Felony Murder and Child Abuse: A Proposal for the New York Legislature

Lisa Steinberg\u27s head was hit so hard her injuries matched those of a person who had fallen out of a three-story window. Over the course of three months, investigators believed that Jessica Cortez was beaten numerous times with fists, a ruler, and a belt by her mother\u27s companion who, in addition, sexually abused her. Lisa and Jessica are only two of the many New York City children who have died as a result of child abuse in recent years; at least 126 other children died at the hands of abusive adults in 1988 alone. This alarming and ever increasing statistic demonstrates the significant need for the criminal justice system to protect children from abuse. In the past decade, the annually reported instances of child maltreatment increased dramatically, from 669,000 in 1976 to over 1.9 million in 1985. There is a growing public sentiment, largely triggered by the highly-publicized, tragic deaths of six-year-old Lisa and five-year-old Jessica, that the criminal laws ought to punish more severely those who commit such heinous crimes. Crimes involving child abuse are contained in New York Penal Law section 260.10(1), which declares a person guilty of ‘endangering the welfare of a child’ when ‘[h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a male child less than sixteen years old or a female child less than seventeen years old ...’ This offense, a class A misdemeanor, encompasses a wide range of conduct, including negligence, neglect, malnutrition, dehydration, physical torture, and a pattern of abuse. Because the offense includes active as well as passive activity, and violent as well as non-violent activity, inclusion of it in the felony murder statute may, in some cases, impute too much liability. New York should thus follow the lead of other jurisdictions, which have distinguished different types of child abuse by specifying some as felonies and others as misdemeanors. This Note urges that the New York legislature adopt an \u27aggravated child abuse\u27 statute, and proposes an amendment to the current felony murder statute to include the crime of \u27aggravated child abuse\u27 as an underlying felony to support a felony murder charge. Part II discusses the felony murder rationale and examines its limitations. Part III articulates a new aggravated child abuse statute that should serve as an underlying felony for felony murder in New York. Finally, the Note concludes with legislative recommendations which would make easier the prosecution and conviction of child abusers as well as severely punish child abusers under the proposed statutory amendments