For the Defense - Vol. 6, Issue 4 - 13

injured.12 There was no evidence of unsafe driving prior
to the accident.
(The OAJC defined cars-for-hire as taxis, jitneys and rideshare
vehicles, but not rental cars in which the parent is
the driver.)13
The trial judge found Ms. Howard guilty of EWOC and
recklessly endangering another person ( " REAP " ).14
Ms.
Howard received one year of probation on the former
count, and no further penalty on the latter.15
A divided Superior Court panel reversed on the REAP
count but upheld the EWOC conviction. The majority
reasoned, in part, that a conviction under Section
4304(a)(1) " only requires proof of circumstances that
could threaten the child's physical or psychological
welfare, " which is weaker than the language from
Cardwell.16
The dissent argued that it was too harsh
to use the Crimes Code, rather than the Motor Vehicle
Code ( " MVC " ), to punish Ms. Howard's conduct.17
In the Supreme Court, Ms. Howard argued that the
Superior Court used an incorrect and overly broad
standard for EWOC's mens rea, and maintained that courts
must use Section 302(b)(2)(ii) to define " knowingly. "
Ms. Howard also argued that her actions did not offend
the common sense of the community, and, instead, were
a parental judgment call made in a difficult situation.
She maintained that her conduct paled in comparison
to parental behavior in cases where courts have upheld
EWOC convictions, such as those involving sexual or
physical abuse or the failure to seek medical care when
the risk of death was readily apparent.
The Supreme Court issued a split decision, with six out
of seven justices believing the EWOC conviction should
be reversed, albeit for different reasons. Two justices
joined the OACJ,18
there were three concurring opinions,
and one justice dissented.
Why the Mens Rea for EWOC Needed Clarification
EWOC requires
in
relevant
part
that the accused
" knowingly endanger[] the welfare of the child by
violating a duty of care, protection or support. " 19
Under Section 302(b)(2), " A person acts knowingly with
respect to a material element of an offense when: (i) if
the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is
of that nature of that such circumstances exist; and (ii) if
the element involves a result of his conduct, he is aware
that it is practically certain that his conduct will cause
such a result. " 20
Despite the Section 302(b)(2) definition, the Superior
Court has long used a separate test to determine the
intent element of Section 4304(a)(1). Under it, a person
acts knowingly if: (1) he is aware of his duty to protect
the child; (2) he is aware that the child is in circumstances
that threaten or could threaten21
the child's physical or
psychological welfare; and (3) he has either failed to act
or has taken action so lame or meager that such actions
cannot reasonably be expected to protect the child's
welfare.22
As the OAJC noted, the Superior Court first employed
this test in Cardwell, without specifically analyzing
Section 302(b)(2).23
Vol. 6, Issue 4 l For The Defense 13
For the Defense - Vol. 6, Issue 4

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