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 attempt 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 City District Attorneys have recently taken to
prosecuting people for almost anything they feel like.
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 Saving Private Ryan
in which people are brutally butchered in almost non-stop ultra-violent
war scenes? The Queens District Attorney's Office 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 Queens 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.
