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Contributing to the Delinquency of Minors

CONTRIBUTING TO THE DELINQUENCY OF MINORS

The offense of contributing to the delinquency of minors (CDM) originated in the United States in the 1900s. Colorado enacted the first statute defining CDM in 1903. Since that time, virtually all states have enacted some form of CDM legislation.

CDM is a statutory crime with no precedent in the common law. As a result, its application and elements vary considerably across jurisdictions. In general, CDM statutes make it a crime to "aid, encourage, cause, or allow" a child to become delinquent or neglected by "words, acts, threats, commands, or persuasions." Though usually a misdemeanor, some states grade the crime as a felony. Many statutes define the people who may be prosecuted for the crime as "parents, legal guardians, and any other person having care or custody of the child" (Geis, p. 64). Notably, in the jurisdictions where this language has been interpreted, it has not been construed to exclude strangers. In addition, courts have interpreted this language to include minors, making it possible for a minor to contribute to the delinquency of another minor. Each jurisdiction also has the power to define the age at which majority is reached. Hence, states vary in their definition of a minor though most states establish minors as individuals under the age of eighteen or seventeen.

Delinquent behavior, as defined by the statutes and the case law, falls into one or more of the following categories: (1) violation of laws by a child; (2) conduct by a child that tends to injure his own health or morals or those of another; (3) behavior by the child that displays a risk that the child might become involved in criminal activity. Delinquent behavior covers a broad spectrum, including acts such as truancy, loitering, gambling, purchasing and consuming alcohol, inappropriate sexual conduct, violating curfew ordinances, and associating with known criminals. Similarly, the term "contributing" is broadly defined. A few states, such as Montana, have attempted to enumerate specific acts constituting "contribution," but most states have left the decision to the jury or judge. The de facto practice of relying on judges and juries to constrain and interpret ostensibly vague words such as "tendency," "contributing," and "delinquency" began with the inception of CDM statutes and still continues today, despite serious scholarly criticism of the practice.

Currently, the substantive disagreements among jurisdictions have to do with two major issues: (1) whether the alleged offender's behavior must lead to prohibited conduct by the child; and (2) what level of mens rea (the requisite mental state) is required for a conviction. Since most statutes have been construed as preventive as well as punitive in their purpose, the prevailing view is that a delinquent act is not required. Often buttressed by statutory language covering acts "causing delinquency or tending to cause delinquency," most CDM laws do not make delinquency an element of the crime.

On the question of mens rea, some states only require the intent to do the act charged. In these jurisdictions, ignorance as to the age of the minor or to the existence of the law is no defense. Other states either make some level of mens rea an element of the offense or allow lack of mens rea as an affirmative defense to the crime.

Almost without exception, CDM statutes have been upheld against all legal challenges. Due to the imprecision of the words used in the various laws, opponents of CDM legislation have repeatedly attempted to have such laws declared void for vagueness, arguing that the laws provide inadequate notice and produce inconsistent enforcement. Courts have rejected vagueness challenges, however, based on the view that judges and juries understand the purpose of the law and that the statutory words have been developed sufficiently in the case law to have reasonably accessible meanings (e.g., Williams v. Garcetti ). In addition to vagueness challenges, CDM laws have been challenged unsuccessfully on three other grounds: (1) as substantive due process violations of the rights of parents to raise their children; (2) as violations of the Eighth Amendment prohibition against cruel and unusual punishment; and (3) as violations of the Eighth Amendment prohibition against criminalizing the status of being a bad parent or guardian.

Significantly, discussion of CDM is conspicuously missing in most major criminal law texts. This may be in part because a defendant who can be charged with CDM is also generally subject to prosecution for other offenses covered by sex offense, drug, or accomplice liability laws, which tend to carry much stiffer penalties than CDM.

The American Law Institute takes the view that the offense of CDM should not be continued in the criminal law canon. In lieu of a CDM statute, the Model Penal Code defines the offense of "Endangering Welfare of Children," which covers only a limited range of misconduct solely by people legally responsible for a child's supervision (MPC, § 230.4). In addition, section 230.4 necessitates that the defendant "knowingly endanger" the child, which has been interpreted to require that the actor be aware of her conduct and know of the facts giving rise to her duty of supervision, though it does not require that the actor be aware that her conduct constitutes a criminal offense. Though no American jurisdiction has adopted the Model Penal Code conception without modification, some states have followed the Code's approach by defining the offense as a violation of a legal duty of care, and some jurisdictions that formerly graded CDM as a felony have revised the grade to a misdemeanor.

Pratheepan Gulasekaram

Emily Buss

See also Family Abuse and Crime; Family Relationships and Crime; Juvenile Status Offenders; Juvenile Violent Offenders.

BIBLIOGRAPHY

Davidson, Howard. "No ConsequencesReexamining Parental Responsibility Laws." Stanford Law and Policy Review 7 (1996): 1.

Greenwood, Christine T. "Holding Parents Criminally Responsible for the Delinquent Acts of Their Children: Reasoned Response or 'Knee-Jerk Reaction."' Journal of Contemporary Law 23 (1997): 401.

Geis, Gilbert. "Contributing to Delinquency." St. Louis University Law Journal 59 (1963): 5981.

Geis, Gilbert, and Binder, Arnold. "Sins of Their Children: Parental Responsibility for Juvenile Delinquency." Notre Dame Journal of Legal Ethics and Public Policy 5 (1991): 303.

Ludwig, Frederick. Youth and the Law. Brooklyn, N.Y.: The Foundation Press, 1955.

Weinstein, Toni. "Visiting the Sins of the Child on the Parent: The Legality of Criminal Parental Liability Statutes." Southern California Law Review 64 (1991): 859.

CASES

Powell v. Texas, 392 U.S. 514 (1968).

Vachon v. New Hampshire, 414 U.S. 478 (1974).

Territory v. Delos Santos, 42 Hawaii 102 (Haw. 1957).

State v. Flinn, 208 S.E.2d 538 (W.Va. 1974).

Jung v. State, Wis. 2d 714, 201 N.W.2d 58 (Wis. 1972).

State v. Simants, 182 Neb. 491, 155 N.W.2d 788 (Neb. 1968).

Dabney v. State, 239 S.E.2d 698 (Ga. Ct. App. 1977).

State v. Norflett, 67 NJ 268, 337 A.2d 609 (N.J. 1975).

Williams v. Garcetti, 20 Cal Rptr. 2d 341, 5 Cal. 4t 561, 853 P.2d 507 (Cal. 1993).

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