Middle School Guidance Counselor Use of Instagram and the New Jersey Child Endangerment Statute

In this case the defendant, a senior at a private charter school in Camden city received an Instagram message From the middle school guidance counselor at the same school. The defendant filed a motion to dismiss the prosecution as being “de minimus “ as per N. J. S. A. 2C:2- 11 D and C.


The defendant argued the victim was 17 years old and eight months at the time the message was received and that the text message was a joke. The defendant argued that this was a case of overzealous prosecution by the Camden County prosecutors office. The state calm in opposition argued that the defendant Instagram text message was not a joke, was not a example of an overzealous prosecution and that the defendants conduct at the time as a guidance counselor requesting a student to send him a picture of her breast was inappropriate.


The trial court found that the victim, regardless of age was a protected class under the New Jersey child endangerment statute, even by a few few months.  The statute defined under age as 18.   The trial court determined that this case and these facts are not “so trivial that it is unlikely ever to be prosecuted or have motivated the legislature to an act a law “.  Factors to be determined if there is a “risk to society caused by the defendants conduct “include ….the facts and circumstances surrounding the offense, the existence of contraband, the amount in controversy, the use of weapons, and or any threats.


Additionally the court also look to the following additional factors concerning the defendant: the defendants background experience character and whether he or she knew or should’ve known that the wall was being violated, the defendants knowledge of the consequence of the conduct, the circumstances surrounding the offense, the harm or evil caused by the conduct, the impact on the violation to the community, seriousness of punishment, motives of the prosecuting office, and any other relevant information.


The court then turns to New Jersey child endangerment statute, defined in the criminal code at 2C: 24-4A1.

The pertinent section identifies any person who engages in conduct who causes harm as described in this paragraph Shelby guilty of a crime of the third degree and a child is defined as any person under the age of 18. The court found the defendants conduct does not fall under subsection A of the dead minimus statute because it sound that a school guidance counselor‘s request for a child to photograph her breast is not within the customary license or tolerance for the community. In addition under subsection B the trial court found the defendants conduct is the very conduct that the legislature in tended to protect victims from. The court summarily Dismissed the defendants argument that because the child was 17 years and 8 months old the legislature did not envision protecting that individual. A court turn to the amendment of the child endangerment statute from 16 to 18 years old and acknowledge that 18 years old was precisely the age of prohibition. Accordingly any age they’re under is the very age envisioned by the legislature. The court also some really dismiss defendants argument his conduct was a “modern day cat call or joke. The court determined that the defendants conduct was neither couched in a sense of humor or a cat car. The court determined it was made by an adult male to an underage female based on his placement in the school hierarchy. The use of Instagram in this matter by an adult male sent to a child so wait for the purpose of seeking pictures of the child breast is unequivocally sexual conduct within the meaning of the child endangerment statute 2C: 24-4.


The court also turn to other decisions that have made illegal juveniles distributing nude photographs of other juveniles as illegal conduct. The court also consider the request for the photographs as specific conduct that would impair or the box the morals of the child, any average child in the community. The court also did not appreciate the defendants attempt to Minimize and or trivialize the gravity of his message to and under age child i.e. solely for the purposes of obtaining photographs. A message from the adult guidance counselor is the very essence of pairing with the biting the morals of an average 17-year-old child.


The court goes on to dismiss the defendants character in contacts as a message as a basis for having the charges dismissed under this code section. The court found, if true, the defendants request for a sexual conduct request for photographs to be the very essence of that which should be protected in the school setting regardless of the defendant prior conduct.

At Hark and Hark we handle all types of criminal matters including sex offenses such as this. If you have any questions please call us and or email us or visit our website at your first opportunity.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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