Under New Jersey law, a person commits lewd acts when he exposes his genitals for a sexual purpose and “he knows or reasonably suspects [that he] is likely to be observed by other non-consenting persons who would be affronted or alarmed.” Lewdness is normally a disorderly persons offense with a maximum penalty of 6 months in prison, but when lewd acts are committed in front of a child under the age of 13, the offense becomes raised to a fourth degree crime with penalty of 6-18 months in prison. N.J.S.A. 2c:14-4.
In addition to carrying more significant penalties than run-of-the-mill lewdness offenses, crimes that are charged as fourth degree lewdness also tend to be charged as third degree child endangerment. This offense, which carries even steeper penalties than fourth degree lewdness (3 to 5 years in prison for child endangerment, as opposed to a maximum of 18 months for lewdness) occurs when a person engages in sexual conduct “which would impair or debauch the morals of a child” under the age of 16. N.J.S.A. 2C:24-4.
The New Jersey Supreme Court addressed the relationship between fourth degree lewdness and third degree child endangerment in State v. Hackett, 166 N.J. 66 (2001). The case involved a man who was charged with both offenses after repeatedly standing nude in the front window of his house, in full view of several children at a school bus stop.
The New Jersey Supreme Court affirmed the defendant’s convictions on both counts. Although the court cautioned that a conviction for fourth degree lewdness won’t automatically sustain a conviction for third degree child endangerment, the court found that the same evidence could be used to prove both offenses, so long as the distinct elements of each crime were satisfied. Disagreeing with the lower court, which had found the defendant’s “mere nudity” insufficient to prove the child endangerment charge, the court found that the jury had a thin but sufficient basis for its guilty verdict. “This was not a case involving a child’s stolen glimpse of nudity,” the court explained, “but instead… repeated instances when the defendant allowed himself to be viewed naked, through an unobstructed window, by girls who were age thirteen and under.” Attracting the children’s attention in such a flagrant and repetitive way, the court found, could have been viewed by the jury as evidence that the defendant sought to debauch the children’s morals. As the court emphasized, the question was not whether the children’s morals were actually debauched, but whether the defendant’s actions amounted to sexual conduct that was likely to debauch the children’s morals.
For more information about lewdness or child endangerment charges, or to schedule a free legal consultation in your case, call me, Anthony N. Palumbo, Union County Criminal Defense Lawyer, at 908-337-7353.