Missouri s New Criminal Code & the Impact on Schools

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1 Missouri s New Criminal Code & the Impact on Schools Was there cause for the offender to act the way they did? Was the offender protecting themselves or responding to a threat made by the alleged victim? Did the offender intend to cause emotional distress to the alleged victim? Was it a statement or act taken out of context? Was the offender joking? Are there unknown circumstances associated with the alleged victim that the offender was not aware of which made the acts or statements much more serious? What reaction did the alleged victim have? Were there physical manifestations of the emotional distress? Physical illness? Refusal to come to school or be in the same room as the offender? Did the victim require counseling or otherwise need medical assistance? Has the victim been subject to similar statements or acts and not been similarly effected? On January 1, 2017, substantial revisions to Missouri s criminal code took effect. While the largest changes dealt with penalty provisions, there are a few changes that could have a significant effect on School Districts. Those changes include a new harassment statute that may cover many instances of student misconduct and that must be reported under the Safe Schools Act. There were also significant changes to the assault statutes with a re-defined third degree assault, now a felony. Finally, the list of reportable offenses under the Safe Schools Act includes some new offenses, and it requires reporting under pre-2017 versions of some statutes. Below is more detailed explanation and guidance regarding the changes, including possible criminal prosecutions related to student misconduct and bullying. Harassment The amended code includes a new felony harassment offense under Section RSMo. A person now commits harassment in the first degree, a class E felony, if he or she, without good cause, engages in any act with the purpose to cause emotional distress to another person, and such act does cause such person to suffer emotional distress. Emotional distress is defined as something markedly greater than the level of uneasiness, nervousness, unhappiness, or the like which are commonly experienced in day-to-day living (7). This broad definition of harassment could apply to many student interactions and incidents of misconduct, but there are two notable limiting factors: the conduct must have been without good cause and it must have been markedly greater than day-to-day distress. To better determine when criminal harassment has occurred, we suggest focusing on the emotional distress caused. The emotional distress must be markedly greater than commonly experienced in day-to-day living. Thus, while distress that results in crying is likely not commonly experienced in dayto-day living, it may not be so markedly greater that is criminal harassment particularly for elementary school students who are more likely show distress by crying.

2 But, if the distress rises to the level that a student is terrified to be in the same room as another student or refuses to come to school at all, it may be markedly greater and could be considered criminal harassment. Generally it will be a case-by-case determination based on each circumstance and the students involved. The following checklist of considerations will help you in analyzing these situations to determine whether criminal harassment has occurred. While there is no bright-line test to determine whether harassment has occurred, the list of considerations above will help analyze each situation and make a determination. The broad definition of harassment will also effect school districts reporting requirements since administrators are required to report criminal harassment, along with other listed offenses, to Law Enforcement, under (2)(24). Unlike for assault in the third degree, there is no option available for a written agreement with law enforcement regarding the reporting of criminal harassment; the law requires that it be reported. Assaults The second big change that will affect school districts is the reclassification of the assault offenses. Under , RSMo., all building principals have a legal obligation to immediately report to the superintendent and law enforcement any instance when any person is believed to have committed an act which if committed by an adult would be assault in the first, second or third degree... Failing to do so subjects the principal to criminal liability. Before the criminal code amendments, third degree assault was defined very broadly, often resulting in a large reporting burden for principals. Most of what was third degree assault under the old code (such as attempt to cause physical injury, offensive touching, and causing apprehension of immediate injury), is now included in a new offense of misdemeanor fourth degree assault and no longer has to be reported under the Safe Schools Act. Third degree assault (Section ) is now knowingly causing physical injury to another person. Physical injury, which used to include pain, is now defined as slight impairment of any function of the body or temporary loss of use of any part of the body. So, third degree assault under the new criminal code is a felony, but the offense applies to different conduct than before (more serious assaults with tangible injuries). 2

3 To help administrators determine whether third degree assault has occurred and must be reported, we have developed the following checklist: When a student engages in physical misconduct on District property, a school bus or during a school activity, carefully evaluate the injuries sustained by all involved. Determine if any injuries rise to the level of a physical injury (a slight impairment of any function of the body or temporary loss of use of any part of the body, such as a black or swollen eye, bloody nose, cut, or sprained knee). If there was physical injury, then follow the District s reporting requirements for assault in the 3rd degree. Determine if the District has an agreement in place with local law enforcement regarding the reporting of assault in the 3rd degree. If so, follow the reporting requirements contained in the agreement. If the District does not have an agreement in place with local law enforcement, then immediately notify the superintendent and law enforcement of the assault. Things like pushing, shoving, and other offensive contact would not meet this definition absent some tangible injury. For instance, if a student pushes another student and nothing else happens, then this would not qualify as assault in the third degree. If the pushed student happened to fall into a desk and hit their nose, though, causing it to bleed, there would be sufficient physical injury. The student would have a slight impairment and temporary loss of use of their nose. Similarly, if a student punched another student in the eye but there was no bruising or swelling, there would not be a physical injury. But, if the victim s eye started to swell or bruise, the threshold for a physical injury is met since the student will has a slight impairment of their ability to see with that eye. As for the knowingly part of the new definition of third degree assault, the new criminal code states that a person acts knowingly, regarding the result of their actions if he or she is aware that his or her conduct is practically certain to cause that result. In the context of third degree assault then, there must be awareness that the act is practically certain to cause physical injury (as defined above). That means accidental or simply reckless behavior would not suffice. While the threshold third degree assaults will be higher, there will likely be challenges applying the new definition in each case. Finally, under Section , school districts can still enter written agreements with law enforcement regarding reporting third degree assaults. With the broader definition under the old statute, law enforcement agencies were often willing to accept agreements that did not require immediate reporting. With the increased threshold for third degree assault under the new definition, school districts can expect law enforcement to require more stringent reporting requirements. Administrators should: Confirm whether there is currently an agreement with law enforcement regarding reporting third degree assault. If not, consider meeting with law enforcement to develop an agreement. If so, meet with law enforcement to ensure everyone is on the same page with respect to reporting third degree assaults and that the agreement includes the correct definitions under the new criminal code.. 3

4 Bullying and the Criminal Code Amendments There has been significant media attention regarding whether the new criminal code may result in students being charged with felonies for relatively minor misconduct or bullying. The fear is that the Safe Schools Act requires incidents of assault in the third degree and first degree harassment to be reported to law enforcement, and those offenses are now felonies. For assault in the third degree, however, the new statute should have only a small effect on felony charges for students, and it should actually decrease what schools have to report to law enforcement. As noted above, the amended criminal code did make third degree assault a felony, but it changed the definition of the offense to include only more serious incidents with tangible injuries. Some school fights or bullying are likely to fit under the new third-degree-assault offense and could be charged as felonies under the new statute (such as fights that result in sprains, bleeding, or significant bruising). But those offenses could have been charged as felonies under the old criminal code anyway. The old criminal code had a separate crime under Section for assault on school property, which was a felony. Assault on school property covered knowingly causing physical injury at school, on a bus, or at school events. Since the definition of physical injury included pain, anything that could now be charged as felony third degree assault could have been charged as felony assault on school property under the old criminal code. Because of that, the new assault provisions did not create additional felony exposure for students. Also, prosecutors have broad discretion in deciding which charges to file, and school assaults were rarely filed as felony assault on school property under the old code. Instead, most cases were handled as misdemeanors and serious assaults were generally filed as first or second degree assault, which remain options under the revised code. We would anticipate that prosecutors will use similar discretion going forward. Though possible issues with the new assault statute have been overstated, changes to the harassment statute could be significant. The new offense of harassment in the first degree must be reported to law enforcement under the Safe Schools Act regardless of any agreement with law enforcement, and the new offense is a felony. The statute s broad definition could cover many incidents of student misconduct and bullying. There is, therefore an increased chance that students could be charged with felonies related to misconduct at school when the conduct would have been a misdemeanor under the old code. As with assaults, however, prosecutors have discretion in choosing which charges to file related to harassment. While making harassment a felony does create a potential for more felony charges, a prosecutor could choose to charge any offense that could be felony first degree harassment as misdemeanor harassment in the second degree under Section Still, the risk of increased felonies is present, and there remains a difficult reporting burden for school districts under the new harassment statute. 4

5 Requirement to Report Under Pre-2017 Version of Some Criminal Statutes. The amended criminal code and changes to the Safe Schools Act have also affected other law-enforcement-reporting requirements. Section now includes new offenses that must be reported, and it requires reporting some violations of criminal statutes as they existed before Because the pre-2017 versions of the statute are no longer easily accessible online, that may create difficulties in determining what must be reported. For a several offenses, the listed pre-2017 version was simply renamed or is otherwise completely covered by a new criminal offense that is also listed in the Safe Schools Act. For those offenses, school districts can simply refer to the list of current reportable offenses. Those offenses are the pre-2017 versions of kidnapping, felonious restraint, robbery in the first degree, distribution of drugs, distribution of drugs to a minor, and child molestation in the first degree. For stalking under the pre-2017 criminal statute, that offense is completely covered by what is now stalking in the second degree under the new code. While stalking in the second degree is not specifically listed as an offense that must be reported under the Safe Schools Act, for simplicity, schools can refer to the current version of stalking in the second degree under Section instead of searching for the pre-2017 statute. For other offenses, there were substantial differences in the pre-2017 statute that are not included in the new list of offenses in the Safe Schools Act. For those offenses, involuntary manslaughter, second degree assault, and harassment, administrators will have to use the pre code. 5

6 Involuntary manslaughter ( ) Involuntary manslaughter under section as it existed prior to January 1, 2017 A person commits the crime of involuntary manslaughter in the first degree if he or she: (1) Recklessly causes the death of another person; or (2) While in an intoxicated condition operates a motor vehicle or vessel in this state and, when so operating, acts with criminal negligence to cause the death of any person; or(3) While in an intoxicated condition operates a motor vehicle or vessel in this state, and, when so operating, acts with criminal negligence to: (a) Cause the death of any person not a passenger in the vehicle or vessel operated by the defendant, including the death of an individual that results from the defendant's vehicle leaving a highway, as defined by section , or the highway's right-of-way; or vessel leaving the water; or (b) Cause the death of two or more persons; or Not fully covered: Subsection (1) is the same as the new offense, but the other sections (bold) are no longer covered by any SSA-listed offense and would need to be reported according to the pre version of (Some subsections would be violations of other portions of the amended code not specifically mentioned in the SSA. Only the relevant pre-2017 version of Section is listed here). First degree murder under section Second degree murder under section ; Voluntary Manslaughter ( ) Involuntary manslaughter in the first degree ( ) A person commits the offense of involuntary manslaughter in the first degree if he or she recklessly causes the death of another person. 6

7 (c) Cause the death of any person while he or she has a blood alcohol content of at least eighteenhundredths of one percent by weight of alcohol in such person's blood; or (4) Operates a motor vehicle in violation of subsection 2 of section [yielding to/moving over/ proceeding with caution around to emergency vehicle with lights on], and when so operating, acts with criminal negligence to cause the death of any person authorized to operate an emergency vehicle, as defined in section , while such person is in the performance of official duties; (5) Operates a vessel in violation of subsections 1 and 2 of section [yielding to water patrol], and when so operating acts with criminal negligence to cause the death of any person authorized to operate an emergency watercraft, as defined in section , while such person is in the performance of official duties. Involuntary manslaughter in the second degree ( ) A person commits the offense of involuntary manslaughter in the second degree if he or she acts with criminal negligence to cause the death of any person. Assault 1st ( ) 7

8 Second degree assault under section as it existed prior to January 1, 2017 (4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself; or (6) Operates a motor vehicle in violation of subsection 2 of section [covering yielding to/ moving over/proceeding with caution around to emergency vehicle with lights on], and when so operating, acts with criminal negligence to cause physical injury to any person authorized to operate an emergency vehicle, as defined in section , while such person is in the performance of official duties. Some subsections are included in the new statute but not the subsections listed in bold. Those would require reference to the pre-2017 version of Assault 1st ( ) Assault 3d (Section ) [Not required to be reported by Section , but principals must report to law enforcement under Section ] Knowingly causing physical injury to another person. Physical injury is slight impairment of any function of the body or temporary loss of use of any part of the body. 8

9 Kidnapping under section as it existed prior to January 1, 2017 Same as the current statute (simply renamed kidnapping 1 st ) Kidnapping 1 st ( ) Felonious restraint under section as it existed prior to January 1, 2017 Same in current statute (simply renamed kidnapping 2d) Kidnapping in the second degree ( ) Rape ( ) Rape 2d ( ) Sodomy 1 st ( ) Sodomy 2d ( ) Child molestation 1 st ( ) A person commits the offense of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact and the offense is an aggravated sexual offense. Child molestation second ( ) A person commits the offense of child molestation in the second degree if he or she: (1) Subjects a child who is less than twelve years of age to sexual contact; or (2) Being more than four years older than a child who is less than seventeen years of age, subjects the child to sexual contact and the offense is an aggravated sexual offense. 9

10 Child molestation in the first degree pursuant to section as it existed prior to January 1, 2017 Same as current statute (was reclassified to third degree) Child molestation third ( ) A person commits the offense of child molestation in the third degree if he or she subjects a child who is less than fourteen years of age to sexual contact. Sexual Misconduct involving a child ( ) Sexual Abuse 1st ( ) Burglary 1 st ( ) Robbery in the first degree under section as it existed prior to January 1, 2017 Distribution of drugs under section as it existed prior to January 1, 2017 Same as current statute (though new statute adds a new subsection) Covered by Current Offenses (any conduct under the old by either manufacturing controlled substance under or delivery of a controlled substance under ) Burglary 2d ( ) Robbery 1 st ( ) - incorporates old offense plus Steals any controlled substance from a pharmacy manufacture of a controlled substance ( ) (1) Knowingly manufactures, produces, or grows a controlled substance; (2) Attempts to manufacture, produce, or grow a controlled substance; or (3) Knowingly possesses a controlled substance with the intent to manufacture, produce, or grow any amount of controlled substance. 10

11 Distribution of drugs to a minor ( ) Distribution of drugs to a minor under section as it existed prior to January 1, 2017 A person commits the offense of unlawful distribution of a controlled substance to a minor if he violates section by distributing or delivering any controlled substance to a person under seventeen years of age who is at least two years that person's junior. Harassment ( ) Harassment under section as it existed prior to January 1, A person commits the crime of harassment if he or she: (1) Knowingly communicates a threat to commit any felony to another person and in so doing frightens, intimidates, or causes emotional distress to such other person; or (2) When communicating with another person, knowingly uses coarse language offensive to one of average sensibility and thereby puts such person in reasonable apprehension of offensive physical contact or harm; or Covered by new (any conduct covered by the old statute would be covered by delivery of a controlled substance under Section ) (new statute also adds allowing a minor to purchase or transport illegally obtained drugs) There are substantial differences that will require reference to the pre statute (in bold). delivery of a controlled substance ( ) A person commits the offense of delivery of a controlled substance if, except as authorized in this chapter or chapter 195, he or she: (1) Knowingly distributes or delivers a controlled substance; (2) Attempts to distribute or deliver a controlled substance; (3) Knowingly possesses a controlled substance with the intent to distribute or deliver any amount of a controlled substance; or (4) Knowingly permits a minor to purchase or transport illegally obtained controlled substances. Arson 1 st ( ) Property Damage 1 st ( ) Possession of a Weapon (Ch. 571) Harassment in the first degree ( ) A person commits the offense of harassment in the first degree if he or she, without good cause, engages in any act with the purpose to cause emotional distress to another person, and such act does cause such person to suffer emotional distress. (Emotional Distress: something markedly greater than the level of uneasiness, nervousness, unhappiness, or the like which are commonly experienced in day-to-day living.) 11

12 (3) Knowingly frightens, intimidates, or causes emotional distress to another person by anonymously making a telephone call or any electronic communication; or (4) Knowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person; or (5) Knowingly makes repeated unwanted communication to another person; or (6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person. Stalking in the first degree ( ) A person commits the offense of stalking in the first degree if he or she purposely, through his or her course of conduct, disturbs or follows with the intent of disturbing another person and: (1) Makes a threat communicated with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety, the safety of his or her family or household member, or the safety of domestic animals or livestock as defined in section kept at such person's residence or on such person's property. The threat shall be against the life of, or a threat to cause physical injury to, or the kidnapping of the person, the person's family or household members, or the person's domestic animals or livestock as defined in section kept at such person's residence or on such person's property; or (2) At least one of the acts constituting the course of conduct is in violation of an order of protection and the person has received actual notice of such order; or (3) At least one of the actions constituting the course of conduct is in violation of a condition of probation, parole, pretrial release, or release on bond pending appeal; or (4) At any time during the course of conduct, the other person is seventeen years of age or younger and the person disturbing the other person is twenty-one years of age or older; or (5) He or she has previously been found guilty of domestic assault, violation of an order of protection, or any other crime where the other person was the victim; or (6) At any time during the course of conduct, the other person is a participant of the address confidentiality program under sections to , and the person disturbing the other person knowingly accesses or attempts to access the address of the other person. 12

13 Stalking ( ) 2. A person commits the crime of stalking if he or she purposely, through his or her course of conduct, harasses or follows with the intent of harassing another person. Stalking under the pre-2017 statute covered the same conduct as the new stalking 2d ( harasses under old statute was defined the same as disturbs under the new one). Schools can simply refer to the new stalking 2d statute. Stalking 2d ( ) [Note that stalking in the second degree is not included in the SSA, but it covers the same conduct as the pre-2017 version of stalking] A person commits the offense of stalking in the second degree if he or she purposely, through his or her course of conduct, disturbs, or follows with the intent to disturb another person 13

14 As of Jan. 1, 2017, school districts will be required to report not only criminal harassment in the first degree, which is defined as engaging in any act with the purpose to cause emotional distress to another person, but also criminal harassment under the pre-2017 definition. The definition of emotional distress under the current law is blurry something markedly greater than the level of uneasiness, nervousness, unhappiness, or the like which are commonly experienced in day-to-day living. The pre-2017 definition of criminal harassment included a list of 6 items, including threats to commit a felony, threats of harm, acts of intimidation, communicating with a person 17 or younger and without good cause frightening, intimidating, or causing emotional distress, and repeated unwanted communications. School personnel will need to be trained to identify and report criminal harassment (as distinguished from harassment/discrimination based on a protected class), which will be a difficult distinction to explain. Given the addition of criminal harassment in the first degree to the reporting requirements plus the low threshold for emotional distress, school personnel will be required to report more acts of student-on-student misconduct to law enforcement. Assault in the third degree is now a felony and must still be reported to law enforcement, but what constitutes the offense has changed. Assault in the third degree is now defined as knowingly causing physical injury. Physical injury is defined as slight impairment of any function of the body or temporary loss of use of any part of the body. School districts can enter agreements with local law enforcement regarding reporting third degree assault. Reporting agreements already in effect should be reviewed to ensure consistency with the criminal code amendments. The Safe Schools Act now includes some new offenses that must be reported to law enforcement, and it requires schools to be aware of and report violations of some pre-2017 statutes. 14