Revised to December 1, 2007 (modified June 12, 2009)
Subsection (a) (1) of § 53-21 has long been interpreted as having two parts, commonly called the "situation" prong and the "act" prong. See, e.g., State v. Owens, 100 Conn. App. 619, 635 n.12, cert. denied, 282 Conn. 927 (2007). These two parts proscribe "two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being." (Citations omitted.) State v. Dennis, 150 Conn. 245, 250 (1963). "Although both parts of the statute are intended to protect children from predatory and potentially harmful conduct of adults, the two parts nonetheless are directed at different kinds of harm to children." State v. Payne, 240 Conn. 766, 774 (1997). The court's instruction must be limited to that portion of the statute that was charged. State v. James, 211 Conn 555, 583 (1989).
"[T]he first part of § 53-21 prohibits the wilful creation of a 'situation' likely to impair the health of a child and thus encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible." State v. Payne, supra, 240 Conn. 774.
The elements under the situation prong are 1) the defendant's conduct was wilful or unlawful, 2) the defendant created, acquiesced in or was deliberately indifferent to a situation that was likely to injure a child; and 3) the child was younger than sixteen years of age at the time. State v. Eastwood, 83 Conn. App. 452, 475 (2004), cert. denied, 286 Conn. 914-15 (2008). As for the second element, the statute lists three types of injuries: to "the life or limb" of the child, to the health of the child, or to the morals of the child. The court should instruct the jury on only the type or types of injuries alleged and supported by evidence. State v. Burton, 258 Conn. 153, 162-63 (2001) (trial court improperly read entire statute).
The act prong
The act prong is limited to protecting the bodily integrity of a child. Thus, the act has to be directly perpetrated on the person of the child. State v. Schriver, 207 Conn. 456, 466-68 (1988).
The elements under the "act" prong are: 1) the defendant performed an act that was likely to impair the health or morals of a child, 2) the defendant had a general intent to perform such act, and 3) the child was less than sixteen years of age at the time of the incident. State v. Cansler, 54 Conn. App. 819, 839 (1999); see also State v. McClary, 207 Conn. 233, 240 (1988) (the intent required is only the general intent to do the act; no intent to harm the child is required).
In a challenge to the constitutionality of this section based on vagueness, the Supreme Court, in State v. Schriver, supra, 207 Conn. 456, held that it was facially vague because it "fail[ed] to articulate a definite standard for determining whether the conduct of the defendant in this case is permitted or prohibited." The focus of the statute was not "measurably narrowed by the phrase 'likely to impair.' In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral predilections and personal predictions of likely harm." Id., 461-62.
The Schriver Court imposed the following gloss on the statute: "if the risked impairment is to the child's health, [the act prong] proscribes 'deliberate, blatant abuse' that imperils the child's physical, rather than mental, well-being. If the risked impairment is to the child's morals, [the act prong] proscribes acts performed 'in a sexual and indecent manner.'" State v. Kulmac, 230 Conn. 43, 64 n.15 (1994); see also State v. Zwirn, 210 Conn. 582, 588 (1989) (for an act of physical contact to be likely to impair the morals of a child, the act must be committed in a sexually indecent manner).
Subsection (a) (2) was added by Public Act No. 95-142. It imposes punishment on "any person who has contact with the intimate parts . . . of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child." This subsection "made express in its terms what [the Supreme Court] previously had defined . . . as conduct constituting risk of injury to a child." State v. James G., 268 Conn. 382, 408 (2004). In other words, this new subsection did not create new liability because such acts were already punishable under the act prong.
The legislative history of Public Act No. 95-142 includes the following: "[W]hat the first part of the bill deals with is the change in the definition of risk of injury to a minor, and we have a, separating into sections that deal with a, a sexual component and a non-sexual component, so that the offense can be more carefully delineated." 38 S. Proc., Pt. 5, 1995 Sess., pp. 1768-69, remarks of Senator Looney.
Although this new subsection separated out explicitly sexual contact, the Schriver gloss remains on the "act" prong of subsection (a) (1), which is not limited to physical touching of the minor's private parts. A defendant who deliberately and improperly touches the private parts of a minor violates § 53-21 (a) (2), whereas conduct that is perpetrated on the person of the child in a sexual and indecent manner is a violation of subsection (a) (1). See State v. Burton, 258 Conn. 153, 159 (2001) (defendant held child in car, using graphically obscene language, and attempted to kiss her and undress her).
Intimate parts. The definition of "intimate parts" in § 53a-65 is specifically incorporated by the statute. The definition of "sexual contact" from § 53a-65 can properly be applied because the phrase "contact with the intimate parts . . . in a sexual and indecent manner" "cannot qualify as anything other than 'sexual' contact." State v. James G., 268 Conn. 382, 415 (2004).
Health. As mentioned above, under the "situation" prong of § 53-21 (a) (1), injury may occur to "life or limb," morals, or health. "Health" in this context has been interpreted to include the mental health of a child, because if it were limited to physical health, then "life or limb," which is ordinarily understood to mean physical condition, would be superfluous. State v. Payne, 240 Conn. 766, 772 (1997).
Under the "act" prong, which only prohibits acts likely to impair health or morals, a risk of injury to a child's mental health, with no risk to the child's physical health, is not within the meaning of 'health'" State v. Kulmac, 230 Conn. 43, 72-73 (1994); State v. Schriver, 207 Conn. 456, 466-67 (1988). Because of the similar wording, this is presumably also true of "health" in § 53-21 (a) (2).
Morals. "[I]njury to morals in the first part of § 53-21 is not limited to morals put at risk by indecent sexual contact with private parts." State v. Payne, 240 Conn. 766, 782-83 (1997). In Payne, the Court held that it was proper to instruct the jury to apply community standards to determine whether a situation would pose a risk of injuring a child's morals. Id.
Likely. "The common understanding of the term 'likely' . . . ordinarily conveys a degree of certitude as to realization that is in conformity with a definition of 'probable,' but that counsels against an understanding of its meaning as merely 'possible.'" State v. Romero, 269 Conn. 481, 492 (2004).
Lesser included offenses
Risk of injury to a minor under § 53-21 (a) (2) has been held to be a separate offense from sexual assault in various degrees. State v. Alvaro F., 291 Conn. 1, 7-15 (2009) (4th degree); State v. Stephen O., 106 Conn. App. 717, cert. denied, 287 Conn. 916 (2008) (3rd degree); State v. Bletsch, 281 Conn. 5, 28-29 (2007) (2nd degree); State v Rivera, 84 Conn. App. 245, 248-50, cert. denied, 271 Conn. 934 (2004) (2nd degree).
Promoting prostitution under § 53a-86 is a separate offense from risk of injury to a minor. State v. Aldrich, 53 Conn. App. 627, 635-36, cert. denied, 250 Conn. 909 (1999).
Confidentiality of the complainant's name and address
General Statutes § 54-86e provides that the name, address and other identifying information of a victim of risk of injury are confidential. These instructions refer only to "the child" or "the minor." The court may use initials or some other identifier when necessary to refer to the complainant
Attempt to commit risk of injury to a minor is a cognizable crime. State v. Sorabella, 277 Conn. 155, 172-74, cert. denied, 549 U.S. 821, 127 S.Ct. 131, 166 L.Ed.2d 36 (2006).
The Connecticut Supreme Court held
that General Statutes § 53-21 is concerned only with the age of the victim and,
as a result, criminalizes certain acts when the victim is under sixteen years of
age. State v. Jason B., 248 Conn. 543, 564-65, cert. denied, 528 U.S.
967, 120 S.Ct. 406, 145 L.Ed.2d 316 (1999). As such, the defendant's age is
irrelevant to determining criminal liability. Id., 565.