A Law Primer for Risky Behavior in Minors

By Frederic S. Ury, and Dolce McLean

Introduction

As most of us who are parents know, raising children is one of the most challenging things we have ever done. There is no textbook or Web site we can look to for all the right answers. In fact there are probably more questions than there are answers. Do we serve alcohol to minor children? Are we better off having that teen party at our house where we can monitor behavior? Do we let our child stay at home alone on the weekend? Do we let our fifteen-year-old daughter date a seventeen-year-old boy? Do we monitor our child’s computer use? Do we restrict…and on and on the questions go.

There are probably very few right answers because each child is different and looks at the world in his or her own individual way. Parents bring with them to the job of parenting the influences of their own upbringing and life experiences. On top of every unique family arrangement, the influence of the media, friends, the Internet, religion, and other adults is added. In many instances, these outside influences have more to say about how our child acts than we would like to believe.

But on top of all the above there is the law. There are statutes, administrative procedures, and cases which try to establish some parameters for behavior by minors. As attorneys, we get calls all the time from our friends and neighbors who think that we have all the legal answers. Over the years in our office we have put together a handout concerning the various laws governing risky behavior by minors. What follows is an article discussing those areas. It is not intended to be an exhaustive survey of the law in any one area but is intended to help you as a parent to educate your children and to be prepared when trouble arises or to help you answer that call on Saturday morning at 7:00 a.m. from your neighbor about liability for the underage drinking which went on at that neighbor’s house the night before while he or she was at a dinner party with…well, you know how the story goes.

Liability for Underage Drinking

With startling information about underage drinking as a national problem, there are many state campaigns in existence to increase awareness of the issue and to reduce and eliminate alcohol consumption among underage drinkers. In Connecticut, the Coalition to Stop Underage Drinking estimates that junior and senior high school student drinkers consume an estimated 35 percent of all wine coolers and 1.1 billion cans of beer annually.¹ Given the many print and television commercials that portray drinking as inherent to socializing and fun, underage drinkers get messages that reinforce alcohol consumption as behavior that is socially acceptable and normative. Additionally, many underage drinkers obtain alcohol from their parents, in their homes, or from other adults who legitimize alcohol consumption as a rite of passage for minors, without considering possible negative consequences. Many national surveys link an increase in traffic injuries and fatalities to underage drinkers driving under the influence. Alcohol consumption by adolescent drinkers is also associated with and is often implicated in youthful sexual offenses, youthful involvement with illegal drugs, and various types of antisocial behavior that are disruptive to the learning process and the academic environment.

Apart from the social and public health issues associated with underage drinking, parents should also be aware of the potential legal liability presented when they know of or facilitate the consumption of alcohol by their minor children. A growing alarm means that states are expending more money and efforts to combat underage drinking—including strict enforcement of drinking laws against parents (who may believe that it is safer to have their minor children drinking in the home) and against minors (who may believe that their age shields them from any legal responsibility). The idea behind drinking laws is that if adults and minors understand that they can be civilly and criminally liable for underage alcohol indulgence, they will be more cautious in making liquor easily available to underage persons.

Civil

Ordinarily, parents are not responsible for the torts (wrongs) of their minor children. Kaminski v. Fairfield, 216 Conn. 29, 34 (1990). However, parents can be held liable for negligent behavior of a minor if those actions are a result of parental negligence or of a failure to restrain a minor with known, dangerous tendencies. Additionally, a parent is under a duty to exercise reasonable care to control a minor child so as to prevent the child from intentionally harming others or from creating an unreasonable risk of harm. Restatement (Second) of Torts; Natale v. Caron, 1997 WL 297739 *1; C.G.S. § 52-572, Parental Liability for Torts of Minors. Accordingly, when a parent makes alcohol available to minors and this action results in injury to third parties or causes damage to property, Connecticut courts have frequently held that parent liable. They have done so on a variety of bases, including negligence, negligent supervision, premises liability, social host liability, and reckless/wanton misconduct. A court may be willing to hold a parent liable even if the parent is absent from the scene of consumption but knows of the minor’s dangerous propensity with regard to alcohol and fails to exercise required control over the minor. Burke v. Fitzgerald, 1997 WL 600087 *1, *2.

Specifically, with respect to social host liability, parents are presumed to be responsible for the acts of their minor children and the children’s peers that take place in the home or on the property. Liability has not yet been extended to cover situations in which a parent merely knows of or acquiesced in a minor’s storage of alcohol in the home, Rangel v. Parkhurst, 1999 WL 1241936 *1. However, Connecticut courts consistently have found that a parent can be held liable as a social host where the parent was present on the premises at the time the alcohol was ingested and where the parent knew of and/or supplied alcohol to the minor. Marinaccio v. Zaczynski, 1998 WL 272807 *1, *6; Murphy v. LaChapell, 1999 WL 368069 *1; Ely v. Murphy, 207 Conn. 88, 93 (1988). A parent who is found legally responsible under a social host theory of liability may be accountable for large money damages. Parents should not assume that their homeowners’ insurance can cover such liability; they must verify that the policy includes such coverage and that the language of exclusions does not preclude the circumstances surrounding the event that is the subject of a social host lawsuit.

In addition to holding adults responsible for knowingly providing alcohol to minors, minors themselves can be found liable (Murphy v. LaChapell, 1999 WL 368069 at *2; Pepin v. Cacchillo, 1998 WL 518560; Madigan v. Kerrigan, 1997 WL 566101) and can be potentially liable for reckless or wanton conduct in that regard. LeBrun v. Callahan, 1991 WL 86170 *1. As a result of growing national and statewide concerns about underage drinking, Connecticut courts have evidenced a willingness to treat minors as adults in these cases. Connecticut law defines a minor as anyone under the age of eighteen. However, there is an exception to the statutory definition of minors in the Connecticut Liquor Control Act § 30-1(12), which establishes the legal drinking age as twenty-one. This means that youths older than eighteen but still under the age of twenty-one can be considered adults for the purposes of tort liability. Marinaccio v. Zaczynski at 3; C.G.S. § 1-1d and § 52-572h.

Criminal

Aside from civil liability, a minor (and other persons) involved in underage drinking can be subject to criminal liability. Due to national efforts to prevent underage alcohol use, states are trying to enhance and enforce drinking laws that impose criminal liability in connection with alcohol consumption by minors. Connecticut is one of the states that seeks to impose criminal sanctions under theories of liability that include risk of injury to a minor and culpable negligence for permitting underage drinking that results in criminal behavior.² Criminal sanctions vary in degree and severity and include fines, community service, drug and alcohol rehabilitation courses, suspension or revocation of licenses, probation, and imprisonment.

The following Connecticut statutes define some prohibited behaviors and their attendant penalties.

• C.G.S. § 30-86 imposes criminal liability on any permittee or employee of a permittee who delivers or gives alcohol to minors. The penalty for violation is not more than an eighteen-month prison sentence and/or a fine of not more than $1,500.
• C.G.S. § 30-87 imposes, with certain exceptions, criminal liability on any person who induces a minor to procure alcohol from any person permitted to sell alcohol. The penalty for violation is not more than a one-year prison sentence and/or a fine of not more than $1,000.
• C.G.S. § 30-88a provides that any person under age twenty-one who misrepresents his or her age or shows/uses the license of another person for the purpose of purchasing alcohol, shall be fined not less than $200–$500 or imprisoned not more than thirty days, or both. It also provides that any minor who possesses alcohol in a public place and who is not accompanied by a parent or guardian will be subject to the same penalty.
• C.G.S. § 30-89 imposes criminal liability on minors who purchase alcohol or who merely possess alcohol in public places. It imposes a fine of $200–$500.
• C.G.S. § 14-111a provides that any person under the legal drinking age of twenty-one who operates a motor vehicle in which alcohol is found may be summoned to appear at a show cause hearing to establish why his or her license should not be revoked. Violation can result in license revocation for sixty days.
• C.G.S. § 14-111e provides that the driver’s license of anyone under age twenty-one who is convicted of a violation of Section 30-88a involving the misuse of an operator’s license or Section 30-89 involving the purchase/possession of alcohol shall be suspended for 150 days. Any person charged with the foregoing who does not have a valid driver’s license shall not be issued a license until the expiration of 150 days following that person’s application for a license.
• C.G.S. § 14-227a provides that any person who operates a motor vehicle (a) while intoxicated or (b) with an elevated blood alcohol content shall be subject to the following penalties: for first conviction of a first violation of (a)(i) fined not less than $500 nor more than $1000 and imprisoned for not more than six months, forty-eight hours of which may not be suspended, or (ii) imprisoned not more than six months, suspended sentence, with probation including 100 hours of community service and suspension of license for three years. The penalties grow progressively stiffer for subsequent violations. On the third violation the license will be permanently revoked.
• C.G.S. § 53a-213 provides that drinking while operating a motor vehicle applies to all persons charged with drinking alcoholic liquors while driving and is a Class C misdemeanor. A Class C misdemeanor is punishable by three months imprisonment and/or a fine of $500.

In addition to the above, C.G.S. § 10-233h provides that if a minor is arrested and is over the age of seven but under the age of twenty-one and a public school student, the police department is required to report the arrest to the superintendent of the minor’s school district.

Illegal Drugs

The problems and penalties that attend underage drinking are rarely publicized given that underage drinkers make up a large portion of the consumer base for a lot of alcoholic beverages. The association of alcohol with youth, good times, and confident social behavior makes drinking a powerful attraction for minors who tend to want to imitate what others in their peer group are doing. Unfortunately, peer pressure to use one drug can lead to peer pressure to use other drugs as well; more often than not, some underage drinkers also indulge in illegal drug use. A recent article published in The American Journal of Psychiatry indicates that adolescents may be more vulnerable to alcohol and drug addiction because of social factors as well as biological and neurological developments in the brain that are associated with the thrill of new experiences.³ The tendency to engage in novel experiences that could involve drugs and alcohol may be motivating to adolescents, but it can have serious personal and legal consequences. In addition to the risk of abuse and addiction, the criminal penalties for possession of illegal drugs are generally more severe than for possession of alcohol. Furthermore, possession with intent to sell is a more serious offense than possession alone.

Among the statutes governing liability for possession/sale of illegal drugs is C.G.S. § 21a-277. It provides that any person who sells, gives, or possesses with intent to sell controlled substances other than marijuana may be fined not more than $50,000 and imprisoned for up to fifteen years or both for the first offense. If the person to whom the dealer has sold/given the drugs is under eighteen and two years younger than the seller, an additional two years are added to the sentence and, if the sale/distribution is within 1,500 feet of a public school, private school, daycare, or public housing project, the additional sentence is increased to three years. C.G.S. § 21a-278a.

Additionally, pursuant to C.G.S. § 21a-279, any person who possesses any quantity of any narcotic substance may be imprisoned seven years and fined up to $50,000 for the first offense; for any subsequent offenses, he or she may be imprisoned up to twenty-five years and fined up to $250,000 or both. Any person who possesses a hallucinogenic drug or four ounces or more of marijuana may be imprisoned for up to five years and fined up to $2,000 for a first offense; for a subsequent offense, he or she may be imprisoned more than ten years or fined not more than $5,000. Possession of less than four ounces of marijuana subjects the person to a $1,000 fine and/or imprisonment for up to one year. Any person arrested for the foregoing within 1,500 feet of a school in which that person is not enrolled is subject to an additional mandatory two-year prison term.

Sexual Offenses

One problem that is often linked to alcohol (and drug) consumption among underage drinkers is the high occurrence of sexual offenses. Alcohol and drug use are often to blame for unwanted sexual encounters because they decrease and impair cognitive ability to recognize and resist sexual aggression. Drug and alcohol use influence the way that men and women perceive behavior and body language and can lead perpetrators to assume that victims want to have sex. Although most stories of sexual assault seem to involve male perpetrators and female victims, sexual assault laws protect the rights of every individual to be free from unwanted sexual victimization, regardless of gender. While alcohol and drug use contribute to an environment that can lead to unwanted sexual experiences, it is important to remember that sexual assault is an act of power and domination that is illegal.

Many people are socialized to believe that sexual assault is somehow self-generated and, therefore, the victim is at fault. Legally the rights of victims are important and individuals should feel compelled to report sexual offenses and to seek medical and emotional help. Additionally, victims should know that their unwanted sexual experience could fit into one of many different types of sexual offenses that are legally recognized. Sexual offenses are varied and range from sexual assault in the first degree (generally involving use of force) to sexual assault in the fourth degree (sexual contact with specified classes of individuals). Sexual assault in the second degree involves sexual intercourse between someone age thirteen to sixteen and an actor at least two years older than the victim. Sexual intercourse means vaginal or anal intercourse, fellatio, or cunnilingus. Nine months of any sentence imposed for violation of this statute may not be suspended or reduced. A defendant may also be charged with violation of C.G.S. § 53-21, Risk of Injury to a Minor, for a sexual assault violation, as already discussed in relation to criminal penalties for supplying alcohol to minors.

Even if a victim conveys the impression that he or she is willing to have sex, there must be verbal consent to the sexual act to avoid criminal penalties. Furthermore, alcohol and drug influence are not legal defenses to criminal behavior, and any type of penetration, however slight, is sufficient to put a perpetrator in violation of Connecticut sexual offense laws. In addition, penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. C.G.S. § 53a-71. Violation of this statute is a Class C felony or, if the victim is under sixteen, a Class B felony.

Expulsion from Public School

Expulsion hearings can provide one of the most challenging forums in which an attorney can practice. The stakes are very high. Expulsion from high school for a junior or senior can carry lifetime consequences. In many instances, the penalties within the school system are much harsher than those meted out in the courts. For example, in a number of towns, school boards are attempting to expel students for activities such as fights or drug possession, which are treated by the court system with mediation, a drug program, or probation. While Connecticut recognizes that education is a fundamental right for minors,⁴ the state still has the legal right to control the school environment in the compelling interest of training minors to become productive participants in an orderly society. Therefore, the minor who attends a public school does not have an absolute right to do so. Accordingly, when a public school student engages in behavior classified as unacceptable, that student may be expelled after notice and a hearing. The state, vis-à-vis local school boards, has broad discretion in the exercise of control over the school environment because it has a legitimate interest in preserving certain behavioral standards for the safety of other students. Minors have rights, but those rights are lessened in an educational setting because minors are presumptively under the control of adults. In the educational setting, school administrators assume the role of adults who have a compelling interest to maintain order and discipline.

The student who routinely engages in disruptive behavior could face multiple suspensions and possible eventual expulsion. Connecticut General Statutes § 10-233d provides that any pupil who engages in disruptive behavior on school grounds or at school-sponsored activities is subject to expulsion. Moreover, state statute provides that public school students can also be expelled for conduct occurring off school grounds where the conduct is “seriously disruptive of the educational process.” C.G.S. § 10-233d(a)(1). Some examples of unacceptable behavior include the issues that have already been discussed, such as sexual assault and alcohol and drug use. Additional factors include whether the incident occurred on or in close proximity to the school, whether other students were involved, and whether violence and/or a weapon was involved. A mandatory one-year expulsion will be imposed where the student was on school grounds or at a school-sponsored activity in possession of a firearm or other deadly weapon, off school grounds in possession of a weapon in commission of a further criminal offense, and on or off school grounds if the student offered for sale or distribution a controlled substance (although the term may be modified on a case-by-case basis). Notice of the expulsion and the reasons for the expulsion are required to become part of the student’s educational record.

Conclusion

After reading many of the cases and statutes, it is amazing that we let our children out of the house at all. But preventing them from leaving is probably a violation of some statute. So off they go into the world. Best they go with some knowledge of the law. Hopefully this article has provided that. CL

This article was prepared by Frederic S. Ury, and Dolace McLean, summer law clerk, all of Ury & Moskow LLC of Fairfield, Connecticut.

Notes

• Adults risk potential criminal liability for providing drugs or alcohol to minors pursuant to Conn. Gen. Stat. § 53-21, Risk of Injury to a Minor, and State of Connecticut v. Mancinone, 15 Conn. App. 251, 276. Violation of this statute is a Class C felony for which a prison sentence of not less than one year nor more than ten and/or a fine of $10,000 is imposed.
• Chambers, et al. “Developmental Neurocircuitry of Motivation in Adolescence: A Critical Period of Addiction Vulnerability,” The American Journal of Psychiatry 160:1041-1052 (June 2003).
• See Horton v. Meskill, 172 Conn. 615 (1977).

Reprinted with the permission of the Connecticut Lawyer.