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Endangering the Welfare of a Child in New York City Criminal Courts

By Don Murray, Esq.

Endangering the welfare of a child is a frightening charge that is becoming quite popular with the police department and the District Attorneys' Offices in New York City and increasingly broadly applied.

Endangering the welfare of a child is a misdemeanor, but the consequences of being accused of endangering the welfare of a child can spread far beyond the criminal justice system. A frequent offshoot of an "endangering" charge is that the child is removed from the home and placed in foster care (if the accused is a parent). This is what the schools don't tell the children when they program them to report spankings to their teachers.

At first glance, it certainly sounds completely reasonable to have a crime on the books to protect children from people endangering their welfare. Who in the world could possibly be opposed to protecting the welfare of children? And it is perhaps this quite noble goal that led the legislature to make endangering children a criminal act.

The difficulty with the New York State crime of endangering the welfare of a child, however, lies in its incredibly broad definition of what endangering means.

The result is that the police and the New York District Attorneys have recently taken to prosecuting people for a dizzying array of conduct that often can seem shocking to most people.

For example, people have been arrested and accused of endangering the welfare of a child for:

  •     cursing in front children
  •     leaving a 16 year old "child" alone in the house overnight
  •     fighting in front of children
  •     driving recklessly with children in the car
  •     imposing corporal punishment as discipline
  •     taking a child outside in a light sweater when the Queens District Attorney thought that heavier outer clothing ought to have been worn. (not our case)

This is truly a frightening state of affairs. The State of New York is now in the business of evaluating the thickness of the outer clothing our children wear in comparison to the outside temperature. This is a CRIMINAL case. The defendant faced a CRIMINAL CONVICTION and possible time in jail because his view of the needed thickness of the outer garments of his child differed from the judgment of the police and Queens District Attorney's Office.

The really frightening thing is what is next. What happens if someone takes her daughter outside in a polyester sweater instead of a wool sweater? Polyester isn't as warm as wool and conceivably the thickness of the sweater could be deceptive as to its warmth. Is the State of New York going to be making criminal laws about the minimum warmth rating for particular temperatures when taking children outside? This seems absurd even on casual thought.

One can imagine all kinds of behavior that could be deemed MORE harmful to children than thin sweaters or fighting in front of children. It is a crime to fight in front of children? Then why is it not endangering the welfare of a child to take your child to see the movie Saving Private Ryan in which people are brutally butchered in almost non-stop ultra-violent war scenes? The District Attorneys wouldn't have enough jail space in all of New York City to house all the parents who exposed their children to Ryan or other similar scenes of horrific violence.

I routinely see parents who feed their children on steady diets of fast food. Or what about parents who expose their children to second hand smoke from the moment of their birth? Perhaps sending children to attend certain dangerous public schools is endangering their welfare. Are parents endangering the welfare of their children by not driving Volvo Station Wagons or Lincoln Navigators?

What about parents who don't read to their children? What about parents who tell their children that they are worthless and will never amount to anything? What about parents who don't care about school because they didn't do well in school and managed to make a living? What about parents who both work long hours and never see their children. What about parents who never play with their children? Should all of these parents be reported to the District Attorney's Office? There aren't enough jails in all of the United States to hold the parents who are guilty of such behavior.

People are not perfect and there will always be room for improvement in the bringing up of children. But the fact of the matter is there will be parents who will insist on smoking constantly around their children. There will always be parents who will take their children to see almost any movie. There will always be parents who will raise their children on peculiar or unhealthy diets.

Is this something to be proud of? Probably not. And there lies the difficulty. To be opposed to the over-reaching use of "endangering the welfare of a child" is a dangerous political position to take.

If the police department makes an arrest for endangering the welfare of a child, everyone involved becomes immediately terrified. The District Attorney's Office is terrified because any case involving a child might come back to haunt them politically.

Similarly, most judges are afraid of endangering cases because they are terrified that an error in judgment on their part will be turned into political firestorm "if something were to happen."

Taking the position that the endangering laws are absurdly too broad or applied too broadly leaves a person open to the criticism that he is soft on crime or is somehow in favor of child abuse.

It's not about being in favor of child abuse. Nobody is in favor of child abuse. It is about being in favor of the Government not getting so deeply involved in our lives and telling us how to behave at such microscopic levels that we must be concerned about being prosecuted criminally for the thickness of the sweater in which we dress our child.

Wouldn't it be nice if people didn't smoke around their children? Sure. Wouldn't it be nice if all parents played with their children? Absolutely. Wouldn't it be nice if parents never said mean, awful things to their children? Of course.

But there is a difference (or there used to be anyway) between what would be nice in a perfect world and what ought to be made a criminal act.

So beware if you find yourself accused of endangering the welfare of a child. No matter how absurd you may think it is, no matter how illegal you think your criminal prosecution may be, you are in for a fight. Get a lawyer and prepare for battle.

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In my view, the Government’s ever increasing tendency to charge Endangering the Welfare of a Child in ever widening sets of circumstances has put us on a dangerous slippery slope of Government interference into personal lives. Prosecuting people in criminal court for taking a child out without a sweater, for example, cheapens the meaning of the offense and is an insult to the seriousness of the problem of keeping our children safe from the criminal behavior of others.
— Don Murray

Endangering the Welfare of A Child Prosecutions in New York

Endangering the welfare of a child is becoming a frighteningly increasingly used tool of the Government in New York to prosecute parents and caregivers of children for a wide degree of conduct that in the past would not have been considered "criminal".

This article outlines this disturbing new trend in the prosecution of parents of caregivers.

Call 718-268-2171 for more information about Endangering the Welfare of a Child Cases in New York or to schedule your free consultation with a New York criminal defense lawyer from Shalley & Murray.

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