Massachusetts Criminalizes Reckless Endangerment of Children
 
September 19, 2002
 
Paul Lannon - Boston

On September 13, 2002, Governor Jane Swift signed a bill which, for the first time in Massachusetts, criminalizes conduct that results in the risk of serious bodily injury or sexual abuse of children under 18.  The new crime is called "reckless endangerment to children" and is codified at Massachusetts General Laws Chapter 265, Section 13L.  Massachusetts now joins 31 other states that have adopted similar laws.  As the bill's House sponsor, Representative Stephen A. Tobin, noted before Swift's signing: "It's unethical and immoral to place children in a situation where they are at risk of being abused or sexually exploited.  It should be illegal."  The law should have a profound effect on educational and other  institutions working with children.

Senator Marian Walsh (West Roxbury) filed the bill in response to the intense public outcry over recent sexual abuse scandals.  Previously, no law existed to punish criminally the managers or administrators who, despite being in positions of authority, failed to take appropriate measures to protect children from abuse.  The bill received unanimous support in both the State House and Senate. 

Punishes Increased Risk of Harm; Actual Injury Not Required

It is critical for educators and administrators to know that they can now be held criminally responsible for conduct that only increases the risk of abuse to a child, even if no actual injury results.The new law is prophylactic:  its aim is to remove the conditions under which abuse is likely to occur. As the Legislature noted, "[t]hese crimes do not punish a particular injury or outcome, but seek to prevent and penalize the risk that is created."

The new law does not, however, impose strict liability.  To violate the statute, the increased risk of harm must be "substantial" and must constitute a "gross deviation from the standard of conduct that a reasonable person would observe in the situation."  This language is similar to the gross negligence standard applied in many personal injury actions.  In other words, educators and administrators who act reasonably under the circumstances, and even those who make inadvertent errors, will not be subject to this criminal statute.

Punishes Reckless Acts and Omissions

It is also critical to understand that the new law criminalizes both affirmative acts and the failure to act under certain circumstances.  Specifically, the statute punishes whoever (1) "wantonly or reckless engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child," or (2) "wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act."  Acts or omissions are "wanton" or "reckless" within the meaning of the statute if the person is "aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, will result in serious bodily injury or sexual abuse to a child."  Thus, supervisors can be held criminally liable when they recklessly take actions that create a substantial risk of harm to children and when they are under a duty to act -- whether that duty arises by contract, statute or by implication under the circumstances – but recklessly fail to take reasonable steps to alleviate such risk.

Violators Face Imprisonment

Persons found guilty of reckless endangerment to children face up to 30 months imprisonment.  This penalty is far harsher than the related mandatory reporting laws which carry a maximum penalty of a $1000 fine for the failure to report suspected child abuse.

Impact on Educational Institutions

Primary and secondary schools, public and private, will be the most affected because they regularly care for students under 18.  There are also many ways the new law will affect colleges and universities.  For example, post-secondary institutions are at risk to the extent they admit students under 18, employ persons under 18, provide housing for families with children, operate day care facilities, train educators for primary or secondary school, or otherwise involve minors in their classes or programs.

The new law gives educational institutions very little leeway in making employment or admissions decisions that might increase the risk of child abuse.  By passing this law, the Legislature has, in effect, told employers throughout the Commonwealth that they must err on the side of protecting our children.

Accordingly, to avoid criminal liability under this new law, educational institutions are well advised to develop, promulgate and enforce strict policies that address the risk of child abuse in their communities.  Institutions should consider, for example, background, CORI and sex offender registry checks on all staff and faculty.  They should assess what reasonable steps they can take to alleviate the risk of abuse in those areas where they have a duty to act.  They should also consider how best to proceed when they learn of a substantial risk and how relevant information can be brought quickly and accurately to the attention of the institution's decision-makers.

For more information about General Law Chapter 265, §13L and how it affects educational institutions, please contact Paul G. Lannon Jr. or, Jonathan Werner or any other member of the Education Law Practice Group at Holland & Knight LLP, 10 St. James Avenue, Boston, MA  02116, (617) 523-2700.