The news traveled quickly. A forty-five pound, nineteen year old boy was found scavenging garbage for food near his suburban home.1 The boy’s adoptive parents had restricted his diet so drastically that he subsisted primarily on peanut butter, crackers, and wall-board.2 The incident caused many people to take notice and sparked public interest in the application of laws enacted to protect children. The problem is not an isolated one; across the nation numerous reports are made, on a daily basis, involving scenarios where children are put at risk by those who are responsible for protecting them. Illinois is not an exception to this trend. On November 10, 2003, a man near Belleville was arrested and charged with child endangerment for keeping his sixteen-month old daughter outside for twelve hours, in near freezing conditions without a coat.3
In light of the reports of incidents similar to those described above, the Illinois Legislature has adapted the child endangerment statute in response to these problems by broadening its scope, thus increasing applicability and accountability for those who violate it by placing children in danger. The courts have responded to the changes made by the legislature in a positive manner, solidifying the legislature’s objective to protect children who cannot protect themselves. Now it is important for prosecutors and law enforcement officials across the state to utilize this valuable tool to hold people accountable for endangering the well being of a child.
II. Legislative Changes
Illinois enacted a modified version of the Child Endangerment statute in September, 1993.4 The prior statute was enacted as a part of the Wrongs to Children Act.5 The burden of proof was higher under the original statute, requiring the state to not only show "actual endangerment" but also that the defendant had either "care or custody" of the child.6 This narrow language virtually excluded anyone, other than the parents of the child, from being convicted for any act involving the endangerment of a child.
The 1993 amendment left intact the substance of the prior statute and broadened its scope in two major ways. The first alteration established that "any person" may now be held accountable when he or she places, or causes a child to be placed, in a situation where the child’s health or well-being is at risk.7 The prior statute only included accountability for those deemed to have "care or custody of any child," which limited applicability to only a few individuals.8 Under the former statute individuals who may have spent a significant amount of time with a child, but who did not technically have "custody" or were not predominant caregivers for the children, could not be held accountable for child endangerment. The second major change made to the statute involved changing the age of the child-victim from fourteen years, to eighteen years old.9 The earlier statute was only applicable when the victim was age fourteen or younger, even though children are traditionally dependent upon their caregivers until they reach the age of eighteen years. The change encompasses the entire span of dependency for children, holding adults responsible for maintaining the care and safety for all children up until the age of eighteen.
In June 2002, a rebuttable presumption was added to the statute that any person who leaves a child six years of age or younger, unattended in a motor vehicle for more than ten minutes has committed a Class A misdemeanor.10 The statute further defines "unattended" as either not accompanied by someone fourteen years or older, or if accompanied by someone older than fourteen years the child must be within sight of that person.11 This addition to the statute was timely enacted during rash of incidents, highlighted by the media, involving parents who left their children unattended in vehicles in dangerously high temperatures for an extended period of time.12
The statute provides that a conviction is considered a Class A misdemeanor and the sentence shall include, but shall not be limited to, the following: a fine of not less than $500 and at least twenty-five hours of community service.13 It is also recognized that multiple counts of the statute (such as having more than one child involved in the offense) or multiple convictions under the statute can carry a stricter penalty of a Class 3 Felony. If an individual is convicted of the felony offense, he or she may be sentenced to a term of imprisonment of no less than two years and a maximum of ten years.14
This allows judges to determine the appropriate sentence depending on the circumstances and the severity of the event. The legislature also included a subsequent section to the statute that provides a probation alternative (a period of no less than two years) for parent who is found guilty or decides to plead guilty to the offense.15
The legislature has enacted a straight-forward, stringent child endangerment statute for the courts and law enforcement officials to employ against those who compromise the safety and well-being of a child. Thus far, Illinois courts have recognized the changes made in the statute and have responded in accordance with the legislature’s intent by holding violators accountable for their actions.
III. People v. Melton: An Application of the Child Endangerment Statute
The facts of the case set forth one of the most egregious scenes of child endangerment in Illinois history. On February 1, 1994, police received a tip that drugs were being sold out of a Chicago apartment.16 When the officers arrived to investigate the tip, they met with Maxine Melton, a resident of the apartment.17 Melton assured the officers that no drug activity had occurred in her apartment and allowed them to look about the apartment to verify what she had told them.18
Stepping into the small apartment, officers discovered two small children huddling next to a radiator, underneath a broken window.19 The officers attempted to ascertain, from the three adults present in the apartment, who was responsible for the trembling children. Melton told the officers she was not responsible, and she did not move them because they were not her children.20 Upon further investigation, it was determined that there were a total of eight adults and nineteen children living in the small first floor apartment. The children ranged in age from seventeen months to fourteen years. 21
The children were all dressed in dirty underwear or diapers, and had not been bathed for a number of days. They were found sitting on the floor, which was covered with cockroaches and debris. Strewn about the apartment were several mattresses, stained blankets, and a few pillows.22 The bathroom was filthy; no cleaning supplies or personal hygiene products could be found anywhere.23 The kitchen floor was covered with garbage, grease and bones.24 Inside the kitchen, a fourteen year old boy was found attempting to clean the garbage from the floor with a snow shovel.25 The little food that was found in the refrigerator was rotten or stale, and infested with cockroaches.26 The apartment was without smoke detectors, there were holes in walls where electrical cords were sticking out, and paint was chipping and peeling from the walls.27 When officers were asked to describe the condition of the apartment they asserted it was "barely fit for animals."28
The trial court found six of the eight adults living in the apartment guilty of sixteen counts of child endangerment.29 The defendants appealed claiming the state was required (and had failed) to prove actual infliction of personal injury to the children.30 The court held that even though actual injury is required to show "injuring the health of the child," it is not a requirement for the showing of "endangering the life" of a child.31 The court reasoned that the defendants were charged for the alternative specified in the statute of "permitting a child to placed in a situation where the child’s life may be endangered."32 Any one of the actions listed and specified in the statute would support convictions under the child endangerment statute.
The defendants next asserted the state failed to prove they acted "willfully" as required under the statute.33 Defendants contend that no evidence was presented to the court to show they were "consciously aware" that the conditions of the apartment were "practically certain" to endanger the children’s health.34 The court held that even though the state did not provide direct proof of the requisite mental state of the defendants, there was an adequate amount of circumstantial evidence provided which proved defendants made a conscious decision to allow the children to live in the apartment in its "abysmal condition."35 The court also explained that there was no evidence shown to support the contention that the defendants were incapable of appreciating the dire condition of the apartment, or that the defendants were unable to take action to improve the living conditions therein.36 The court further held the conditions found in the apartment had little to do with economic impairment, as was claimed by the defendants, stating the circumstances were allowed to develop and "[were] a result of the defendants’ action and inaction."37 The Appellate Court upheld the lower court’s decision and affirmed the convictions of child endangerment.38
VI. Recommendation for Increased Enforcement
An area that may be overlooked (as to child endangerment charges) by prosecutors and law enforcement officers are situations involving domestic violence, especially when the children are present in the home during the violent act. Exposure to violence of this nature may not only place the children in physical danger, but may also be emotionally devastating to the children who witness the abuse. The aggressor is often arrested and charged with only domestic assault, even though a child endangerment charge may also be appropriate. When one spouse is charged with domestic assault, it is not uncommon for the victim/spouse to refuse (or be reluctant) to testify at trial, resulting in a dismissal of the charge. The abuser escapes all consequences for his or her behavior, returns to the home, and the cycle of abuse starts all over again.
A recent telephone survey of prosecutors conducted by the National District Attorneys Association revealed that 78% of respondents agreed that the presence of children provides an added incentive to prosecute domestic violence cases.39 Of the prosecutors polled, those in San Diego report creatively attempting to find ways to enhance sanctions for individuals charged with domestic assault.40 They have made it a policy to charge domestic assault offenders with child endangerment if a child is found to be involved, or around the violent act in any way.41 They also require that anyone convicted of child endangerment and sentenced to probation complete a year long treatment program focusing on child abuse and the effects thereof.42 Concurrently charging offenders for domestic assault and child endangerment will increase awareness that abuse within the home does not only effect the adults in the relationship, but also negatively impacts the children living in the home.
In Minnesota, prosecutors successfully charged defendants with child endangerment when the accused possessed narcotics and firearms in an area readily accessible to children.43 In Iowa, a man was charged with child endangerment after he attempted to evade police in his pickup truck which contained several, unrestrained children.44 The courts concluded that the defendants’ acts compromised the safety of the children in the situations described above and warranted convictions for child endangerment.
Illinois has successfully codified a strong foundation to hold adults responsible for jeopardizing the health and safety of children in a variety of settings. The courts have supported the legislature’s intent by recognizing the changes made in the statute and applying them liberally to protect the interest of children. Prosecutors and law enforcement officials need to utilize this effective resource and charge adults with child endangerment anytime a child’s safety is compromised.
1 Jane Fritch, Child Welfare Agencies Don’t Fare Well in Study, Chi. Trib, Nov. 2, 2003.
3 Carolyn Smith, Father Charged with Endangering Child, Belleville News- Democrat, Nov. 11, 2003. The man was seen wandering on the railroad tracks, carrying his daughter who was dressed only in a pink Halloween cat costume.
4 720 Ill. Comp. Stat. §5/12-21.6 (2003).
5 People v. Melton, 667 N.E.2d 1371, 1376 (Ill. App. Ct. 1996).
6 Id. at 1377.
7 720 Ill. Comp. Stat. §5/12-21.6 (2003).
8 Melton, 667 N.E.2d at 1378.
10 The Criminal Code of 1961 Amendments of 2002, P.A. 92-515, § 5, effective June 1, 2002.
11 720 Ill. Comp. Stat. §5/12-21.6(c) (2003).
12 Lisa Black, Law Will Make Parents Pay for Leaving Kids Alone in Car, Chi. Trib., Jan. 04, 2002.
13 The Criminal Code of 1961 was amended by adding sections 12-21.5, 12-21.6, and 12-22, P.A. No. 88-479, § 10 (codified as amended at 720 Ill. Comp. Stat. §5/12-21.6 (1993)).
15 Id. (codified as amended at 720 Ill. Comp. Stat. §5/12-22 (1993)). The legislature provided: "the court may, without entering a judgment of guilt and with the consent of the person, defer further proceedings and place the person upon probation upon the reasonable terms and conditions as the court may require."
16 People v. Melton, 667 N.E.2d 1371 (Ill. App. Ct. 1996).
17 Id. at 1374.
20 Id. The other two adults present were Gregory Turner (father of one child found in the apartment), and Josephine Melton (grandmother to at least nine of the children living in the apartment).
21 Melton, 667 N.E.2d at 1374.
22 Id. at 1375.
26 Melton, 667 N.E.2d at 1375.
28 Id. at 1374.
29 Id. at 1378.
32 Melton, 667 N.E.2d at 1378.
33 Id. The court also stated "willful conduct is synonymous with knowing conduct" (citing People v. Albarran, 352 NE2d 379 (1976)).
34 Id. at 1378.
35 Id. at 1379.
38 Id. at 1382.
39 National District Attorneys Association, Children and Domestic Violence: Challenges for Prosecutors, 36 Prosecutor. 35 (2002).
41 Id. (citing incidents "when a child: calls 911 to report domestic violence, appears fearful, upset, or hysterical at the scene, is an eyewitness to the incident, is present in a room where objects are being thrown, is in a car during a domestic violence incident, is in the arms of the victim or suspect during an incident.")
43 State v. Matthews, 1994 WL 263314 (Minn. App. 1994).
44 State v. Anspach, 675 NW2d 227 (Iowa 2001).
Melissa A. Burken attends Northern Illinois University College of Law (J.D. Expected May 22, 2004). 2002-2004 Assistant Editor, Northern Illinois University Law Review.