On February 14, 2022, a three-judge appellate panel decided the Bergen County case of State v. M.K.P. The principal issue under N.J.S.A. 2C:24-8 was whether under the circumstances, the caretaker’s assault of her elderly mother constituted the crime of elder neglect.
Presiding Judge Clarkson Fisher wrote for the Court in relevant part: In appealing, defendant argues, among other things, that the State’s theory of criminal culpability under N.J.S.A. 2C:24-8(a) was “legally insufficient” because the statute requires “neglect,” and the State’s theory was not that defendant neglected Irene but that she assaulted her. As the State argued in successfully opposing defendant’s motion for a judgment of acquittal that the assault was the neglect: “striking an elderly person by itself by its very nature is neglect.” The question presented to us is no different. We are asked to determine whether assaulting an elderly person – of whom the defendant has assumed responsibility – constitutes the type of neglect criminalized by N.J.S.A. 2C:24-8(a). In answering that question, we agree with defendant that an assault – criminalized elsewhere in the criminal code – cannot constitute the neglect required by N.J.S.A. 2C:24-8(a).
To explain, we start with the language of the statute itself. N.J.S.A. 2C:24-8(a) makes it a third-degree offense for a person, in the relationship defendant was in with Irene, to “abandon” or “unreasonably neglect to do or fail to permit to be done any act necessary for the physical or mental health” of the elderly person. The words describing the criminalized conduct – “abandon,” “neglect,” and “fail” – all connote an act of omission rather than an act of commission. Indeed, “abandon” is further defined in the statute as “willful desertion or forsaking” of the protected person, additional words connoting inaction.
A counter to the Court’s logic is that while desertion or forsaking connote omission, willful connotes a commission. This is another example of the Legislature that the courts defer to being unduly vague and creating the opportunity for litigation with its vagaries.