ENDANGERING THE WELFARE OF CHILDREN—N.J.S.A. 2C:24-4
If you have been charged with violation of 2C:24-4, you need to know that this is a very serious offense–usually charged as a 2nd degree, which means you would be, if convicted, exposed to jail time of a minimum of 5 years and a max of 10 years, monetary fines of up to $150,000.00, felony criminal record. During my 26 years plus of practicing criminal law, I have successfully handled this type of case. If you have been charged I can help you possibly avoid conviction, avoid or minimize jail time, avoid or minimize criminal record. Please contact me at (732)-337-7922 for an evaluation of your circumstances and vigorous and competent representation.
ILLUSTRATIVE EXAMPLES OF WHAT CONSTITUTE THE OFFENSE:
Fact pattern no. 1: Your neighbors have a fifteen (15) year old daughter who is “15 going on 30”, if you know what I mean. She is a real “hotty” and has already dated a couple of eighteen (18) year old boys. You’d really like to see her without her bikini on and you just happen to know one of her paramours. You ask him if he and she would like to make a discreet “porno” film in exchange for a quick $1,500.00. They accept and they perform sexual acts in your bedroom in front of your video camera while you record it all. What a score! You tell a couple of your closest friends about this little piece of unbelievably good fortune and they each want not only to see the video, but they want copies of it for themselves. So being the good friend that you are, you provide copies to two (2) of your best friends. Two weeks later you are surfing the net when you discover the video has made it onto a porno site. You realize this escapade has gone much further than you ever dreamed it would, but have you just committed one or more serious crimes?
Fact pattern no. 2: You’ve recently discovered that you like viewing children engaging in sexual acts and you have downloaded some “kiddie porn” from your favorite internet porn website. Your wife discovers your stash. Have you just committed a serious crime?
THE ACTUAL LAW…ENDANGERING THE WELFARE OF A CHILD
a. “Any person having a legal duty for the care for 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 a child, or who causes the child harm that
would make 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, s1 (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. (1) As used in this subsection:
“Child” shall mean any person under 16 years of age.
“Internet” means the international computer network of both federal and non-
federal interoperable packet switched data networks.
“Prohibited sexual acts” 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.A.
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 second degree if he 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, including
on the Internet, or may be part of an exhibition or performance. If the person
is a parent, guardian or other person legally charged with the care or custody
of the child, the person shall be guilty of a crime of the first degree.
(4) Any person who photographs a child in a prohibited sexual act or in the
simulation of such an act 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 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, through any means,
including the Internet, any photograph, film, videotape, computer program
or file, video game 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, video tape, computer program or file, video game or
any other reproduction or reconstruction which depicts a child engaging in
a prohibited sexual act or in the simulation of such an act, including on the
Internet, 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, film, videotape,
computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 16. 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 is under the age of 16, the actor shall be strictly liable and it shall not be a defense that the actor did not know the child was under the age of 16, nor shall it be a defense that the actor believed that the child was 16 years of age or older, even if such a mistaken belief was reasonable.”
The answer to the question in fact pattern no. 1 is YES. You have arguably committed at least one (1) second degree crime under 2C:24-4(b)(3) and/or(4) and/or (5)(a) because you “purposefully” N.J.S.A. 2C:2-2(b)(1) or “knowingly” N.J.S.A. 2C:2-2(b)(2) engaged in the proscribed conduct of filming a person under the age of 16 years performing prohibited sexual acts and you distributed same to third persons. See State v. D.R., 109 N.J. 348 (1988); State v. Miller, 108 N.J. 112 (1987);
Just to put this into perspective, if convicted, on sentencing for a second degree crime, monetary fines of up to $150,000.00 can be imposed, plus there is a presumption of incarceration of a low of five (5) years to a high of ten (10) years per count, presumptive seven years, plus a criminal record. N.J.S.A. 2C: 43-3(a). If convicted of a third degree crime, you could be sentenced to pay monetary fines of up to $15,000.00, plus jail time of a minimum of three (3) years and a maximum of five (5) years, plus a criminal record. N.J.S.A. 2C:43-3(b) Of course at sentencing the court would weigh the aggravating and mitigating factors N.J.S.A. 2C: 44-1(e) to determine whether you should receive the lower or upper end of the range.
The answer to the question in fact pattern no. 2 is YES. By merely viewing or possessing a computer file containing depictions of children under 16 years of age engaging in prohibited sexual conduct you have committed a fourth degree crime under 2C:24-4(b)(5)(b). A fourth degree crime can be punishable by monetary fines of up to $10,000, plus jail time at a minimum of one (1) year and a maximum of eighteen (18) months, plus a criminal record. N.J.S.A. 2C:43-3(b).
Here are some other ways in which the crime can be committed:
In State v. Hacket, 166 N.J. 66 (2001), defendant was convicted of debauching the morals of a child for exposing her to excessive nudity.
In State v. Hutchinson, A-1377-05T4 (App. Div. 2011), defendant, a parent, was convicted of endangering the welfare of his daughter plus aggravated sexual assault for having numerous episodes of digital vaginal penetration with her.
If you are charged with endangering the welfare of a child, this is nothing to mess around with. You need to contact a skilled and experienced attorney to protect your interest immediately. Contact me for help at (732)-337-7922
