Connecticut General Statute 53-21 states, in relevant part:

a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.

The motivation behind the enacting of this statute is noble:

The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.

State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:

We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.

Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.

State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.

But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.

For something that forms the crux of the criminality of actions in this statute, there is precious little guidance on the legal meaning of that phrase and the evidence that is required to sustain proof beyond a reasonable doubt on that element. The only explanation of “likely to impair” is as follows:

The term “likely” and the phrase “likely to impair” are defined neither in § 53-21 (a), nor in any related provision of our General Statutes. In the absence of statutory guidance as to the meaning of a particular term, it is appropriate to look to its dictionary definition in order to discern its meaning in a given context. Lombardo’s Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 232, 842 A.2d 1089 (2004). Our review of such sources reveals that, depending on the context, the term “likely” most commonly is understood as an adjective that denotes when particular subject matter will probably come to be or when its chances of realization are more probable than not. Oxford English Dictionary (2d Ed. 1989) (defining “likely” as something “that looks as if it [will] happen, be realized, or prove to be what is alleged or suggested”); The American Heritage Dictionary of the English Language (3d Ed. 1992) (defining “likely” as “possessing or displaying the qualities or characteristics that make something probable”).

In contrast, dictionary sources indicate that the term “possible,” again, depending on the context, primarily has a lower degree of probability or certitude of realization. Oxford English Dictionary, supra (defining “possible” as “that may be [i.e. is capable of being]; that may or can exist, be done, or happen”); The American Heritage Dictionary of the English Language, supra (defining “possible” as something that is “capable of happening, existing or being true” [emphasis added]). The common understanding of the term “likely” therefore ordinarily conveys a degree of certitude as to realization that is in conformity with a definition of “probable,” but that counsels against an understanding of its meaning as merely “possible.” Indeed, at oral argument before this court, the state conceded that it would be “hard-pressed” to contend that the term “likely” reasonably may be understood as meaning “possible.” Accordingly, with no persuasive argument to the contrary, the trial court’s jury instructions that the term “likely” was to be understood as meaning “in all probability or possibility” and “possible or probable,” were improper.

State v. Romero. Got that? Likely to impair means “more probable than not” and (heh) more likely than possible. And yet there is precious little on exactly how the State is to go about the business of proving that an act or situation is likely or more probable than not to impair the morals of a child. There, of course, is no requirement that the morals be actually impaired, merely the probability that they might be. This results in nothing more than that which the Supreme Court said it was avoiding in Robert H. above:

In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.

Take the court’s reasoning for its rejection of the defendant’s claims in Romero (and repeated verbatim in subsequent opinions):

Once the jury determined that the anal intercourse and mutual sexual touching took place, as described by D, it is difficult to imagine a finding that this conduct could not be deemed likely–in the context of probably–to impair D’s morals. Put another way, the defendant has made no claim, and we can conceive of no justification for one, that the defendant’s conduct in relation to his abuse of D, conduct which the jury found to have occurred, is not conduct that is “likely to impair” the health or morals of a child.

Leaving aside the obvious examples quoted involving “acts” as opposed to “situations” (for no one should reasonably argue that it should be legal to force a minor into sexual intercourse), consider the slightly more nuanced scenario where a defendant is charged with showing pornography to a 2 year old child, and thus is said to have violated the Risk of Injury statute. How can one, beyond a reasonable doubt, prove that such an act is likely to impair the morals of a minor? Isn’t this essentially taking for granted that any act involving sexual conduct or placing a child in any situation which has a hint of sexual innuendo is always likely to impair the morals?

What is the functional difference between my example of the 2-year old being exposed to pornography and an 8-year old who walks into his parents’ bedroom while they are engaged in intercourse? To those of you who’ve had the misfortune of experiencing the latter, would you say your morals were impaired?

My point isn’t that we should show pornography to 2-year olds, but rather that the State should be put to its burden of proving beyond a reasonable doubt that such acts or situations are likely to impair the morals, rather than simply taking it for granted.

Sex offenders and sex offenses aren’t popular people and crimes and we’re all a bit squeamish about the topics and the ideas. But this is the top of the very, very, slippery slope. If we can’t confront the inadequacies in the state of the law in this area, then how soon is it before the burden starts slipping in other areas of the law?

Or perhaps it is time to revisit the actual statute itself and rewrite it such that it doesn’t require 20-odd years of judicial gloss to make it Constitutionally acceptable.

And doesn’t this all oddly reek of the same logical fallacies underlying the obscenity laws? You’ll know when your morals are impaired, because my morals are the same as yours.

[For a fascinating read on obscenity trials, be sure to look at this article on the trial of Lady Chatterly's Lover.]

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