709-905 Endangering the welfare of an incompetent person. (1) A person commits the offense of endangering the welfare of an incompetent person if he knowingly acts in a manner likely to be injurious to the physical or mental welfare of a person who is unable to care for himself because of physical or mental disease, disorder, or defect.

(2) Endangering the welfare of an incompetent person is a misdemeanor. [L 1972, c 9, pt of 1]

 

COMMENTARY ON 709-905

 

This section seeks to expand the protection which the law affords to incompetents by making it roughly equivalent to that afforded to minors. A child who suffers from a mental or physical disease, disorder, or defect is protected as a child from certain dangers by 709-902 through 904 which make abandonment, persistent nonsupport, and endangering the welfare of a minor penal offenses. A person who is physically incapacitated or mentally incompetent is afforded protection against sexual assault and abuse by chapter 707, which makes such conduct, as it relates to such persons, an offense. However, in cases not involving sexual activity or not specifically involving minors under 709-902 through 904, there is, without 709-905, a gap in the coverage of the Code. This gap also existed in prior law.

 

Case Notes

 

Family court did not abuse its discretion by requiring defendant to attend domestic violence counseling as a condition of defendant's probation; where defendant was charged with endangering the welfare of an incompetent person under this section based on substantial evidence that defendant assaulted complainant, under 706-624(2), the court was free to impose discretionary conditions of probation that are reasonably related to the factors set forth in 706-606 and to the extent that the conditions involve only deprivations of liberty as is reasonably necessary for the purposes indicated in 706-606(2). 121 H. 228 (App.), 216 P.3d 1251 (2009).

Section is not unconstitutionally vague or overbroad; under a plain reading of this section, the phrase "likely to be injurious" is reasonably clear and provides sufficient notice to a person of ordinary intelligence that knowingly engaging in conduct that would probably cause harm to an incompetent person's welfare is prohibited; section is also clear that the accused must wilfully engage in conduct that would likely harm the incompetent person's welfare, "which is the antithesis of an intentional act that may injure but is performed in the incompetent person's best interest". 121 H. 228 (App.), 216 P.3d 1251 (2009).

Where witness testimonies, particularly when viewed in the light strongest for the State, substantially supported the findings that complainant was unable to care for complainant's self because of a mental disability and defendant knew defendant's actions were likely to injure complainant's physical or mental welfare, there was sufficient evidence to convict defendant under this section. 121 H. 228 (App.), 216 P.3d 1251 (2009).

 

 

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