Supreme Judicial Court (July 31, 2008)
Reckless endangerment of a child, General Law c. 265, § 13L, can be applied to countless situations where a defendant's behavior creates a "substantial and unjustifiable risk" of serious bodily injury to a child and is not specific to physical and sexual abuse.
Upon realizing a police officer was attempting to pull him over, the defendant sped away leading the police on a high-speed nighttime chase. Unbeknownst to the police, the defendant had his three year old daughter in the car with him at the time. The defendant's car reached speeds in excess of twice the speed limit and traveled over unpaved roadways that were narrow, covered with pot holes, and contained sharp turns. The chase ended only after the defendant drove over an embankment and several hundred yards into the woods, where he fled on foot (with the child) with the police in pursuit.
The defendant was subsequently arrested and charged with several motor vehicle offenses as well as reckless endangerment of a child in violation of G.L. c. 265, § 13L, due to the fact that he had his three year old child with him at the time of the chase. The defendant was convicted of reckless endangerment of a child and he appealed challenging the constitutionality of the statute, claiming that it is vague and overbroad as applied to the circumstances of his case.
Reckless endangerment of a child. General Laws c. 265, § 13L provides in relevant part:
"Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished by imprisonment in the house of correction for not more than 2 1/2 years.... "
The defendant argued that the statute was intended to apply to a person whose conduct exposed a child to (or failed to protect a child from) the substantial risk of serious injury only from physical or sexual abuse, and not from other sources of harm. He further contended that if his conduct was determined to constitute reckless endangerment under the statute, then the statute was unconstitutionally vague in that it failed to provide adequate notice of that consequence, and sufficiently explicit standards for its application. The SJC disagreed ruling that the statute was not vague and the due process notice requirement was met in this case because the defendant's behavior created the type of "substantial and unjustifiable risk" of serious bodily injury to a child that any person of common intelligence would understand to be well within the boundaries of the statute's prohibition.
The defendant further argued, however, that, even if the statute provided him adequate notice, it failed to provide sufficient guidance with respect to its enforcement. He suggested, for example, that any person driving an automobile in excess of the speed limit with a child in the vehicle could be subject to prosecution under this interpretation of the statute, and that such a broad reach opens the statute to arbitrary and discriminatory enforcement. The Court disagreed reasoning that there are a number of explicit requirements set forth in the statute that appropriately limit such possibilities. First, the conduct must create a "substantial risk" of "serious bodily injury," that is, a risk "of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." G.L. c. 265, § 13L. The risk must be a good deal more than a possibility, and its disregard substantially more than negligence. In addition, the harm at risk must be of a very serious nature, defined as injury "which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death." G.L. c. 265, § 13L.