Definitions of Endangering Welfare of Children
In New Jersey, the sexual abuse or molestation of children, or the production, possession or distribution of child pornography are crimes detailed under New Jersey statutes NJ Rev Stat § 2C:24-4 (2014). The penalties for these crimes range from first to fourth degrees and the punishments can be as severe as a minimum of 10 years in prison and a $250,000 fine.
New Jersey Statutes 2C:24-4 are all under the broad banner of Endangering Welfare of Children. And the crimes include:
a. (1) It is a second degree crime for any person with the legal duty - or is responsible for the care of a child - to engage in sexual conduct “which would impair or debauch the morals of the child.”
It is a third degree crime for another person who engages in sexual conduct with a child.
(2) Similarly to above, it is a second degree crime for any person with the legal duty or who is responsible for the care of a child “who causes the child harm that would make the child an abused or neglected child.”
It is a third degree charge for another person who engages in conduct or who causes harm to abuse or neglect a child.
(3) It is a first degree crime if a person permits or causes a child to participate in a sexually prohibited act - or the simulation of a prohibited sexual act - if that person knows or intends that the child engaged in the prohibited sexual act to “be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance.”
(4) It is a crime in the second degree if a person films or 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.
(5) (a) It is a second degree crime if a person by any means - including the Internet:
(i) distributes knowingly any item depicting the sexual abuse or exploitation of a child;
(ii)knowingly possesses any item depicting the sexual exploitation or abuse of a child with the intent to distribute that item; or
(iii) maintains or stores knowingly an item depicting the sexual abuse or exploitation of a child using a file-sharing program which is designated as available for searching by or copying to one or more other computers.
The State is not required to submit proof that any item depicting the sexual abuse or exploitation of a child has been viewed, transmitted, copied or searched by other user(s) of a file-sharing program - or by any other person. It is not a defense for a defendant to claim they did not intend to distribute the item to another user of the file-sharing program - or to any other person.
The State is also not required to prove the defendant was aware the item depicting the abuse or sexual exploitation 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.
There will be a mandatory minimum of 10 years of imprisonment if a person under this subparagraph is found to have been involved with 25 or more items depicting the abuse or sexual exploitation of a child. The mandatory minimum 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.
Any person convicted of a second or subsequent offense will be sentenced to an extended form of punishment as set forth in N.J.S.2C:43-7.
(b) It is a third degree crime if a person knowingly possesses, views knowingly or has under his control knowingly - through any means, including the internet - an item depicting the abuse or sexual exploitation of a child.
Anyone convicted of possession 100 or more items depicting the abuse or sexual exploitation of a child will be sentenced to prison - unless, in rare circumstances - the character or condition of the defendant would determine that imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
A person convicted of a second similar offense under these statutes will be sentenced to an extended term of imprisonment.
(6) If a person depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act appears in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction is presumed to be under the age of 18 shall be rebuttably presumed to be under the age of 18. It is not 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.DEFINITIONS USED IN THESE STATUTES
Child: any person under 18 years of age.
Distribute: offer, advertise, share, display, exhibit, present, disseminate, circulate, publish, deliver, mail, trade, lend, provide, give, manufacture or use the internet to make available - whether there is money exchange or not. Distribute also includes an agreement/attempt to distribute.
File-sharing program: computer program, software, application or operating system that allows a computer user 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. "File-sharing program" also includes - but is not limited to - a computer program, software, application or operating system that enables participation in a peer-to-peer network.
Internet: The international computer network of federal and non-federal interoperable packet switched data networks.
Item depicting the abuse or sexual exploitation of a child: 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 depicts a child engaging in a prohibited sexual act or in the simulation of such an act.
Peer-to-peer network: A connection of computer systems through which files are shared directly between the systems on a network without the need of a central server.
Prohibited sexual act:
- (a)Sexual intercourse
- (b)Anal intercourse
- (i)Nudity, if depicted for t 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: Is not limited to computer generated images.2. Aggregation
For aggregation purposes:
3. Defenses to Endangering Welfare of Children: Abuse and Molestation of Children, Possession or Distribution of Child Pornogrpahy
Each depiction of the abuse or sexual exploitation of a child shall be considered a separate item.
Each individual act of distribution of an item depicting the abuse or sexual exploitation of a child shall be considered a separate item.
Defenses against charges of child endangerment, abuse or molestation of children, possession or distribution of child pornography are as much emotional as they are technical. These cases are always complicated and the consequences can be severe.
Some of the points that come up in child endangerment cases include:
Evidence of child pornography was found through an illegal search or seizure (procedural defense involving the suppression of evidence)
Defendant did not actually possess the pornography (maybe it was on a shared computer and downloaded by someone else)
Defendant did not intentionally possess the pornography (maybe they accidentally clicked on something, which caused the pornography to download before they could backtrack)
Entrapment (defendant was induced by law enforcement to download child pornography when they would not have downloaded it otherwise)
Mental condition (defendant should receive treatment rather than incarceration because they are addicted to child pornography)
For any sort of sex offense against a child, the credibility of the accusation can play a big role. Children may misinterpret what is happening due to their lack of maturity, and adults who report child abuse may have an ulterior motive for making an accusation (such as getting an advantage in a child custody dispute).
Tara Breslow-Testa is the experienced New Jersey child endangerment lawyer you want by your side when faced with this process and to be sure your rights are protected. Charges of possession or distribution of child pornography can be very technical, and it’s important to have an attorney who understands the nuances of reproduction and file sharing and other definitions under this statute.5. Penalties
The penalties for felony-level child endangerment offenses in New Jersey include:
- Ten or more years in prison for first degree offenses.
- Five to 10 years in state prison for second degree offenses.
- Three to five years in prison for third degree offenses.
Monmouth County child endangerment attorney Tara Breslow-Testa has more than two decades of experience fighting allegations related to endangering welfare of children.
For more information about Endangering Welfare of Children: Abuse and Molestation of Chilren, Possession or Distribution of Child Pornography, contact Tara Breslow-Testa at 732 784-2880.