Bill Text: NJ A2335 | 2018-2019 | Regular Session | Introduced
Bill Title: Provides that unlawful use, manufacture, or distribution of controlled dangerous substance by parent or caregiver in presence of child constitutes crime of endangering welfare of that child.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-02-01 - Introduced, Referred to Assembly Women and Children Committee [A2335 Detail]
Download: New_Jersey-2018-A2335-Introduced.html
Sponsored by:
Assemblywoman NANCY F. MUNOZ
District 21 (Morris, Somerset and Union)
SYNOPSIS
Provides that unlawful use, manufacture, or distribution of controlled dangerous substance by parent or caregiver in presence of child constitutes crime of endangering welfare of that child.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning endangering the welfare of a child and amending N.J.S.2C:24-4.
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. (1) 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 is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.
(2) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child 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 section 1 of P.L.1974, c.119 (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 paragraph to a child is guilty of a crime of the third degree.
(b) (i) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who violates the provisions of N.J.S.2C:35-5 while in the presence of such child is guilty of a crime of the third degree.
(ii) Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who violates the provisions of N.J.S.2C:35-10 while in the presence of such child is guilty of a crime of the fourth degree.
(c) Any other person who engages in conduct or who causes harm as described in subparagraph (a) of this paragraph to a child is guilty of a crime of the third degree.
Nothing in this subsection shall preclude a prosecution for any other offense set forth in chapter 35 of Title 2C of the New Jersey Statutes or any other offense defined by the laws of this State.
b. (1) As used in this subsection:
"Child" means any person under 18 years of age.
"Distribute" means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not. The term also includes an agreement or attempt to distribute.
"File-sharing program" means a computer program, application, software or operating system that allows the user of a computer on which such program, application, software or operating system is installed to designate files as available for searching by and copying to one or more other computers, to transmit such designated files directly to one or more other computers, and to request the transmission of such designated files directly from one or more other computers. The term "file-sharing program" includes but is not limited to a computer program, application or software that enables a computer user to participate in a peer-to-peer network.
"Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.
"Item depicting the sexual exploitation or abuse of a child" means a photograph, film, video, an electronic, electromagnetic or digital recording, an image stored or maintained in a computer program or file or in a portion of a file, or any other reproduction or reconstruction which :
(a) depicts a child engaging in a prohibited sexual act or in the simulation of such an act; or
(b) portrays a child in a sexually suggestive manner.
"Peer-to-peer network" means a connection of computer systems through which files are shared directly between the systems on a network without the need of a central server.
"Portray a child in a sexually suggestive manner" means:
(a) to depict a child's less than completely and opaquely covered intimate parts, as defined in N.J.S.2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or
(b) to depict any form of contact with a child's intimate parts, as defined in N.J.S.2C:14-1, in a manner that, by means of the posing, composition, format, or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the child; or
(c) to otherwise depict a child for the purpose of sexual stimulation or gratification of any person who may view the depiction where the depiction does not have serious literary, artistic, political, or scientific value.
"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; or
(j) Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.
"Reproduction" means, but is not limited to, computer generated images.
(2) (Deleted by amendment, P.L.2001, c.291).
(3) A person commits a crime of the first degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act or to be portrayed in a sexually suggestive manner if the person knows, has reason to know or intends that the prohibited act or portrayal may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance.
(4) A person commits a crime of the second degree if he photographs or films a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act or for portrayal in a sexually suggestive manner.
(5) (a) A person commits a crime if, by any means, including but not limited to the Internet, he:
(i) knowingly distributes an item depicting the sexual exploitation or abuse of a child;
(ii) knowingly possesses an item depicting the sexual exploitation or abuse of a child with the intent to distribute that item; or
(iii) knowingly stores or maintains an item depicting the sexual exploitation or abuse of a child using a file-sharing program which is designated as available for searching by or copying to one or more other computers.
In a prosecution under sub-subparagraph (iii) of this subparagraph, the State shall not be required to offer proof that an item depicting the sexual exploitation or abuse of a child had actually been searched, copied, transmitted or viewed by another user of the file-sharing program, or by any other person, and it shall be no defense that the defendant did not intend to distribute the item to another user of the file-sharing program or to any other person. Nor shall the State be required to prove that the defendant was aware that the item depicting the sexual exploitation or abuse of a child was available for searching or copying to one or more other computers, and the defendant shall be strictly liable for failing to designate the item as not available for searching or copying by one or more other computers.
A violation of this subparagraph that involves 1,000 or more items depicting the sexual exploitation or abuse of a child is a crime of the first degree; otherwise it is a crime of the second degree.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved at least 25 but less than 1,000 items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person whose offense under this subparagraph involved 1,000 or more items depicting the sexual exploitation or abuse of a child shall be sentenced to a mandatory minimum term of imprisonment, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or 10 years, whichever is greater, during which the defendant shall be ineligible for parole.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4), or (5) of this subsection, or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to paragraph (3), (4), or (5) of this subsection.
For purposes of this subparagraph, the term "possess" includes receiving, viewing, or having under one's control, through any means, including the Internet.
(b) (i) A person commits a crime of the first degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, 100,000 or more items depicting the sexual exploitation or abuse of a child.
(ii) A person commits a crime of the second degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, at least 1,000 but less than 100,000 items depicting the sexual exploitation or abuse of a child.
(iii) A person commits a crime of the third degree if he knowingly possesses, knowingly views, or knowingly has under his control, through any means, including the Internet, less than 1,000 items depicting the sexual exploitation or abuse of a child.
Notwithstanding the provisions of subsection e. of N.J.S.2C:44-1, in any instance where a person was convicted of an offense under this subparagraph that involved 100 or more items depicting the sexual exploitation or abuse of a child, the court shall impose a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
Notwithstanding the provisions of subsection a. of N.J.S.2C:43-6, a person convicted of a second or subsequent offense under this subparagraph shall be sentenced to an extended term of imprisonment as set forth in N.J.S.2C:43-7. For the purposes of this subparagraph, an offense is considered a second or subsequent offense if the actor has at any time been convicted pursuant to paragraph (3), (4), or (5) of this subsection, or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to paragraph (3), (4), or (5) of this subsection.
Nothing in this subparagraph shall be construed to preclude or limit any prosecution or conviction for the offense set forth in subparagraph (a) of this paragraph.
(6) For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 18 in any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 18. If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act or portrayed in a sexually suggestive manner is under the age of 18, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 18, nor shall it be a defense that the actor believed that the child was 18 years of age or older, even if such a mistaken belief was reasonable.
(7) For aggregation purposes, each depiction of the sexual exploitation or abuse of a child shall be considered a separate item, provided that each depiction that is in the form of a photograph, picture, image, or visual depiction of a similar nature shall be considered to be one item and each depiction that is in the form of a film, video, video-clip, movie, or visual depiction of a similar nature shall be considered to be 10 separate items, and each individual act of distribution of an item depicting the sexual exploitation or abuse of a child shall be considered a separate item. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (a) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the act or acts constituting the violation occurred at the same time or at different times and, with respect to distribution, whether the act or acts of distribution were to the same person or several persons or occurred at different times, provided that each individual act was committed within the applicable statute of limitations. For purposes of determining the number of items depicting the sexual exploitation or abuse of a child for purposes of sentencing pursuant to subparagraph (b) of paragraph (5) of this subsection, the court shall aggregate all items involved, whether the possession of such items occurred at the same time or at different times, provided that each individual act was committed within the applicable statute of limitations.
(cf: P.L.2017, c.141, s.1)
2. This act shall take effect immediately.
STATEMENT
This bill provides that a parent or caregiver who unlawfully uses, manufactures, or distributes a controlled dangerous substance while in the presence of a child is guilty of the crime of endangering the welfare of that child.
The bill provides that any person with a legal duty for the care of a child or who has assumed responsibility for the care of a child who violates the provisions of N.J.S.2C:35-5 while in the presence of such child would be guilty of a crime of the third degree pursuant to N.J.S.2C:24-4, endangering the welfare of a child. The underlying statute, N.J.S.2C:35-5, concerns unlawfully manufacturing, distributing, or dispensing, or having under one's control with intent to manufacture, distribute, or dispense, a controlled dangerous substance. Penalties for violations of N.J.S.2C:35-5 range from a crime of the fourth degree to a crime of the first degree, depending on the particular substance involved and its quantity.
Under the bill, a violation of the provisions of N.J.S.2C:35-10 while in the presence of a child by a person with a legal duty for the care of the child or who has assumed responsibility for the care of the child would constitute a crime of the fourth degree pursuant to N.J.S.2C:24-4, endangering the welfare of a child. The underlying statute, N.J.S.2C:35-10, concerns obtaining, possessing, or using a controlled dangerous substance. Penalties for violations of N.J.S.2C:35-10 range from a disorderly persons offense to a crime of the third degree, depending on the particular substance involved and its quantity.
A crime of the first degree is punishable by a term of imprisonment of ten to 20 years or a fine of up to $200,000, or both; a crime of the second degree, by a term of five to ten years or a fine up to $150,000, or both; a crime of the third degree, by a term of three to five years or a fine up to $15,000, or both, and a crime of the fourth degree, by a term up to 18 months or a fine up to $10,000, or both. A disorderly persons offense is punishable by a term of imprisonment of up to six months or a fine of up to $1,000 or both. A petty disorderly persons offense is punishable by a term of imprisonment of up to 30 days or a fine of up to $500 or both.
The bill specifies that it does not preclude a prosecution for any other offense set forth in chapter 35 of Title 2C of the New Jersey Statutes or any other offense defined by the laws of this State. The intent of this provision is to clarify that a prosecution for endangering the welfare of a child under the bill is separate and distinct from any prosecution for the underlying drug offense or any other criminal prosecution.
