Enacts the child protection act of 2013; repealer

Section 2 defines terms "person in a position of trust" and "child abuse offense."

Sections 3, 4 and 5 amend provisions of current law to require a sentence of life without parole for persons convicted of the new crime of aggravated murder of a child.

Section 6 provides that the new crime of aggravated manslaughter of a child is a class B violent felony offense; the new crime of aggravated abuse of a child 1st degree is a class C violent felony offense; and the new crime of aggravated abuse of a child 2nd degree is a class D violent felony offense.

Section 7 provides that an attempt to commit the new class A-1 felony of aggravated murder of a child is also a class A-1 felony.

Section 8 renames the crime reckless assault of a child by a child day care provider to aggravated abuse of a child in the third degree. This E felony, which formerly only applied to day care providers, now would apply to a parent, guardian or person in a position of trust who reck- lessly causes physical injury to a child under age 14.

Section 9 defines a new class D violent felony of aggravated abuse of a child in the second degree and a new class C violent felony of aggra- vated abuse of a child in the first degree.

Section 10 defines a new class B violent felony offense of aggravated manslaughter of a child, and a new class A-1 felony offense of aggra- vated murder of a child.

Sections 11, 12 and 13 make changes to existing provisions of law to conform these existing laws to reflect the changes made by this bill.

Section 14 defines the new class E felony offense of aggravated endan- gering the welfare of a child.

Section 15 provides that speedy trial requirements set forth in the current law do not apply to a prosecution for aggravated murder of a child.

Section 16 amends provisions of current law to provide that a prose- cution for aggravated murder of a child or aggravated manslaughter of a child cannot be terminated upon the consent of the parties.

Section 17 provides that a child witness called to testify before the grand jury may be accompanied by a social worker, psychologist, or other professional to provide emotional support when giving testimony regard- ing a charge of aggravated murder of a child, aggravated manslaughter of a child, aggravated abuse of a child in the first, second or third degree or aggravated endangering the welfare of a child.

Section 18 amends provisions of law authorizing eavesdropping warrant to be issued to allow eavesdropping warranting investigations involving the crimes of aggravated abuse of a child in the 1st, 2nd or 3rd degrees, aggravated murder of a child, aggravated manslaughter of a child or aggravated endangering the welfare of a child.

Section 19 of the bill amends the provisions of the vehicle and traffic law to include persons convicted of a child abuse offense in provisions of current law disqualifying a person upon conviction of certain crimes from receiving a license to operate a bus.

Section 20 of the bill amends provisions of current law to prohibit a Person convicted of aggravated murder of a child from inheriting proper- ty from the murdered child victim of his or her estate.

Section 21 of the bill provides that a person convicted of the new crimes of aggravated murder of a child, aggravated manslaughter of a child, aggravated abuse of a child in the first, second or third degree or aggravated endangering the welfare of a child must give a DNA sample for inclusion in the DNA database.

Sections 22 of the bill provide that a parent convicted of the new crime of aggravated murder of a child or aggravated manslaughter of a child shall be disqualified in certain parental tights proceedings.

Section 23 is the effective date.

Justification

Serious forms of child abuse are not adequately covered by existing laws. What is more, many existing statutes are so overly complicated as to be practically useless, or carry such disproportion- ately low punishments as to permit serious child abuse to have essen- tially no meaningful consequences. Current misdemeanors and nonviolent felonies with probationary sentences do not do enough to save and protect children from cruel and repeated maltreatment.

The Child Protection Act of 2011 fixes these problems in a measured, concise way that respects the existing statutory scheme. The Act would:

Create a felony child endangering statute to protect children from espe- cially cruel and sadistic conduct, much as we have done to protect animals through our Agricultural and Markets Law. Under current law, unless physical injury results, the infliction on children of sadistic, painful, dangerous punishments can typically be charged only as misde- meanors. Yet, prosecutors throughout the state frequently are presented with cases in which this type of chilling abuse is visited by care givers upon the children they are meant to protect. Real life cases of such torture include caregivers forcing children to: kneel on rice or piles of pencils for hours; stand outside for hours on winter nights wearing only underpants; regularly gargle with and drink Tabasco sauce; remain locked in closets or in cabinets or chained to radiators for hours on end; hang out of upper-story windows while being held by the ankles. As accounts of the heartbreaking life and tragic death of seven-year-old Nixzmary Brown came to light in 2006, for example, it was revealed she had suffered numerous forms of such punishment prior to her murder, including being forced to regularly defecate and urinate in a litter box, being submerged repeatedly in a tub filled with ice-cold water, and being duct-taped and bound to furniture for hours at a time.

These forms of child abuse are shocking when encountered and fall far beyond the scope of what constitutes acceptable treatment of a child. This Act would provide enhanced protection for children from these types of cruel and sadistic abuse.

Create statutes to protect children from serious reckless abuse. This would close loopholes in the law which currently limit penalties for some extreme acts of abuse to misdemeanors or make available only outdated, indecipherable, complicated statutes that in recent years courts have made essentially unavailable to prosecutors. The existing statutes are not written to take into account the reality of how serious child abuse is often inflicted: recklessly and violently, but without specific intent to cause injury, and very often without use of a danger- ous instrument. To the extent existing laws address reckless conduct, they minimize the seriousness by treating it as low level offenses or often include the requirement that the conduct be "depraved" an element that New York courts have in recent years interpreted in a way that is virtually impossible to prove. For example, under current law, parents who recklessly starve an infant to the brink of death for 1-1/2 years and to the point where the child becomes deformed and emaciated can be charged with nothing more than a misdemeanor. In addition, many existing statutes include multiple levels of mixed intent that are nearly impos- sible to understand, let alone prove.

Recognize that caregivers and those in positions of trust to care for children have a heightened duty of care to children and violating this special relationship is an aggravating factor in any child abuse crime. There is a special, dependent relationship between children and their guardians, and children are particularly vulnerable to abuse by those

who should be their first-line protectors. Because of the nature of the relationship, there is a heightened potential for both physical and emotional harm to children at the hands of their caregivers. The Act thus recognizes a betrayal of this relationship as an aggravating factor in child abuse crimes. With passage of the Child Protection Act of 2010, New York would codify in explicit terms that breaches of caregivers' special duty of care to dependant, defenseless children will carry added consequences to reflect the seriousness of the breach.

Increase penalties for repeat child abusers. Where a person abuses a child and has previously committed crimes against children, increased penalties are called for. The Act would address this under Aggravated Abuse of A Child in the First and Second Degrees, and under Aggravated Endangering the Welfare of A Child by elevating charges one level if an abuser has a prior child abuse conviction.

Each time a high-profile press case emerges involving the tragic abusive death of yet another child, a spotlight is shined on the problem for a brief time. We are reminded of the deficiencies in our laws that prevent us from taking adequate action as soon as abuse of a child begins. We owe it to our children to strengthen the laws and to offer them better protection before the abuse turns fatal.

Legislative history

2006 - S.7661 - PASSED SENATE 2007 - S.675-A - PASSED SENATE 2008 - S.675-B - PASSED SENATE 2008 - S.8782 (RELATED BILL) - DIED IN SENATE RULES 2009 - S.1510/A.182 (RELATED BILL) 2009-10 - S.7705 - Passed Senate

Assembly: 2009-10 - A.11035 (Lentol) - Referred to Codes

Fiscal implications

While some additional prosecutions and some increased sentences may result, this would be offset by medical, social welfare and other cost savings from earlier intervention in the lives of abused children.

Effective date

Immediately, with provisions.