Endangering the Welfare of a Child--Introduction
New Jersey has a hodge-podge of statutes related to endangering the welfare of a child. It starts with the New Jersey Code of Criminal Justice. The Code is contained in Title 2C of New Jersey statutes. The other child endangerment statutes are in Title 9. Title 9 is entitled “Children--Juvenile and Domestic Relations Courts.”
Laws in the two titles contain much overlap. And, as we discuss below, Title 9 offenses can be prosecuted under Title 2C. In fact, prosecution for some Title 9 provisions must be under Title 2C. But for many situations, flexibility exists in selection of a particular statute, even for a single well-defined act. As it turns out, the precise statute selected is important because that selection can enormously influence the consequences of a conviction.
Endangering the Welfare Under the New Jersey Code of Criminal Justice
The endangering provision in the New Jersey Code of Criminal Justice is N.J.S. 2C:24-4. N.J.S. 2C:24-4 defines “child” to mean any person under the age of eighteen. The statute then provides a laundry list of acts that constitute endangering. The severity of a conviction under that section often depends upon a number of factors. One of those factors is which particular provision in N.J.S. 2C:24-4 is involved. Another factor is whether or not the convicted individual is a person who had a legal duty to care for the child, or who had assumed responsibility for the care of the child. When N.J.S. 2C:24-4 makes that distinction, having that duty or responsibility will raise the severity of the crime by a degree. Thus if the act for “everyone else” was a third degree crime, being the parent, or having assumed the responsibility, will make the act a second degree crime.
Some specified acts are second degree crimes even when the actor is not a parent, or not someone who has a legal duty for care of the child. When those same acts are committed by someone who is the parent or who does have that legal duty, these acts then become first degree crimes, again depending on what particular act is involved. Some acts are fourth degree crimes regardless of the status of the actor.
Occasionally the issue in an endangering the welfare of a minor prosecution will hinge on the element of “assumed responsibility for the care of the child.” One need not be a parent, or even a legal guardian, for that duty to exist. For example, the defendant in State v. McInerney, 428 N.J. Super. 432 (App. Div., 2012) was a high school baseball coach. Coach McInerney developed a close relationship with various members of the team. Some of their events included out-of-state travel. Other events included personal weekend trips to see professional baseball games in Boston and Chicago. The court found those levels of contact sufficient to find that McInerney had indeed assumed responsibility for the care of the involved children.
On the other side of this very thin line was State of New Jersey v. Saad A. Saad, 461 N.J.Super. 517 (App.Div., 2019). Saad was a physician who took sexual liberties with minor patients under his care. In determining that Saad was not a person who had “assumed responsibility for the care of the child,” the court observed:
Seem complicated? It is. Suffice it to say, punishments for second degree crimes are much more severe than third and fourth degree crimes. First degree crimes are the most serious crimes defined in New Jersey's Code of Criminal Justice. To put this into perspective, other crimes of the first degree include murder, armed robbery, kidnapping, carjacking, and being leader of a narcotics trafficking network.
As indicated above, N.J.S. 2C:24-4 defines numerous acts that constitute endangering the welfare of a child. These acts include engaging in sexual conduct that would impair or debauch the morals of the child. They include causing or permitting the child to engage in a “prohibited sexual act.” The statute then lists ten specific situations that constitute prohibited sexual acts. Other prohibited activities include photographing the child engaging in a prohibited sexual act, or the simulation of such acts. Receiving such photography, including using a computer, is prohibited. These are materials often referred to as “child porn.”
N.J.S. 2C:24-4 also incorporates by reference specific provisions in Title 9. In that manner, endangering the welfare by acts defined in Title 9 can be prosecuted as either Title 9 offenses, or Title 2C offenses. Title 9 endangerings are fourth degree crimes. When prosecuted under Title 2C, that same endangering can become a second-, or even first, degree crime. It is the prosecutor who decides whether the crime will be prosecuted under Title 2C, or under Title 9.
Endangering the Welfare of a Child in New Jersey Under Title 9
Title 9 is a volume in New Jersey Statutes completely separate from the New Jersey Code of Criminal Justice. Although not in the Code of Criminal Justice, Title 9 nonetheless defines criminal offenses that deal with abuse, abandonment, cruelty, and neglect of children. N.J.S. 9:6-1 defines these terms. Abuse includes such things as disposing of custody of the child contrary to law, allowing the child to be employed in a dangerous position, habitual use of profanity in the hearing of the child, performing indecent or immoral acts in the presence of the child, and willful social isolation of the child. This list is only partial. N.J.S. 9:6-3 then goes on to specify that the acts of abuse, abandonment, cruelty, or neglect defined in N.J.S. 9:6-1 are fourth degree crimes. Neither N.J.S. 9:6-1 nor N.J.S. 9:6-3 defines who is a “child.”
The other statute of interest in Title 9 is N.J.S. 9:6-8.21. That statute consists only of definitions. Section “c” of N.J.S. 9:6-8.21 contains its own laundry list of definitions that make a child “abused or neglected.” N.J.S. 9:6-8.21 applies only to parents or guardians. But “parent or guardian” is defined very expansively to include teachers, or even volunteers responsible for the child's welfare. N.J.S. 9:6-8.21c defines “child” to mean a person under age eighteen.
As just indicated, N.J.S. 9:6-8.21 consists only of definitions. What it does, therefore, is provide specifications for a prosecution under N.J.S. 2C:24-4. To use an analogy, N.J.S. 9:6-8.21 is the ammunition, and N.J.S. 2C:24-4 is the cannon.
Endangering the Welfare--Final Thoughts
The information provided above is only a summary of New Jersey laws relating to child endangerment. And it is an incomplete summary at that. Repeating what we said above, New Jersey's law of endangering the welfare of a child is complicated. Its complicated nature makes having a lawyer knowledgeable and experienced in this area crucial for a person charged with endangering. Allan Marain is a skilled New Jersey lawyer with that knowledge and experience. If you have been charged, or may be charged, with endangering the welfare of a child, you should call him. Your call incurs no obligation on your part.