Assembly Bill A11076

                                BILL NUMBER:A11076

TITLE OF BILL:  An act to amend the penal law, in relation to
establishing the offense of aggravated endangering the welfare of a
child

PURPOSE:  To adequately address the offense of endangering the welfare
of a child and further protect innocent child victims.

SUMMARY OF PROVISIONS:  A new section, 260.12, is amended in to the
Penal Law. EXISTING LAW:  Please see "justification" section for
further information.

JUSTIFICATION:  The following is transcribed from the New York State
Law Enforcement Council 2010 Legislative Priorities handbook:

"Under current statutes, to prosecute child abuse as a felony,
prosecutors must prove the intentional infliction of serious physical
injury or prove the use of a dangerous weapon. In most cases of child
abuse, particularly in the earlier stages of abuse, the actions either
do not result in a. telltale physical injury or it is difficult to
prove that the act was undertaken intentionally, rather than
recklessly. In many of these cases, children may be put in danger
through abandonment or neglect or subjected to other physical or
emotional cruelties that do not fall under the Penal Law definition of
serious physical injury (currently defined as "physical injury which
              

creates a substantial risk of death, or which causes death or serious
and protected disfigurement, protracted impairment of health or
protracted loss or impairment of the function of any bodily organ"
within Article 10.10 of the Penal Law). Hands, fists, and feet do not
qualify as "weapons" so abuse inflicted by hitting, kicking or
punching frequently falls through the gap in the law.

Prosecutors are left with two options: a 'B' felony, a high-level
felony punishable by a minimum of five years in prison, or an 'A'
misdemeanor, a low-level charge which can gamer no jail time."  law.

The proposed."Aggravated Endangering the Welfare of a Child, a class
'E' felony, would penalize a person in a position of trust who
knowingly acts in a way likely to be injurious to the child's
physical, mental, or emotional welfare. The charge requires one of two
aggravating factors be present: the offender has previously been
convicted of a crime in which the victim was a minor, or the conduct
includes acts that cause the child extreme pain or which are carried
out in an especially vicious or sadistic manner.

Among other states, Florida, California, Delaware, Texas, Georgia, and
Iowa have recognized that a misdemeanor penalty is inadequate in these
situations. The children of New York State deserve no less protection.

The proposed felony endangering statute would apply to a person
charged with any duty or responsibility for the health, education,
welfare, supervision, or care of the child. This requirement
recognizes the increased danger and isolation faced by a child when
his or her abuser is an adult to whom the child would otherwise turn
for help. Persons in a position of trust should be the first people to


recognize that a child is being endangered, but when they are the
abuser, the child must hope that outsiders will intervene.

The current Endangering the Welfare of a Child misdemeanor penalizes
parents and guardians who fail to take actions to prevent their
children from abuse, neglect or delinquency, but it provides no
enhanced penalty for parents and guardians who take active roles in
abusing their children. When children are abused by those who are
responsible for their care, the psychological and emotional toll is
great."

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  This act shall take effect on the first of November
next succeeding the date on which it shall have become a law.