ASSEMBLY, No. 1285

 

STATE OF NEW JERSEY

 

Introduced Pending Technical Review by Legislative Counsel

 

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

 

 

By Assemblywomen GILL and BUONO

 

 

An Act concerning child abuse and neglect and revising parts of statutory law.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. N.J.S.2C:24-4 is amended to read as follows:

    2C:24-4. Endangering Welfare of Children. a. Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in [R.S.9:6-1, R.S.9:6-3 and] P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

    b. As used in this subsection:

    (1) "Child" shall mean any person under 16 years of age.

    (2) "Prohibited sexual act" means

    (a) Sexual intercourse; or

    (b) Anal intercourse; or

    (c) Masturbation; or

    (d) Bestiality; or

    (e) Sadism; or

    (f) Masochism; or

    (g) Fellatio; or

    (h) Cunnilingus; or

    (i) Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction.

    (3) Any person, including any parent, guardian, or other person legally charged with the care or custody of a child, who causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner or may be part of an exhibition or performance is guilty of a crime of the second degree.

    (4) Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.

    (5) (a) Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer any photograph, film, videotape or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.

    (b) Any person who knowingly possesses or knowingly views any photograph, film, videotape or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the fourth degree.

    (6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 16 in any photograph or film shall be rebuttably presumed to be under the age of 16.

(cf. P.L.1992, c.6 s.1)

 

    2. (New section) a. For the purposes of this section, abuse of a child shall consist of any the following acts: (1) disposing of the custody of a child contrary to law; (2) employing or permitting a child to be employed in any vocation or employment injurious to his health or dangerous to his life or limb, or contrary to the laws of this State; (3) employing or permitting a child to be employed in any occupation, employment or vocation dangerous to the morals of such child; or (4) using excessive physical restraint on the child under circumstances which do not indicate that the child's behavior is harmful to himself, others or property.

    Abandonment of a child shall mean the willful forsaking of a child by anyone having the custody or control of the child.

    Cruelty of a child shall mean inflicting unnecessarily severe corporal punishment upon a child by anyone having the custody or control of the child.

    Neglect of a child shall mean the willfull failure by anyone having the custody and control of a child to provide proper and sufficient food, clothing, maintenance, regular school education as required by law, medical attendance or surgical treatment, and a clean and proper home.

    b. Any parent or guardian or person having the care, custody or control of a child who abuses, abandons, is cruel to or neglectful of such child, or any person who abuses, is cruel to, or neglectful of any child is guilty of a crime of the fourth degree.

 

    3. Section 2 of P.L.1971, c.437 (C.9:6-8.9) is amended to read as follows:

    2. For purposes of this act:

    "Abused child" means a child under the age of 18 years whose parent, guardian, or other person having his custody and control:

    a. Inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ;

    b. Creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; or

    c. Commits or allows to be committed an act of sexual abuse against the child;

    d. Or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, or such other person having his custody and control, to exercise a minimum degree of care (1) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care or a clean and proper home though financially able to do so or though offered financial or other reasonable means to do so, or (2) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment or using excessive physical restraint under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; or by any other act of a similarly serious nature requiring the aid of the court;

    e. Or a child who has been willfully abandoned by his parent or guardian, or such other person having his custody and control;

    f. Or a child who is in an institution as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21) and (1) has been so placed inappropriately for a continued period of time with the knowledge that the placement has resulted and may continue to result in harm to the child's mental or physical well-being or (2) has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation[.];

    g. Commits any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child;

    h. Exposes a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of the child;

    i. Fails to care for and keep the control and custody of a child so that child is exposed to physical or moral risk without proper and sufficient protection; or

    j. Fails to care for and keep the control and custody of a child so that the child is liable to be supported and maintained at the expense of the public, or by child care societies or private persons not legally chargeable with his care, custody and control.

    A child shall not be considered abused or neglected pursuant to subsection f. of this section if the acts or omissions described therein occur in a day school as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21).

(cf. P.L.1987, c.341)

 

    4. Section 4 of P.L.1971, c.437 (C.9:6-8.11) is amended to read as follows:

    4. Upon receipt of any such report the [Bureau of Children's Services] Division of Youth and Family Services shall immediately take such action as shall be necessary to insure the safety of the child and to that end may request and shall receive appropriate assistance from local and State law enforcement officials. The [bureau] division shall also, within 72 hours, forward a report of such matter to the Central Registry of the [Bureau of Children's Services] Division of Youth and Family Services in Trenton. No information received in the central registry shall be considered as a public record within the meaning of P.L.1963, c.73.

(cf. P.L.1971, c.437 s.4)

 

    5. Section 5 of P.L.1971, c.437 (C.9:6-8.12) is amended to read as follows:

    5. The [Bureau of Children's Services] Division of Youth and Family Services shall maintain in each of its districts on a 24 hour daily basis throughout each year an emergency telephone service for the receipt of child abuse calls.

(cf. P.L.1971, c.437 s.5)

 

    6. Section 8 of P.L.1971, c.437 (C.9:6-8.15) is amended to read as follows:

    8. The [Bureau of Children's Services] Division of Youth and Family Services shall from time to time promulgate such rules and regulations as may be necessary to effectuate the provisions of this act.

(cf. P.L.1971, c.437 s.8)

 

    7. Section 1 of P.L.1974, c.119 (C.9:6-8.21) is amended to read as follows:

    1. As used in this act, unless the specific context indicates otherwise:

    a. "Parent or guardian" means any natural parent, adoptive parent, foster parent, stepparent, or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care. Parent or guardian includes a teacher, employee or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare and any other staff person of an institution regardless of whether or not the person is responsible for the care or supervision of the child. Parent or guardian also includes a teaching staff member or other employee, whether compensated or uncompensated, of a day school as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21).

    b. "Child" means any child alleged to have been abused or neglected.

    c. "Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) commits or allows to be committed an act of sexual abuse against the child; (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care or a clean and proper home though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined; (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; (7) or a child who is in an institution and (a) has been placed there inappropriately for a continued period of time with the knowledge that the placement has resulted or may continue to result in harm to the child's mental or physical well-being or (b) who has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation; or (8) commits any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child; or (9) exposes a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of the child; or (10) fails to care for and keep control and custody of a child so that child is exposed to physical or moral risk without proper and sufficient protection; or (11) fails to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child care societies or private persons not legally chargeable with his care, custody and control.

    A child shall not be considered abused or neglected pursuant to paragraph (7) of subsection c. of this section if the acts or omissions described therein occur in a day school as defined in this section.

    No child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall for this reason alone be considered to be abused or neglected.

    d. "Law guardian" means an attorney admitted to the practice of law in this State, regularly employed by the Office of the Public Defender or appointed by the court, and designated under this act to represent minors in alleged cases of child abuse or neglect.

    e. "Attorney" means an attorney admitted to the practice of law in this State who shall be privately retained; or, in the instance of an indigent parent or guardian, an attorney from the Office of the Public Defender or an attorney appointed by the court who shall be appointed in order to avoid conflict between the interests of the child and the parent or guardian in regard to representation.

    f. "Division" means the Division of Youth and Family Services in the Department of Human Services unless otherwise specified.

    g. "Institution" means a public or private facility in the State which provides children with out of home care, supervision or maintenance. Institution includes, but is not limited to, a correctional facility, detention facility, treatment facility, day care center, residential school, shelter and hospital.

    h. "Day school" means a public or private school which provides general or special educational services to day students in grades kindergarten through 12. Day school does not include a residential facility, whether public or private, which provides care on a 24-hour basis.

(cf. P.L.1994, c.58 s.39)

 

    8. P.L.1950, c.125 (C.9:6-1.1) and R.S.9:6-1 through R.S.9:6-8, inclusive, are repealed.

 

    9. This act shall take effect immediately.

 

 

STATEMENT

 

    This bill makes various changes in the child abuse and neglect law and the criminal statutes dealing with crimes against children. Amendments proposed by the bill would clarify the definition of child abuse and neglect found in the abuse statutes by separating the acts of abuse and neglect which constitute a crime and the acts which would fall under the Division of Youth and Family Services' (DYFS) jurisdiction. The criminal acts would be defined in the criminal statutes dealing with endangering the welfare of a child (Title 2C) and the acts which fall under DYFS' jurisdiction would remain in Title 9. The bill also expands the definition of endangering the welfare of a child to include certain acts of abuse, abandonment, cruelty and neglect. Under the bill's provisions, these acts would constitute crimes of the fourth degree. The bill also updates references to the Bureau of Children's Services to the Division of Youth and Family Services and repeals P.L.1950, c.125 (C.9:6-1.1) and R.S.9:6-1 through R.S.9:6-8, inclusive.

 

 

 

Makes various changes to the State's child abuse and neglect statutes.