Another Conviction Overturned Because of Confusing and Erroneous Jury Instructions with The Child Endangerment Jury Charge.

The New Jersey law when it comes to sexual offenses is extremely confusing even for the experienced New Jersey criminal defense attorney.  The law and jury charges that a jury must decipher during a sexual assault trial is some of the most difficult law to understand, and can rival even some complicated tax or security laws.

Much of these sexual offender laws were model charges that were formulated by feminist organizations, which some believe, made the laws so confusing and difficult that most jurors simply give-up and convict, not based on the law and facts of the case, but rather, on the premise that nobody likes someone charged with a sexual offense, especially, when it is against women, children or minors.  As Aye Gruber a law professor from the University of Iowa wrote in a law review article in the Washington Law Review Association titled: “Rape, Feminism, and the War on Crime”

“Over the past several years, feminism has been increase-ingly associated with crime control and the incarceration of men.”

In a recent case, State v. McInerney, the appellate division reversed the conviction of a baseball coach for child endangering because the instructions to the jury were flawed.  In this case the Monmouth County Prosecutor’s Office charged Mr. McInerney with second degree child endangering.  In order to be convicted of the second degree charge the state must prove beyond a reasonable doubt that Mr. McInerney had “a legal duty for the care of a child or who assumed responsibility for the care of a child.” N.J.S.A. 2C:24-4a. 

In this case the appellate division held that the jury instructions did not properly define the meaning of “teaching staff member or other employee.”  The appellate division wrote, “... the judge effectively directed the jurors that a school employee, even one without any responsibility for the care of the child, was included in the definition of parent or guardian along with those who have assumed responsibility for the care of a child.”  This instruction was in conflict with the well settled law set forth in State v. Galloway, 133, N.J. 631 (1993)

However, this case did not hold the endangering statute unconstitutional as being vague.  As the model jury charge is currently written, a jury could decide that the defendant engaged in sexual conduct which would impair or debauch the morals of the child, or causes the child harm that would make the child abused or neglected child, as defined in Title 9 of the child protective statutes, N.J.S.A. 9:6-1. 

     This issue was directly addressed in the federal third circuit case in Stubbs v. Attorney General, 452 F.3d 251 (3d. Cir. 2006)  In that case the Third Circuit held that  N.J.S.A. 2C:24-4(a) is vague and ambiguous on its face since without a specific finding by the jury whether they are finding guilt under the sexual component or neglect component there is no way of knowing what the jury is deciding beyond a reasonable doubt.

As the Third Circuit wrote:

To repeat, N.J.S.A. 2C:24-4(a) provides for conviction of a person who either (a) “engages in sexual conduct

which would impair or debauch the morals of the child”

or (b) “causes the child harm that would make the child an abused or neglected child as defined in

[state protective-welfare statutes].”  A conviction could lie under this statute for “willfully failing

to provide proper and sufficient food.” for a child pursuant to N.J.S.A. 9:6-1, one of the enumerated protective-welfare statutes.  This offense would hardly constitute “sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A).  Stubbs,452 F.3d at 255

For the time being there appears to no end in-sight for this confusing law and jury instructions.

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