Endangering the Welfare of Children (Part 2)

The Court continued in relevant part: We do not read N.J.S.A. 2C:24-4(a)(1) to incorporate this regulatory provision as a means for establishing the legal duty for the care element of second-degree endangering the welfare of a child. Nothing in the statute expressly references the regulation, which itself does not refer to criminal sanctions. In addition, we do not accept the premise that the elements of a crime can be defined by an administrative regulation, which can be amended or repealed by BME without involvement of the Legislature. Moreover, interpreting the statute to incorporate the regulation would introduce ambiguity as to which acts constitute criminal behavior, raising serious concerns regarding notice. See State v. Dougherty (App. Div. 2018) (“We must strictly construe any reasonable doubt about the meaning of a penal statute in favor of a defendant, applying the rule of lenity.”).

Finally, the State’s argument, if adopted, presumably would apply second-degree offenses under N.J.S.A. 2C:24-4(a)(1) to a number of licensed professionals who are subject to administrative regulations regarding sexual conduct. See, e.g., N.J.A.C. 13:37-8.3(c) (prohibiting sexual contact between a person licensed by the Board of Nursing and that person’s patient); N.J.A.C. 13:42-10.9(b) (prohibiting sexual contact between a person licensed by the Board of Psychological Examiners and that person’s patient); N.J.A.C. 13:35-10.20(c) (prohibiting sexual contact between an athletic trainer licensed by BME and an athlete); N.J.A.C. 13:44E-2.3(c) (prohibiting sexual contact between a person licensed by the Board of Chiropractic Examiners and that person’s patient); N.J.A.C. 13:34-19.3(b) (prohibiting sexual contact between a counselor licensed by the Board of Marriage and Family Therapy Examiners and that person’s patient); N.J.A.C. 13:37A-3.5(c) (prohibiting sexual contact between a person licensed by the Board of Massage and Bodywork Therapy and that person’s client); N.J.A.C. 13:38-2.14(c) (prohibiting sexual contact between a person licensed by the Board of Optometrists and that person’s patient). We have seen no indication that the Legislature intended the second-degree provision of N.J.S.A. 2C:24-4(a)(1) to extend that far.

The rationale for the prohibition of sexual contact under the above-referenced circumstances is that there is a concern for a patient’s dependence and vulnerability vitiating consent. A related concern is that the caregiver’s objectivity can be compromised.