Senate Bill S7832

                                BILL NUMBER:S7832                REVISED 06/15/10

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 into 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, prosecu-
tors 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."

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 re~ires 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 chil-
dren. 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.