Unlawfully Dealing with a Child

By Mark David Blum, Esq.

In many ways ours is a society that has completely lost its mind when it comes to dealing with children. We have tried to childproof the world and taken away from children many of the joys and fun that we old folks once enjoyed. Most male adults I know wont have anything to do with children, refuse to be alone with them, or refuse to even have children. Myself, I would not even drive my daughter’s babysitters home unless I had 2 witnesses in the car with me. It is just too dangerous to be around other people’s children any more.

In the course of a recent trial, I have come to learn that our laws have come to the point where the normal bounds of parental authority have been usurped to where innocent innocuous behavior has become criminalized. Consider this situation: It is Thanksgiving or any one of a plethora of reasons family and friends would gather at a table. Imagine at the table are you and your spouse, your children, friends and their children, and perhaps your siblings or parents. One of your own children, under age 21 asks for some of the wine that is being poured freely at the table. Being a good parent and trying to teach your children to respect alcohol, you consent to your own child being poured a small glass of wine. Because however, your Uncle Eddie is seated closer to your child than are you, you ask Uncle Eddie to pour the wine for your child. Uncle Eddie is headed to jail if he offers this single act of assistance.

Pursuant to New York’s Penal Law §260.20(2), anybody who is not a parent or guardian of a child who gives a child alcohol is guilty of a class A misdemeanor. There is no exception in the law for parental consent, knowledge, and encouragement. As a prosecutor told the judge, if the legislature wanted there to be an exception, they would have so written. Today, a man is on trial in part because he did just what is mentioned above. A child requested some wine with a meal. A parent consented. An adult seated next to the child was asked to pour the wine purely for convenience sake. That adult is now facing a jury. I will save my opinions about New York’s legislature and its closed minded approach to how we should be dealing with children. Ours is a nation that has come to where we have elevated children to the level of being so precious and so in need of protection that we create these chokehold laws supposedly for child safety.

Of course we do not want strangers giving alcohol to our children. That is a decision that only I as a parent should be able to make. Alcohol is probably the most dangerous drug in our society and it is not a good idea that persons not trusted with the supervision and support of children be offering them alcoholic beverages.

At the same time, the law should not be able to reach into the privacy of a family meal and punish those who do what the parent can lawfully do and who do so at the parent’s request. Pouring a glass of wine for a child because a parent asks you to so the parent does not have to get up and walk all the way around the table seems reasonable and poses no threat to the child’s health, safety, or welfare. The child was going to get the wine anyway. Nothing is gained by punishing another adult who acts en loco parentis.

New York’s government needs to seriously rethink and reconsider how it deals with this issue. Putting people in prison, giving them criminal records, and having them forever tainted with the stain of having harmed a child with alcohol is the wrong approach to a common situation. The law needs to be amended to include a provision for parental consent or which somehow recognizes innocent behavior. If a parent does not object to the child having alcohol, then the innocent pourer should not be at the mercy of the criminal justice system. To make the pourer a criminal under these circumstances is an abuse and stretch of the law beyond its rational boundaries.

There may be a million good reasons we do not want anybody but parents or guardians to serve children alcohol. I concur that the decision belongs with the adult responsible for the child. But there needs to be some breathing room between the parent and the actual pouring act. We need to allow our uncles or sisters or friends to be able to act on behalf of consenting parents without fear of criminal retaliation. I am not advocating for abdication of responsibility. Instead I argue that there must be room to accommodate the wishes of the parent.

Giving a taste of your beer to your 20 year old nephew in full view and knowledge of his parents can result in you being sentenced to up to a year in jail, 3 years probation, and a $1,000.00 fine is a price too high to be paid. It is criminal to be a good guest, a friendly helper, or just a friend. There are too many overzealous prosecutors out there who see pouring as an act intending to prime the pump so to speak; arguing the giving of alcohol with full parental knowledge is a step in the direction of reducing the child’s defenses for some kind of prurient intent. There is no defense to the act. You cannot defend yourself saying “but the parents knew and consented.” The judge at your trial will say “too bad”.

Don’t think for a moment that this cannot happen to you. Share alcohol with your child and have someone else pour it … and then let your child share the tale with a mandatory reporter such as a teacher and the pourer will be facing the full wrath of the law. It matters not if the child is 10 or 20 years old. The crime occurs when anybody other than the parent engages in the act of pouring itself.

The real crime victim is society itself. If we allow parents to pour alcohol for their children, then we have to have room for those who act on behalf of the parents. The law must be changed or more innocent people will be deemed criminals for no good reason. In its’ present form, the law is just one more reason to stay away from other people who have children.

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