatrists or physicians, are often consulted to determine whether the neglect had significant impacts on health and development. The assessment of the child’s welfare is decisive for the gravity of the offense and for sentencing. It is particularly examined how serious the consequences of the neglect were and whether permanent damage occurred.
Can there be civil liability in addition to criminal liability?
Yes, in addition to criminal prosecution, the perpetrator may also be held civilly liable, for example, for damages or compensation for pain and suffering under § 823 of the German Civil Code (BGB). Victims, especially the affected person under care or their legal representatives, may claim compensation for both material and immaterial damages resulting from the neglect. The civil court independently examines, irrespective of the criminal proceedings, whether duties of care and supervision were breached and to what extent this justifies claims.
What is the significance of the mandatory reporting obligation in cases of suspected neglect?
According to § 8a of the Social Code Book VIII, certain professionals (e.g., educators, teachers, social workers) have a duty to report if there are concrete indications of a threat to a child’s welfare. In cases of neglect, they must inform the youth welfare office and, if necessary, initiate further measures. Breaching this obligation can have disciplinary and employment-related consequences, but can also lead to a more severe sentence if failure to report allows a situation threatening a child’s welfare to persist or worsen.
