Leaving a child unattended in a motor vehicle is a judgment call.
It’s bad judgment by an adult. But it’s also up to the judgment of law enforcement whether to press charges.
Only 19 states have explicit laws governing leaving a child unattended in a motor vehicle. In New York, with no explicit law, drivers can be charged with endangering the welfare of a child or more, depending on the circumstances.
But even if the circumstances are the same, the decision to prosecute can vary by jurisdiction, or even officer.
Last week a Ballston Spa woman, 28-year-old Jennifer J. Bautistan, pleaded guilty to a reduced charge of disorderly conduct, a violation, and paid a fine for leaving her 5-month-old unattended in her vehicle for several minutes outside the Saratoga Springs Public Library.
She had been charged with endangering the welfare of a child, a misdemeanor. The child had been left unsecured in a child seat and covered in a blanket, and was discovered only when a bystander saw the blanket move.
The woman’s attorney declined comment.
Saratoga County District Attorney James Murphy stressed a point that he maintains eluded the woman in the Saratoga Springs case — and many others — until after the fact: Sometimes the concern is not what could happen to the unattended child, but what could happen to the parent or caregiver.
“The focus we always have is most mothers don’t intend to do anything wrong to their child,” Murphy said. “The problem is what if she trips on the stairs and hits her head, and nobody knew about the child?
“It’s not an eternity, but how long is too much?”
Invariably in the height of summer or winter a horrific story surfaces of a tragedy involving a child left in a car. The Washington Post reported that 606 children left unattended in vehicles have died from heatstroke since 1998.
But in the same recent story, the Post, reporting on a survey of 1,000 parents and caregivers conducted by Public Opinion Strategies, revealed almost seven in 10 parents were aware of the horror stories but were still OK with leaving kids unattended in cars.
There is proposed legislation in the New York State Legislature to criminalize leaving a child unattended in a motor vehicle, but law enforcement and prosecutors are concerned how any law could be worded that could fit all situations, ranging from the age of the child to weather conditions to length of time left alone, among others.
“How old does a kid have to be to babysit?” asked Saratoga Springs Police Lt. Robert H. Jillson. “I can’t say it’s black and white. It’s in the gray.
“When you go to one of these [calls] you look at the circumstances as a whole,” he continued. “Are they always slam dunks? No.”
Murphy was more blunt.
“It’s impossible to craft,” he said. “The New York statute for endangering is broad enough and can be applied on a fact-by-fact basis.”
Schenectady County District Attorney Robert Carney agreed such a law would be difficult to compose, even while conceding existing law can be applied unevenly in these cases.
“You can paint a scenario where it’s not a crime, and another where it is,” he said. “It’s not preferential behavior. But is it a crime?
“You probably just shouldn’t do it.”