2006 Ohio Revised Code - 2919.22. Endangering children.

§ 2919.22. Endangering children.
 

(A)  No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body. 

(B)  No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age: 

(1) Abuse the child; 

(2) Torture or cruelly abuse the child; 

(3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child; 

(4) Repeatedly administer unwarranted disciplinary measures to the child, when there is a substantial risk that such conduct, if continued, will seriously impair or retard the child's mental health or development; 

(5) Entice, coerce, permit, encourage, compel, hire, employ, use, or allow the child to act, model, or in any other way participate in, or be photographed for, the production, presentation, dissemination, or advertisement of any material or performance that the offender knows or reasonably should know is obscene, is sexually oriented matter, or is nudity-oriented matter; 

(6) Allow the child to be on the same parcel of real property and within one hundred feet of, or, in the case of more than one housing unit on the same parcel of real property, in the same housing unit and within one hundred feet of, any act in violation of section 2925.04 or 2925.041 [2925.04.1] of the Revised Code when the person knows that the act is occurring, whether or not any person is prosecuted for or convicted of the violation of section 2925.04 or 2925.041 [2925.04.1] of the Revised Code that is the basis of the violation of this division. 

(C) (1)  No person shall operate a vehicle, streetcar, or trackless trolley within this state in violation of division (A) of section 4511.19 of the Revised Code when one or more children under eighteen years of age are in the vehicle, streetcar, or trackless trolley. Notwithstanding any other provision of law, a person may be convicted at the same trial or proceeding of a violation of this division and a violation of division (A) of section 4511.19 of the Revised Code that constitutes the basis of the charge of the violation of this division. For purposes of sections 4511.191 [4511.19.1] to 4511.197 [4511.19.7] of the Revised Code and all related provisions of law, a person arrested for a violation of this division shall be considered to be under arrest for operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them or for operating a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the whole blood, blood serum or plasma, breath, or urine. 

(2) As used in division (C)(1) of this section: 

(a) "Controlled substance" has the same meaning as in section 3719.01 of the Revised Code. 

(b) "Vehicle," "streetcar," and "trackless trolley" have the same meanings as in section 4511.01 of the Revised Code. 

(D) (1)  Division (B)(5) of this section does not apply to any material or performance that is produced, presented, or disseminated for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance. 

(2) Mistake of age is not a defense to a charge under division (B)(5) of this section. 

(3) In a prosecution under division (B)(5) of this section, the trier of fact may infer that an actor, model, or participant in the material or performance involved is a juvenile if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the actor, model, or participant as a juvenile. 

(4) As used in this division and division (B)(5) of this section: 

(a) "Material," "performance," "obscene," and "sexual activity" have the same meanings as in section 2907.01 of the Revised Code. 

(b) "Nudity-oriented matter" means any material or performance that shows a minor in a state of nudity and that, taken as a whole by the average person applying contemporary community standards, appeals to prurient interest. 

(c) "Sexually oriented matter" means any material or performance that shows a minor participating or engaging in sexual activity, masturbation, or bestiality. 

(E) (1)  Whoever violates this section is guilty of endangering children. 

(2) If the offender violates division (A) or (B)(1) of this section, endangering children is one of the following: 

(a) Except as otherwise provided in division (E)(2)(b), (c), or (d) of this section, a misdemeanor of the first degree; 

(b) If the offender previously has been convicted of an offense under this section or of any offense involving neglect, abandonment, contributing to the delinquency of, or physical abuse of a child, except as otherwise provided in division (E)(2)(c) or (d) of this section, a felony of the fourth degree; 

(c) If the violation is a violation of division (A) of this section and results in serious physical harm to the child involved, a felony of the third degree; 

(d) If the violation is a violation of division (B)(1) of this section and results in serious physical harm to the child involved, a felony of the second degree. 

(3) If the offender violates division (B)(2), (3), (4), or (6) of this section, except as otherwise provided in this division, endangering children is a felony of the third degree. If the violation results in serious physical harm to the child involved, or if the offender previously has been convicted of an offense under this section or of any offense involving neglect, abandonment, contributing to the delinquency of, or physical abuse of a child, endangering children is a felony of the second degree. If the offender violates division (B)(6) of this section and the drug involved is methamphetamine, the court shall impose a mandatory prison term on the offender as follows: 

(a) If the violation is a violation of division (B)(6) of this section that is a felony of the third degree under division (E)(3) of this section and the drug involved is methamphetamine, except as otherwise provided in this division, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than two years. If the violation is a violation of division (B)(6) of this section that is a felony of the third degree under division (E)(3) of this section, if the drug involved is methamphetamine, and if the offender previously has been convicted of or pleaded guilty to a violation of division (B) (6) of this section, a violation of division (A) of section 2925.04 of the Revised Code, or a violation of division (A) of section 2925.041 [2925.04.1] of the Revised Code, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree that is not less than five years. 

(b) If the violation is a violation of division (B)(6) of this section that is a felony of the second degree under division (E)(3) of this section and the drug involved is methamphetamine, except as otherwise provided in this division, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree that is not less than three years. If the violation is a violation of division (B)(6) of this section that is a felony of the second degree under division (E)(3) of this section, if the drug involved is methamphetamine, and if the offender previously has been convicted of or pleaded guilty to a violation of division (B)(6) of this section, a violation of division (A) of section 2925.04 of the Revised Code, or a violation of division (A) of section 2925.041 [2925.04.1] of the Revised Code, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree that is not less than five years. 

(4) If the offender violates division (B)(5) of this section, endangering children is a felony of the second degree. 

(5) If the offender violates division (C) of this section, the offender shall be punished as follows: 

(a) Except as otherwise provided in division (E)(5)(b) or (c) of this section, endangering children in violation of division (C) of this section is a misdemeanor of the first degree. 

(b) If the violation results in serious physical harm to the child involved or the offender previously has been convicted of an offense under this section or any offense involving neglect, abandonment, contributing to the delinquency of, or physical abuse of a child, except as otherwise provided in division (E)(5)(c) of this section, endangering children in violation of division (C) of this section is a felony of the fifth degree. 

(c) If the violation results in serious physical harm to the child involved and if the offender previously has been convicted of a violation of division (C) of this section, section 2903.06 or 2903.08 of the Revised Code, section 2903.07 of the Revised Code as it existed prior to March 23, 2000, or section 2903.04 of the Revised Code in a case in which the offender was subject to the sanctions described in division (D) of that section, endangering children in violation of division (C) of this section is a felony of the fourth degree. 

(d) In addition to any term of imprisonment, fine, or other sentence, penalty, or sanction it imposes upon the offender pursuant to division (E)(5)(a), (b), or (c) of this section or pursuant to any other provision of law and in addition to any suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege under Chapter 4506., 4509., 4510., or 4511. of the Revised Code or under any other provision of law, the court also may impose upon the offender a class seven suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege from the range specified in division (A)(7) of section 4510.02 of the Revised Code. 

(e) In addition to any term of imprisonment, fine, or other sentence, penalty, or sanction imposed upon the offender pursuant to division (E)(5)(a), (b), (c), or (d) of this section or pursuant to any other provision of law for the violation of division (C) of this section, if as part of the same trial or proceeding the offender also is convicted of or pleads guilty to a separate charge charging the violation of division (A) of section 4511.19 of the Revised Code that was the basis of the charge of the violation of division (C) of this section, the offender also shall be sentenced in accordance with section 4511.19 of the Revised Code for that violation of division (A) of section 4511.19 of the Revised Code. 

(F) (1) (a)  A court may require an offender to perform not more than two hundred hours of supervised community service work under the authority of an agency, subdivision, or charitable organization. The requirement shall be part of the community control sanction or sentence of the offender, and the court shall impose the community service in accordance with and subject to divisions (F)(1)(a) and (b) of this section. The court may require an offender whom it requires to perform supervised community service work as part of the offender's community control sanction or sentence to pay the court a reasonable fee to cover the costs of the offender's participation in the work, including, but not limited to, the costs of procuring a policy or policies of liability insurance to cover the period during which the offender will perform the work. If the court requires the offender to perform supervised community service work as part of the offender's community control sanction or sentence, the court shall do so in accordance with the following limitations and criteria: 

(i) The court shall require that the community service work be performed after completion of the term of imprisonment or jail term imposed upon the offender for the violation of division (C) of this section, if applicable. 

(ii) The supervised community service work shall be subject to the limitations set forth in divisions (B)(1), (2), and (3) of section 2951.02 of the Revised Code. 

(iii) The community service work shall be supervised in the manner described in division (B)(4) of section 2951.02 of the Revised Code by an official or person with the qualifications described in that division. The official or person periodically shall report in writing to the court concerning the conduct of the offender in performing the work. 

(iv) The court shall inform the offender in writing that if the offender does not adequately perform, as determined by the court, all of the required community service work, the court may order that the offender be committed to a jail or workhouse for a period of time that does not exceed the term of imprisonment that the court could have imposed upon the offender for the violation of division (C) of this section, reduced by the total amount of time that the offender actually was imprisoned under the sentence or term that was imposed upon the offender for that violation and by the total amount of time that the offender was confined for any reason arising out of the offense for which the offender was convicted and sentenced as described in sections 2949.08 and 2967.191 [2967.19.1] of the Revised Code, and that, if the court orders that the offender be so committed, the court is authorized, but not required, to grant the offender credit upon the period of the commitment for the community service work that the offender adequately performed. 

(b) If a court, pursuant to division (F)(1)(a) of this section, orders an offender to perform community service work as part of the offender's community control sanction or sentence and if the offender does not adequately perform all of the required community service work, as determined by the court, the court may order that the offender be committed to a jail or workhouse for a period of time that does not exceed the term of imprisonment that the court could have imposed upon the offender for the violation of division (C) of this section, reduced by the total amount of time that the offender actually was imprisoned under the sentence or term that was imposed upon the offender for that violation and by the total amount of time that the offender was confined for any reason arising out of the offense for which the offender was convicted and sentenced as described in sections 2949.08 and 2967.191 [2967.19.1] of the Revised Code. The court may order that a person committed pursuant to this division shall receive hour-for-hour credit upon the period of the commitment for the community service work that the offender adequately performed. No commitment pursuant to this division shall exceed the period of the term of imprisonment that the sentencing court could have imposed upon the offender for the violation of division (C) of this section, reduced by the total amount of time that the offender actually was imprisoned under that sentence or term and by the total amount of time that the offender was confined for any reason arising out of the offense for which the offender was convicted and sentenced as described in sections 2949.08 and 2967.191 [2967.19.1] of the Revised Code. 

(2) Division (F)(1) of this section does not limit or affect the authority of the court to suspend the sentence imposed upon a misdemeanor offender and place the offender under a community control sanction pursuant to section 2929.25 of the Revised Code, to require a misdemeanor or felony offender to perform supervised community service work in accordance with division (B) of section 2951.02 of the Revised Code, or to place a felony offender under a community control sanction. 

(G) (1)  If a court suspends an offender's driver's or commercial driver's license or permit or nonresident operating privilege under division (E)(5)(d) of this section, the period of the suspension shall be consecutive to, and commence after, the period of suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege that is imposed under Chapter 4506., 4509., 4510., or 4511. of the Revised Code or under any other provision of law in relation to the violation of division (C) of this section that is the basis of the suspension under division (E)(5)(d) of this section or in relation to the violation of division (A) of section 4511.19 of the Revised Code that is the basis for that violation of division (C) of this section. 

(2) An offender is not entitled to request, and the court shall not grant to the offender, limited driving privileges if the offender's license, permit, or privilege has been suspended under division (E)(5)(d) of this section and the offender, within the preceding six years, has been convicted of or pleaded guilty to three or more violations of one or more of the following: 

(a) Division (C) of this section; 

(b) Any equivalent offense, as defined in section 4511.181 [4511.18.1] of the Revised Code. 

(H) (1)  If a person violates division (C) of this section and if, at the time of the violation, there were two or more children under eighteen years of age in the motor vehicle involved in the violation, the offender may be convicted of a violation of division (C) of this section for each of the children, but the court may sentence the offender for only one of the violations. 

(2) (a) If a person is convicted of or pleads guilty to a violation of division (C) of this section but the person is not also convicted of and does not also plead guilty to a separate charge charging the violation of division (A) of section 4511.19 of the Revised Code that was the basis of the charge of the violation of division (C) of this section, both of the following apply: 

(i) For purposes of the provisions of section 4511.19 of the Revised Code that set forth the penalties and sanctions for a violation of division (A) of section 4511.19 of the Revised Code, the conviction of or plea of guilty to the violation of division (C) of this section shall not constitute a violation of division (A) of section 4511.19 of the Revised Code; 

(ii) For purposes of any provision of law that refers to a conviction of or plea of guilty to a violation of division (A) of section 4511.19 of the Revised Code and that is not described in division (H)(2)(a)(i) of this section, the conviction of or plea of guilty to the violation of division (C) of this section shall constitute a conviction of or plea of guilty to a violation of division (A) of section 4511.19 of the Revised Code. 

(b) If a person is convicted of or pleads guilty to a violation of division (C) of this section and the person also is convicted of or pleads guilty to a separate charge charging the violation of division (A) of section 4511.19 of the Revised Code that was the basis of the charge of the violation of division (C) of this section, the conviction of or plea of guilty to the violation of division (C) of this section shall not constitute, for purposes of any provision of law that refers to a conviction of or plea of guilty to a violation of division (A) of section 4511.19 of the Revised Code, a conviction of or plea of guilty to a violation of division (A) of section 4511.19 of the Revised Code. 

(I)  As used in this section: 

(1) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code; 

(2) "Limited driving privileges" has the same meaning as in section 4501.01 of the Revised Code. 

(3) "Methamphetamine" has the same meaning as in section 2925.01 of the Revised Code. 
 

HISTORY: 134 v H 511 (Eff 1-1-74); 137 v S 243 (Eff 11-17-77); 140 v H 44 (Eff 9-27-84); 140 v S 321 (Eff 4-9-85); 141 v H 349 (Eff 3-6-86); 142 v H 51 (Eff 3-17-89); 145 v H 236 (Eff 9-29-94); 146 v S 2 (Eff 7-1-96); 146 v S 269, § 1 (Eff 7-1-96); 146 v H 353, § 1 (Eff 9-17-96); 146 v H 167 (Eff 5-15-97); 146 v S 269, § 8 (Eff 5-15-97); 146 v H 353, § 4 (Eff 5-15-97); 147 v S 60 (Eff 10-21-97); 148 v H 162 (Eff 8-25-99); 148 v S 107 (Eff 3-23-2000); 148 v S 180. Eff 3-22-2001; 149 v H 490, § 1, eff. 1-1-04; 149 v S 123, § 1, eff. 1-1-04; 150 v S 58, § 1, eff. 8-11-04; 151 v S 53, § 1, eff. 5-17-06; 151 v S 8, § 1, eff. 8-17-06.
 

The effective date is set by section 4 of H.B. 490. 

The provisions of § 5 of S.B. 123 (149 v  - ), as amended by § 3 of H.B. 163 (150 v  - ), read as follows: 

SECTION 5. (A) Notwithstanding division (B) of section 1.58 of the Revised Code, the provisions of the Revised Code amended or enacted in Sections 1 and 2 of Am. Sub. S.B. 123 of the 124th General Assembly shall apply only in relation to conduct and offenses committed on or after January 1, 2004. Conduct and offenses committed prior to January 1, 2004, shall be governed by the law in effect on the date the conduct or offense was committed. * * * 

Not analogous to former RC § 2919.22 (RS § 1296-14; 98 v 90; GC § 12935; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, § 2, eff 1-1-74.

 

Effect of Amendments

151 v S 8, effective August 17, 2006, (C)(1), inserted "a controlled substance, or a metabolite of a controlled substance"; and rewrote (C)(2). 

151 v S 53, effective May 17, 2006, in (E)(3), added the last sentence to the first paragraph, and added (E)(3)(a) and (b); and added (I)(3). 

150 v S 58, effective August 11, 2004, added (B)(6), and corrected internal references. 

S.B. 123, Acts 2002, effective January 1, 2004, in (C)(1), substituted "sections 4511.191 to 4511.197" for "section 4511,191", "a combination of them" for "alcohol and a drug of abuse", and "whole blood, blood serum or plasma," for "blood"; rewrote (E)(5)(d); substituted "4511.19" for "4511.99" in (E)(5)(e) and (H)(2)(a)(i); deleted "and also shall be subject to all other sanctions that are required or authorized by any provision of law for that violation of division (A) of section 4511.19 of the Revised Code" from the end of (E)(5)(e); in the introductory language of (F)(1)(a), substituted "A court may require" for "If a court, pursuant to division (E)(5)(d)(i) of this section, requires", inserted "not more than two hundred hours of" and "if the offender agrees to perform the supervised community service work"; substituted "division (F)(1)(a)" for "this division and division (E)(5)(d)(i)" in (F)(1)(b); substituted "Division (F)(1) of this section does" for "Divisions (E)(5)(d)(i) and (F)(1) of this section do"; substituted "(E)(5)(d)" for "(E)(5)(d)(ii)" twice in (G)(1) and the introductory language of (G)(2); in (G)(1), deleted "or revocation" following "period of suspension", and substituted "4509., 4510." for "4507., 4509."; in the introductory language of (G)(2), substituted "limited" for "occupational" and "six" for "seven", and deleted "under division (G) of this section" preceding "if the offender's license"; deleted former (G)(2)(b) through (g) and (G)(3), and redesignated former (G)(2)(h) as (G)(2)(b); added "Any equivalent offense, as defined in section 4511.181" to the beginning of present (G)(2)(b); redesignated former (I) as the introductory language of (I) and (I)(1); and added (I)(2). 

H.B. 490, Acts 2002, effective January 1, 2004, deleted "if the offender agrees to perform the supervised community service work" following "organization" in the introductory language of (F)(1)(a); inserted "or jail term" in (F)(1)(a)(i); substituted "(B)(1), (2), and (3)" for "(F)(1)(a) to (c)" in (F)(1)(a)(ii); substituted "(B)(4)" for "(F)(1)(d)" in (F)(1)(a)(iii); in (F)(2), substituted "place the offender under a community control sanction" for "place the offender on probation or otherwise suspend the sentence," "section 2929.25" for "sections 2929.51 and 2951.02," "a misdemeanor or felony offender" for "the misdemeanor offender," and "division (B)" for "division (F)," and deleted "as a condition of the offender's probation or of otherwise suspending the offender's sentence" following "or felony offender". 

 

19xx Committee Report or Comment.

1974 Committee Comment to H 511

This section is aimed at child neglect and abuse which causes or poses a serious risk to the mental or physical health or safety of the victim. 

The first part of the section defines the offense of neglect as the violation of a duty of care, protection, or support of a child which results in a substantial risk to his health or safety. Nonsupport as such is cognizable under section 2919.21 of the Revised Code, but if the failure to support a child results, for example, in the child suffering from malnutrition or exposure, it is an offense under this section. In addition to the natural parents of the child, the first part of the section also covers guardians and custodians, persons having temporary control of a child, and persons standing in the place of parents. 

The second part of the section deals with actual physical abuse of a child, whether through physical cruelty or through improper discipline or restraint, and regardless of by whom the offense is committed. Examples of violations include: Various actions resulting in the "battered child syndrome"; reducing a child to a state of frightened withdrawal to the point where he may become incapable of normal learning because of repeated punishment inflicted with little or no cause; and chaining a child to his bed or locking him in his room for prolonged periods so as to endanger his sanity or risk his arrested development. 

For penalty purposes, two aggravating circumstances are defined, either of which can raise the offense from a serious misdemeanor to a felony. First, it is an aggravating circumstance when the offense actually results in serious physical harm to the victim. Second, a prior conviction of the same or a similar offense also is an aggravating circumstance. Relevant to this section is Revised Code section 2903.11's provision that if serious physical harm is knowingly inflicted on any person, including a child, it constitutes felonious assault, a felony of the second degree. Accordingly, an offense under this section may be a lesser included offense to felonious assault. 

Endangering children is a misdemeanor of the first degree. An offense under this section is a felony of the fourth degree if it actually results in serious physical harm to the victim or, regardless of the actual result, if the offender has a prior conviction of any offense involving neglect, abandonment, or physical abuse of a child, or contributing to the delinquency of a child.