Reckless Endangerment of a Child in Massachusetts Under G.L. c. 265, § 13L

A person accused of placing a child in serious danger can be charged with reckless endangerment of a child under G.L. c. 265, § 13L. The Commonwealth can prosecute the charge even when the child was not hurt. The Commonwealth must prove that the defendant was personally aware of a substantial risk of serious injury to the child and consciously disregarded that risk. This page explains the elements, the awareness requirement, the appellate decisions, the penalties, and how these cases begin and end.

Reckless endangerment of a child is a misdemeanor. If a defendant is convicted, the maximum sentence is two and one-half years in the house of correction.

The Elements of the Offense

Section 13L punishes a person who “wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child.” The statute also punishes a person who wantonly or recklessly fails to take reasonable steps to reduce that risk, when the person has a duty to act.

The Commonwealth must prove three elements. The first element is that the alleged victim was a child under eighteen. The second element is that there was a substantial risk of serious bodily injury or sexual abuse to the child.

The third element is that the defendant wantonly or recklessly created the risk. Alternatively, the Commonwealth can prove that the defendant had a duty to act and wantonly or recklessly failed to take reasonable steps to reduce the risk. Commonwealth v. Hardy, 482 Mass. 416, 421 (2019); Commonwealth v. Roderiques, 462 Mass. 415, 422 (2012).

The Legislature enacted § 13L in 2002. St. 2002, c. 322. The legislative findings described complaints about the sexual abuse of children by adults who had been recklessly placed or kept in positions of trust. The Supreme Judicial Court has held that the words of the statute also cover reckless conduct that creates a substantial risk of serious bodily injury to a child. Commonwealth v. Hendricks, 452 Mass. 97 (2008).

Serious Bodily Injury and Sexual Abuse

Under § 13L, a serious bodily injury is an injury that causes permanent disfigurement, protracted loss or impairment of a bodily function, limb, or organ, or a substantial risk of death. A risk of a minor injury is not enough under § 13L.

Section 13L defines sexual abuse by listing specific crimes in chapter 265. The list includes indecent assault and battery on a child under fourteen under § 13B and indecent assault and battery on a person fourteen or older under § 13H. The list also includes rape under § 22 and rape of a child under §§ 22A and 23. A charge based on a risk of sexual abuse can allege, for example, that the defendant left a child with a person the defendant knew posed that danger.

The risk must be substantial and unjustifiable. The statute requires a risk of such nature and degree that disregarding the risk is a gross deviation from the conduct of a reasonable person in the same situation. The Supreme Judicial Court has explained that the risk must be “a good deal more than a possibility,” and that disregarding the risk must be “substantially more than negligence.” Hendricks, 452 Mass. at 103.

The Commonwealth does not have to prove that the child was injured. The Supreme Judicial Court upheld a § 13L conviction in a case where the child suffered no injury. Hendricks, 452 Mass. at 106; see Commonwealth v. Rezac, 494 Mass. 368 (2024).

The Defendant’s Awareness of the Risk

Under § 13L, wanton or reckless behavior “occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk.” The risk is that the person’s conduct would result in serious bodily injury or sexual abuse to a child. The same definition applies to a failure to act by a person who has a duty to act.

The Supreme Judicial Court has held that this definition requires proof that the defendant was personally aware of the risk. Commonwealth v. Coggeshall, 473 Mass. 665, 670 (2016). For other Massachusetts crimes based on wanton or reckless conduct, such as involuntary manslaughter, the Commonwealth can prove instead that a reasonable person would have recognized the danger. Hardy, 482 Mass. 416. The Commonwealth cannot rely on that reasonable person standard in a § 13L case. Coggeshall, 473 Mass. at 670.

Proof of awareness can come from the defendant’s own statements, from warnings the defendant received, and from facts the defendant plainly knew. In Coggeshall, a visibly intoxicated father walked on railroad tracks with his eleven-year-old son. The father told the police that he always walked on the tracks. The Supreme Judicial Court held that the application for a criminal complaint showed probable cause that the father was aware of the risk to his son. Coggeshall, 473 Mass. at 671.

The Duty to Act

The second way to commit the offense is by failing to act. The Commonwealth must prove that the defendant had a duty to take reasonable steps to reduce the risk to the child and wantonly or recklessly failed to take those steps.

The District Court model jury instruction explains who has that duty. Parents and legal guardians have a legal duty to take reasonable steps to prevent harm to a child in their care. A person who accepts responsibility as a caretaker also has that duty. The instruction tells the jury that other persons may also have a duty and that the jury decides from the facts whether the Commonwealth proved one. Instruction 6.540, Criminal Model Jury Instructions for Use in the District Court (May 2011).

In Commonwealth v. Figueroa, 83 Mass. App. Ct. 251 (2013), a grandmother refused to help her fifteen-year-old daughter take the daughter’s infant to the hospital after the infant struck his head on a tile floor. The grandmother also took the daughter’s cellular telephone. The Appeals Court upheld the grandmother’s conviction. In Rezac, 494 Mass. 368, the Supreme Judicial Court upheld the § 13L conviction of a mother who stopped her injured son from calling for emergency help.

Appellate Decisions on What Counts as Reckless

In Hendricks, a father led the police on a high-speed nighttime chase with his three-year-old child in the car. He drove at more than twice the speed limit on narrow, unpaved roads with sharp turns. The chase ended when he drove over an embankment into the woods. The Supreme Judicial Court upheld his § 13L conviction. Hendricks, 452 Mass. at 106.

In Hardy, a mother crashed into a trailer stopped ahead of her while she was driving with children in the car. She had put a booster seat in the trunk instead of using the booster seat for one child.

The Supreme Judicial Court upheld her convictions for negligent motor vehicle homicide. The court held, however, that the booster seat evidence and her general inattentiveness while driving did not prove the reckless conduct § 13L requires. The court ordered a finding of not guilty on the § 13L charge. Hardy, 482 Mass. at 424-425.

In Commonwealth v. Santos, 94 Mass. App. Ct. 558 (2018), a mother left her three-year-old in front of the television for ten to fifteen minutes while she used the bathroom. The child had wandered from the home before. The Appeals Court held that leaving the child in front of the television did not show probable cause of reckless conduct. Id. at 561.

While the mother was in the bathroom, the child wandered out of the home. The mother searched for about ten minutes, assumed the child was with a neighbor, went home, and did not call the police. The Appeals Court held that her conduct after she discovered the child was missing did show probable cause. Id. at 562.

In these decisions, the appellate courts held that an ordinary lapse in supervision or attention is not reckless endangerment of a child. The appellate courts upheld § 13L charges where the defendant consciously chose to expose a child to a serious and apparent danger.

Related Charges

The Commonwealth can charge § 13L together with other offenses arising from the same incident. When the police allege that a driver operated under the influence with a child in the vehicle, the Commonwealth can also charge G.L. c. 90, § 24V. The site’s page on OUI defense explains § 24V.

When the police allege that a child could reach an unsecured gun, the Commonwealth can also charge improper storage of a firearm under G.L. c. 140, § 131L. When a child was injured, the Commonwealth can charge assault and battery on a child under G.L. c. 265, § 13J. Section 13L is a lesser included offense of the § 13J charge of wantonly or recklessly permitting substantial bodily injury to a child. Roderiques, 462 Mass. 415.

Clerk-Magistrate Hearings and the Department of Children and Families

Many § 13L cases begin without an arrest. In those cases, the police file an application for a criminal complaint. The person then receives notice of a clerk-magistrate hearing under G.L. c. 218, § 35A. At the hearing, the clerk-magistrate decides whether the application shows probable cause. When the clerk-magistrate denies the application, no criminal complaint issues and no criminal case begins. The firm’s case results page includes § 13L applications that ended with no complaint.

Police officers are mandated reporters under G.L. c. 119, §§ 21 and 51A. The police often report a § 13L incident involving a parent or caretaker to the Department of Children and Families. The Department then conducts its own investigation, which is separate from the criminal case. The site’s page on DCF 51A investigations explains that process. Statements a parent gives to a DCF investigator can later be offered as evidence in the criminal case.

Penalties and Case Outcomes

If a defendant is convicted under § 13L, the maximum sentence is two and one-half years in the house of correction. The statute sets no minimum sentence. The judge may instead place the defendant on probation.

A § 13L case can end without a conviction. A judge may continue the case without a finding under G.L. c. 278, § 18. If the defendant complies with the conditions, the judge dismisses the case. The site’s page on continuances without a finding and pretrial probation explains those outcomes. A case can also end with a dismissal, a not guilty finding, or a nolle prosequi, which is the prosecutor’s decision to drop the charge.

Section 13L has no statute of limitations. Under G.L. c. 277, § 63, the Commonwealth can file a § 13L complaint at any time after the alleged offense.

A person convicted under § 13L can ask the Commissioner of Probation to seal the record under G.L. c. 276, § 100A. The request can be made once three years have passed since the case ended, if the person has no new conviction during those three years. A person whose case was dismissed can ask a judge to seal the record at any time, under G.L. c. 276, § 100C. The site’s page on sealing a Massachusetts criminal record explains both procedures.

Immigration Consequences

Federal immigration law imposes its own consequences on a § 13L case. Under 8 U.S.C. § 1227(a)(2)(E)(i), a noncitizen convicted of a crime of child abuse, child neglect, or child abandonment is deportable. Federal immigration law can treat a Massachusetts continuance without a finding as a conviction.

An immigration officer can also ask a noncitizen about the arrest or the conduct described in the police report, even when the case ended without a conviction. A noncitizen charged under § 13L should have an immigration lawyer review the exact question, the noncitizen’s status, and the court record. The lawyer should complete that review before the noncitizen files a petition or attends an interview. The site’s page on immigration consequences of Massachusetts criminal charges explains the federal rules.

Defending a § 13L Charge

In many § 13L cases, the defense focuses on the awareness element. The Commonwealth must prove what the defendant knew, not what a careful parent should have known. Evidence of what the defendant saw, heard, and was told before the incident can show that the defendant did not recognize the danger.

The defense also examines the level of risk. The Commonwealth must prove a risk of serious bodily injury as § 13L defines serious bodily injury. The Commonwealth must also prove a risk that was a good deal more than a possibility. A police report can describe a frightening event without showing a risk of permanent injury or death.

In a failure-to-act case, the defense examines whether the defendant had a legal duty to the child and what steps the defendant took. In Santos, the Appeals Court separated the mother’s ordinary supervision from her conduct after she learned the child was missing.

Attorney Joe Serpa defends § 13L charges in the Massachusetts district courts, beginning at the clerk-magistrate hearing when the case starts with an application for a complaint. A parent facing a DCF investigation at the same time should speak with Attorney Serpa before speaking with the DCF investigator.

Frequently Asked Questions

Related Serpa Law Office Resources

• Massachusetts Criminal Charges Defense
• Assault and Battery Charges in Massachusetts Under G.L. c. 265, § 13A
• DCF 51A Investigations After a Massachusetts Domestic Arrest
• Massachusetts Clerk-Magistrate Hearing Lawyer
• CWOF, Pretrial Probation, and Diversion in Massachusetts Criminal Law
• Sealing and Expunging a Massachusetts Criminal Record