Elements of Endangering The Welfare of A Child (Part 3)

As is apparent, our appellate courts have been unanimous over several decades in interpreting N.J.S.A. 2C:24-4(a)(2), through all its iterations, as not requiring proof of actual harm to the child. Not one published appellate opinion holds otherwise. We find no reason to disturb that decades-old sound precedent predicated on the plain language of the statute.

In conjunction we note, “the legislative branch is presumed to be aware of judicial constructions of statutory provisions.” It is eminently fair to observe that “where a statute has been judicially construed, the failure of the Legislature to subsequently act thereon evidences legislative acquiescence in the construction given the statute.”

Had the Legislature chosen to insist on proof of actual harm to a child to convict under N.J.S.A. 2C:24-4(a)(2), it was free to amend the statute, as it did in other aspects of the statute, in the nearly three decades since M.L. In 1992, the Legislature amended N.J.S.A. 2C:24-4(a)(2) to elevate the offense of child endangerment from a third- and fourth-degree crime to a second- and third-degree crime, but it conspicuously did not amend the statute to require proof of actual harm. After that amendment, an Appellate Division panel once again upheld the precedent of interpreting N.J.S.A. 2C:24-4(a)(2) as including the exposure of a child to a substantial risk of harm. In 2013, the Legislature broadened the scope of N.J.S.A. 2C:24-4(a)(2) by raising the age of statutorily protected children from sixteen to eighteen. And again, the Legislature chose not to add language that could undercut precedent by requiring the State to prove actual harm in order to convict under the statute.

The long history of the appellate division siding in the State’s favor on this issue explains why the Appellate Division’s opinion in this case was “unpublished.” The majority’s claims regarding Legislative acquiescence overlook the fact that legislatures get re-elected for being tough on crime and therefore almost never move to relax the punitive aspects of criminal statues, especially in cases involving children.