The Volokh Conspiracy - "Criminalizing [Children's] Communion?"

The Arkansas House of Representatives just passed An Act to Provide Criminal Liability for a Social Host Who Knowingly Serves Alcohol to Persons Under the Age of 21 ...:

3-3-219(a)(1) A person who exercises control over private property shall not knowingly allow a person under twenty-one (21) years of age who is not a child or ward of the person to:
(A) Consume alcohol on the private property; or
(B) Remain on the private property if the person under twenty-one (21) years of age consumes an alcoholic beverage on the property.
(2) This subsection applies only to a person who is present and in control of the private property at the time the consumption occurs.

(b)(1) A first violation of this section is a Class C misdemeanor.
(2) A second violation of this section is a Class A misdemeanor.
(3) A third or subsequent violation of this section is a Class D felony.

But as my friend Dan Greenberg, an Arkansas state legislator, points out:

Does this bill give an incentive for unmonitored underage drinking to occur? I think so, and I also think that the law would be better if it went the other way -- that is, to give an incentive for an adult to stick around and keep an eye on the problem, rather than leave. I understand that a couple of teenagers sitting around drinking beer is hardly an ideal situation, but this new bill makes the problem much worse by discouraging adult monitoring of any kind....

[Also,] I tend to think that a legal requirement to order a child off your property [see (a)(1)(B)] has its own set of problems. Maybe [the child] has a cell phone and can call for a ride, or maybe she can walk home. I hope so, and I hope she hasn't had much to drink. And I hope it's not too late at night -— especially once the new law we voted for last week kicks in and it's a ticketable offense for a minor to drive from 11 p.m. to 4 a.m. Maybe if she has a car outside, her best bet is just to lock the doors and sleep it off....

This will [also] be a big problem for some religious communities, given that as far as I can tell we have just criminalized children's Communion. (This is a traditional Catholic practice in which a child takes a tiny, ceremonial sip of wine.) Similar rites take place in some Jewish, Episcopalian, and Lutheran congregations -— and probably others, but I am just a lawyer and legislator and not a scholar of comparative religions....

Finally, the problem this bill's trying to solve is already addressed in current state law. It's already a criminal offense to "give, procure, or otherwise furnish" alcohol to someone under 21 (and that law, unlike this one, exempts religious ceremonies). It's also a criminal offense to contribute to the delinquency of a minor. Both of those offenses, already on the books, carry harsher criminal penalties than this bill....

I spoke against this bill on the floor of the House. I wasn't successful....

After we voted, the bill's sponsor came over and assured me that the bill would be amended in the Senate to fix some of its problems. I tend to think that the only way to fix this bill's problems is to run it through a shredder, incinerate the remains and bury what's left in a big hole.

	[Eugene Volokh, March 17, 2009 at 1:00am] Trackbacks "Criminalizing [Children's] Communion?" The Arkansas House of Representatives just passed An Act to Provide Criminal Liability for a Social Host Who Knowingly Serves Alcohol to Persons Under the Age of 21 ...: 3-3-219(a)(1) A person who exercises control over private property shall not knowingly allow a person under twenty-one (21) years of age who is not a child or ward of the person to: (A) Consume alcohol on the private property; or (B) Remain on the private property if the person under twenty-one (21) years of age consumes an alcoholic beverage on the property. (2) This subsection applies only to a person who is present and in control of the private property at the time the consumption occurs. (b)(1) A first violation of this section is a Class C misdemeanor. (2) A second violation of this section is a Class A misdemeanor. (3) A third or subsequent violation of this section is a Class D felony. But as my friend Dan Greenberg, an Arkansas state legislator, points out: Does this bill give an incentive for unmonitored underage drinking to occur? I think so, and I also think that the law would be better if it went the other way -- that is, to give an incentive for an adult to stick around and keep an eye on the problem, rather than leave. I understand that a couple of teenagers sitting around drinking beer is hardly an ideal situation, but this new bill makes the problem much worse by discouraging adult monitoring of any kind.... [Also,] I tend to think that a legal requirement to order a child off your property [see (a)(1)(B)] has its own set of problems. Maybe [the child] has a cell phone and can call for a ride, or maybe she can walk home. I hope so, and I hope she hasn't had much to drink. And I hope it's not too late at night -— especially once the new law we voted for last week kicks in and it's a ticketable offense for a minor to drive from 11 p.m. to 4 a.m. Maybe if she has a car outside, her best bet is just to lock the doors and sleep it off.... This will [also] be a big problem for some religious communities, given that as far as I can tell we have just criminalized children's Communion. (This is a traditional Catholic practice in which a child takes a tiny, ceremonial sip of wine.) Similar rites take place in some Jewish, Episcopalian, and Lutheran congregations -— and probably others, but I am just a lawyer and legislator and not a scholar of comparative religions.... Finally, the problem this bill's trying to solve is already addressed in current state law. It's already a criminal offense to "give, procure, or otherwise furnish" alcohol to someone under 21 (and that law, unlike this one, exempts religious ceremonies). It's also a criminal offense to contribute to the delinquency of a minor. Both of those offenses, already on the books, carry harsher criminal penalties than this bill.... I spoke against this bill on the floor of the House. I wasn't successful.... After we voted, the bill's sponsor came over and assured me that the bill would be amended in the Senate to fix some of its problems. I tend to think that the only way to fix this bill's problems is to run it through a shredder, incinerate the remains and bury what's left in a big hole.