Establishes the crimes of endangering the welfare of a child in the first and second degrees, a class E felony and a class A misdemeanor, respectively

Section two of the bill reclassifies the existing crime of Endangering the Welfare of a Child, under Penal Law Section 260.10, and designates it as Endangering the Welfare of a Child in the second degree and adds a new subdivision 3 which makes it a crime to commit an act of violence against another person by a parent or person legally responsible for the care and custody of the child, in front of such child.

Section three of the bill renumbers the existing Penal Law section 260.11 as 260.12.

Section four of the bill adds a new section 260.11 creating the crime of Endangering the Welfare of a Child in the first degree. Subdivision one will penalize an individual who acts in a manner likely to be injurious to the physical, mental, emotional or moral welfare of a child less than 13 years old. Subdivision two will penalize an individual who commits Endangering the Welfare of a Child in the second degree where the child involved suffers a physical injury, serious physical injury or death. Subdivision three will penalize an individual who commits Endangering the Welfare of a Child in the Second Degree where the person committing the offense has previously been convicted of one of an enumerated list of offenses. Endangering the Welfare of a Child in the first degree is a class E felony.

Section five of the bill amends Penal Law section 260.15, which relates to Endangering the Welfare of a Child defenses, to now include a reference to both Endangering the Welfare of a Child in the second and first degree.

Section six of the bill provides that it takes effect on the first of November following enactment.

Existing law

Penal Law section 260.10, Endangering the Welfare of a Child, is a class A misdemeanor and punishes a person who acts in a manner likely to be injurious to the physical, mental, emotional or moral welfare of a child less than 17 years old, or is a parent or guardian who fails or refuses to exercise reasonable control to prevent the child from becoming an abused, neglected child or a juvenile delinquent or person in need of supervision.

Statement in support

Child abuse can be committed by a stranger or a family member and it occurs in all environments, including the home, schools, churches, mentoring organizations and day care centers. Child abuse can be physical, mental, emotional or even sexual. In many ways, it is the most heinous crime faced by society because it is perpetrated on the most defenseless segment of our population, often by the very people who should be protecting them. These young victims may suffer in silence, frequently over a period of time, due to fear of retaliation, confusion or embarrassment and guilt over the attacks. The physical and emotional harm that these children endure causes scars that can not easily be healed.

A recent study by the United States Department of Health and Human Services found that in 2002 1,400 children died from abuse or neglect nationally -- a rate of 1.98 per 100,000 children. This rate has increased each year since 2000. In New York State, 68 children died from abuse or neglect, a rate of 1.47 per 100,000 children. In New York State in 2002, there were 155,678 reports of child abuse and neglect, and 79,049 of these incidents were substantiated for abuse or neglect. The large majority of the victims in the substantiated incidents experienced neglect -- 13% of the victims were physically abused (over 10,000 cases) and 4% of the victims were sexually abused (over 3,000 cases). Nationally, it is estimated that for 2002, counting local and federal funds, states spent at least $22,2 billion dollars on child welfare activities.

The law has long recognized the need to protect children through the Endangering the Welfare of a child statute. In recent years highly publicized cases have focused attention on the unfortunate reality that all too often the abuse is extremely cruel or heinous in character, and yet lacks a manifest physical injury. For example, children in this state have been locked in closets, starved, scalded, forced to eat their own feces and yet this conduct has only resulted in the perpetrator being punished as a misdemeanor. The law should be amended to recognize that certain behavior, which may not be able to be prosecuted as a felony assault or a homicide offense, nonetheless should be punished at a felony level. The bill creates a new first degree class E felony endangering statute which will appropriately penalize these individuals.

In 1996, Governor Pataki appointed the Commission on Domestic Violence Fatalities and charged them with the responsibility of investigating select domestic violence fatalities and recommending preventive and protective strategies, guidelines, and legislation to reduce the incidence of domestic violence. Among the recommendations made by the Commission in its final report was a call to amend the Penal Law to provide that the commission of an act of violence against another person by a parent or person legally responsible for the care and custody of the child, in front of such child, should be sufficient basis to constitute the crime of endangering the welfare of a child. The cases studied by the Commission showed a direct and immediate link between domestic violence and child abuse. Of the 57 cases in the study, 36 of the victims (63%) had children and of the 36 victims with children, in 24 (67%) cases, at least one child was physically present at the time of the homicide. Further, in four of these cases, two children were killed and three were physically injured.

Clearly, children in homes where domestic violence occurs face a greater risk that their emotional, physical and mental development will be harmed. Studies indicate that children who witness domestic violence exhibit more aggressive behavior, depression, anxiety, low self-esteem and low cognitive, verbal and motor skills. In one study, the medical records of mothers of child abuse victims showed a high percentage (59.4%) of reports or indications of domestic violence. The inextricable link between domestic violence and child abuse and the increased chances that children who witness domestic violence will suffer physically and emotionally emphasizes the need for the inclusion of such behavior in Endangering the Welfare of a child in the second degree as proposed in this legislation. (1)

Society as a whole must recognize the potential dangers faced by our children and take the necessary steps to protect their future. In order to ensure that the law provides the highest level of protection

possible to child abuse victims, the enactment of this legislation is critical.

Legislative history

S.2034: 2007-08 - Referred to Codes, Passed Senate

Budget implications

None.

(1) The study cited was not repeated. There have been other studies of co-occurrence of domestic violence and child abuse and most show an overlap of 30-60% (Edleson, J.L. (1999). "The overlap between child maltreatment and women battering," Violence Against Women, 5(2), 134-154.

Effective date

November 1 next succeeding passage.