The Volokh Conspiracy

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Volokh Conspiracy

N.J. ban on "the habitual use by [a parent or guardian] in the hearing of such child, of profane, indecent or obscene language"


Is the ban constitutional? The New Jersey Supreme Court just decided a case, State v. Tate (N.J. Feb. 2, 2015), but declined to decide whether the statute violates the First Amendment or parental rights. Instead, the court concluded that the defendant's guilty plea should be thrown out, because there wasn't enough showing in the "plea colloquy" that the defendant was actually guilty; the plea colloquy is the hearing before the trial court at which the defendant admits his guilt and shows that he understands the consequences of the guilty plea:

[W]e now examine whether the factual basis elicited from defendant to support his guilty plea satisfied the elements of child abuse. That is, did defendant admit to or acknowledge uttering profane, indecent, or obscene language in the presence of R.G. on a habitual basis? As we discussed, the words profane, indecent, and obscene are susceptible to various interpretations-and reasonable people may have different understandings of the meaning of those words. Here, defendant was never asked precisely what words he uttered that fit the statutory language. Defendant merely answered, "Yes," to the question, "did you curse in [R.G.'s] presence to and in a way that would debauch his morals?" and, "Yes," to the question, "you used off-color language in his presence?"

Curse words and off-color language many times will be synonymous with profane, indecent, or obscene language, but not always. Therefore, it is not possible to determine whether defendant's use of a curse word or off-color language is the equivalent of the language proscribed by the child-abuse statutes. Conceptions of what constitutes a curse word—even ones that would debauch the morals of a minor—and off-color language may differ among reasonable people. What is profane or indecent may depend on social norms that are fluid.

The flaw in the plea colloquy was the failure to elicit the actual words and language uttered by defendant in the presence of R.G. Only then would the court have been in a position to make an independent determination whether the purportedly offending language constituted child abuse.

Moreover, even if we accept that the use of curse words or off-color language is the equivalent of "profane, indecent or obscene language," N.J.S.A. 9:6-1(d), the plea colloquy did not elicit whether defendant engaged in the "habitual use" of such language. The "habitual use" of the statutorily proscribed language is an element of child abuse. Defendant's factual account does not satisfy that element. We cannot infer from defendant's admission that because R.G. lived with him for three months, defendant therefore must have habitually cursed in the minor's presence.

Eliciting an adequate factual basis should not be a complex or difficult undertaking if a defendant is willing and able to give a truthful account of the conduct that violates a statute. We are aware of the long procedural history of this case, and that the State attributes delays to defendant and that defendant complains about the one-day-only plea offer. But the sole matter of consequence that we address is whether the factual basis given during the plea colloquy conforms to our court rules and jurisprudence.

We need not decide whether N.J.S.A. 9:6-1(d) is so broadly and vaguely worded that it treads on constitutionally protected free-speech or due-process rights, or the right of a parent to raise a child without undue interference by the State. Here, the factual basis does not comport with the requirements of our court rules or jurisprudence and, therefore, we choose not to reach the constitutional issue raised for the first time on appeal before us.

Because we conclude that the factual basis does not satisfy the elements of N.J.S.A. 9:6-1(d), we are constrained to vacate defendant's plea of guilty to child abuse.

I think that the statute is both unconstitutionally vague and overbroad (unless it is limited to "obscene language," and that in turn is limited to extremely pornographic language explicitly describing sexual acts, which is probably not what "obscene language" was likely intended to mean in this context). Still, it's interesting that the statute is still out there, and still being used.

Note that there's a backstory to the prosecution:

Defendant was charged in a 2004 Morris County indictment with first-degree aggravated sexual assault; second-degree endangering the welfare of a child; and third-degree aggravated criminal sexual contact. Defendant allegedly committed those criminal acts between September and November 1999, when he served as a foster parent to thirteen-year-old R.G., who had been placed in defendant's home. The long and tortuous procedural history of this case is not germane to this appeal. Suffice it to say that defendant filed multiple motions and cycled through a number of attorneys from the time of the indictment in 2004 to the plea proceedings in June 2009.

On June 4, 2009, the State tendered to defendant a plea offer that expired that same day. The State and defendant entered into an agreement, which provided that defendant would plead guilty to the downgraded charge of fourth-degree child abuse. In return for the guilty plea, the State agreed to dismiss the remaining charges in the indictment and recommend a sentence of time served [which at that point was more than three years -EV]. The State also agreed that no fine would be imposed….

With respect to the crimes charged in the indictment, the court observed that defendant "sat in jail for a number of years" and "maintained his innocence," rejecting "favorable plea offers to time served." Indeed, defendant had been incarcerated for more than three years before he was released on bail on May 20, 2008. According to the court, defendant only accepted "responsibility" when he was "offered an opportunity to provide a factual basis" to cursing in R.G.'s presence. The court found that defendant provided a factual basis for child abuse because he admitted that he was a foster parent in charge of a minor and that "he did curse [and] use foul language" in the child's presence.