Bill S5893A-2009

Extends the statute of limitations in criminal and civil actions for certain sex offenses committed against a child less than eighteen years of age

Establishes the period of limitation for the prosecution of a sex offense defined in article 130 of the penal law, incest or use of a child in a sexual performance committed against a person less than eighteen years of age shall not begin to run until the person has reached the age of twenty-three or the offense is reported to law enforcement or the statewide central register of child abuse and maltreatment, whichever occurs earlier; allows civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered as a result of conduct that is a sex offense as defined in article 130 of the penal law, incest or use of a child in a sexual performance committed against a child who was less than eighteen years of age at the time shall be allowed to be commenced five years after the child reaches the age of twenty-three; revives for 1 year, any such civil claim or cause of action which was barred because the applicable statute of limitations expired.

Details

Actions

  • Jun 2, 2010: CONSIDERED BY COMMITTEE - DEFEATED
  • May 3, 2010: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
  • Apr 8, 2010: PRINT NUMBER 5893A
  • Apr 8, 2010: AMEND AND RECOMMIT TO CODES
  • Jan 6, 2010: REFERRED TO CODES
  • Jun 18, 2009: REFERRED TO RULES

Votes

VOTE: COMMITTEE VOTE: - Codes - Jun 2, 2010
Ayes (5): Schneiderman, Parker, Sampson, Perkins, Squadron
Ayes W/R (1): Duane
Nays (10): Breslin, Huntley, Klein, Volker, Saland, DeFrancisco, Bonacic, Golden, Lanza, Flanagan

Memo

 BILL NUMBER:  S5893A             REVISED 04/22/10

TITLE OF BILL : An act to amend the criminal procedure law, in relation to the timeliness of prosecutions for certain sex offenses; and to amend the civil practice law and rules, in relation to the timeliness for commencing certain civil actions related to sex offenses

PURPOSE : The bill amends the Criminal Procedure Law and the Civil Practice Law and Rules to extend the statute of limitations for criminal and civil actions for sex offenses under article one hundred thirty of the Penal Law committed against a child less than eighteen years of age, for incest against a child less then eighteen years of age or the use of a child in a sexual performance.

SUMMARY OF PROVISIONS : Section one of the bill amends the Criminal Procedure Law to increase the criminal statute of limitation for the prosecution of certain sex offenses committed against a child under the age of eighteen, for incest against a child less then eighteen years of age or the use of a child in a sexual performance. The period of limitation would not begin to run until the child reaches the age of 23 years or the offense is reported to a law enforcement agency or the statewide central register of child abuse and maltreatment.

Section two of the bill would extend the civil statute of limitation for causes of action to remedy injuries or conditions suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.25, 255.26 or 255.27 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law. Such action would have to be commenced within five years after the child reaches the age of 23 years. Under current law, the criminal statute of limitations in child sexual abuse cases in which a victim does not report the crime to law enforcement is not applied until the victim reaches age 18. This bill would add five years to the statute; so that the five year statute of limitations in such cases would not begin to run until the victim turned age 23 (extending the time for prosecution until a child victim reached age 28).

Section three of the bill would revive expired civil causes of action based on conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.25, 255.26 or 255.27 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law. Persons for whom the right to bring a civil action has been foreclosed because of the current civil statute of limitations bar would be given a one-year "window period" from the date of enactment of the bill. To recover damages for any past instance of child sexual abuse the civil claim must be commenced within forty years of the effective date of this section or commenced within forty years of such child reaching the age of eighteen years. Prior to the commencement of the action, the plaintiff must obtain a certificate of merit by a mental health expert that states in reasonable detail the facts and opinions relied upon for concluding that the plaintiff was a victim of sexual abuse. The complaint shall be accompanied by a certificate of merit as described in subdivision (c) of this section.

Section four would removes notice of claim as condition precedent.

Section five of the bill is a savings clause.

Section six of the bill is the effective date. The bill would take effect immediately.

JUSTIFICATION : Sex crimes, particularly those committed against children, are among the most heinous and deeply disturbing in our society. They are crimes that leave life-long scars, multiple victims and require an all encompassing strategy to combat. This proposal would extend the authority to prosecute and to bring a civil lawsuit for damages in child sexual abuse cases in three significant ways, regardless of whether or not DNA evidence is available. This bill will provide a remedy for those whose lives have been unalterably changed by the horror of childhood sexual abuse. Victims of these horrific crimes will get their day in court and be able to seek the justice they have been denied.

LEGISLATIVE HISTORY : A.11723/S.8053 - June 20, 2006 Passed in the Assembly A.4560/S.4614 - June 4, 2007 Passed in the Assembly A.4560B/S.4614A - June 11, 2008 Passed in the Assembly

FISCAL IMPLICATIONS : None.

LOCAL FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : Immediately.

Text

STATE OF NEW YORK ________________________________________________________________________ 5893--A 2009-2010 Regular Sessions IN SENATE June 18, 2009 ___________
Introduced by Sens. HASSELL-THOMPSON, ESPADA, HUNTLEY, KRUEGER, MONTGOM- ERY, OPPENHEIMER, PARKER, SAMPSON, SCHNEIDERMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law, in relation to the timeli- ness of prosecutions for certain sex offenses; and to amend the civil practice law and rules, in relation to the timeliness for commencing certain civil actions related to sex offenses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (f) of subdivision 3 of section 30.10 of the criminal procedure law, as separately amended by chapters 3 and 320 of the laws of 2006, is amended to read as follows: (f) For purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law, other than a sexual offense delineated in paragraph (a) of subdivision two of this section, committed against a child less than eighteen years of age, incest in the first, second or third degree as defined in sections 255.27, 255.26 and 255.25 of the penal law committed against a child less than eighteen years of age, or use of a child in a sexual perform- ance as defined in section 263.05 of the penal law, the period of limi- tation shall not begin to run until the child has reached the age of [eighteen] TWENTY-THREE or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier. S 2. The opening paragraph of section 208 of the civil practice law and rules is designated subdivision (a) and a new subdivision (b) is added to read as follows:
(B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION, WITH RESPECT TO ALL CIVIL CLAIMS OR CAUSES OF ACTION BROUGHT BY ANY PERSON FOR PHYSICAL, PSYCHOLOGICAL OR OTHER INJURY OR CONDITION SUFFERED AS A RESULT OF CONDUCT WHICH WOULD CONSTITUTE A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, INCEST AS DEFINED IN SECTION 255.25, 255.26 OR 255.27 OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, OR THE USE OF A CHILD IN A SEXUAL PERFORM- ANCE AS DEFINED IN SECTION 263.05 OF THE PENAL LAW, OR A PREDECESSOR STATUTE THAT PROHIBITED SUCH CONDUCT AT THE TIME OF THE ACT, WHICH CONDUCT WAS COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, THE TIME WITHIN WHICH THE ACTION MUST BE COMMENCED SHALL BE EXTENDED TO FIVE YEARS AFTER THE PERSON REACHES THE AGE OF TWENTY-THREE YEARS. S 3. The civil practice law and rules is amended by adding a new section 3012-b to read as follows: S 3012-B. CERTAIN CHILD SEXUAL ABUSE CASES; CERTIFICATE OF MERIT. (A) NOTWITHSTANDING ANY PROVISION OF LAW WHICH IMPOSES A PERIOD OF LIMITA- TION TO THE CONTRARY, EVERY CIVIL CLAIM OR CAUSE OF ACTION BROUGHT BY A PERSON FOR PHYSICAL, PSYCHOLOGICAL, OR OTHER INJURY OR CONDITION SUFFERED AS A RESULT OF CONDUCT WHICH WOULD CONSTITUTE A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, INCEST AS DEFINED IN SECTION 255.25, 255.26 OR 255.27 OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, OR THE USE OF A CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION 263.05 OF THE PENAL LAW, OR A PREDE- CESSOR STATUTE THAT PROHIBITED SUCH CONDUCT AT THE TIME OF THE ACT, WHICH CONDUCT WAS COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, WHICH IS BARRED AS OF THE EFFECTIVE DATE OF THIS SECTION BECAUSE THE APPLICABLE PERIOD OF LIMITATION HAS EXPIRED IS HEREBY REVIVED, AND ACTION THEREON MAY BE COMMENCED PROVIDED THAT SUCH ACTION IS COMMENCED WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS SECTION. (A-1) ANY CIVIL CLAIM OR CAUSE OF ACTION BROUGHT PURSUANT TO SUBDIVI- SION (A) OF THIS SECTION MAY ONLY BE COMMENCED FOR CONDUCT COMMITTED AGAINST SUCH CHILD FORTY YEARS OR LESS BEFORE THE EFFECTIVE DATE OF THIS SECTION OR COMMENCED WITHIN FORTY YEARS OF SUCH CHILD REACHING THE AGE OF EIGHTEEN YEARS. (B) IN ANY ACTION BROUGHT PURSUANT TO SUBDIVISION (A) OF THIS SECTION FOR PHYSICAL, PSYCHOLOGICAL, OR OTHER INJURY OR CONDITION SUFFERED AS A RESULT OF CONDUCT WHICH WOULD CONSTITUTE A SEXUAL OFFENSE AS DESCRIBED IN SUBDIVISION (A) OF THIS SECTION, THE COMPLAINT SHALL BE ACCOMPANIED BY A CERTIFICATE OF MERIT AS DESCRIBED IN SUBDIVISION (C) OF THIS SECTION. (C) A CERTIFICATE OF MERIT FILED PURSUANT TO SUBDIVISION (B) OF THIS SECTION SHALL BE FILED BY THE ATTORNEY FOR THE PLAINTIFF AND SHALL CONTAIN A NOTARIZED STATEMENT BY A QUALIFIED PSYCHIATRIST, AS DEFINED IN SECTION 9.01 OF THE MENTAL HYGIENE LAW, A PSYCHOLOGIST AS LICENSED PURSUANT TO ARTICLE ONE HUNDRED FIFTY-THREE OF THE EDUCATION LAW, OR A PERSON IN THE PRACTICE OF MENTAL HEALTH COUNSELING, AS DEFINED IN SUBDI- VISION ONE OF SECTION EIGHTY-FOUR HUNDRED TWO OF THE EDUCATION LAW, WHO IS KNOWLEDGEABLE IN THE RELEVANT FACTS AND ISSUES INVOLVED IN THE PARTICULAR ACTION, AND STATES IN REASONABLE DETAIL THE FACTS AND OPIN- IONS THAT THE PERSON HAS RELIED UPON FOR CONCLUDING THAT THERE IS A REASONABLE BASIS TO BELIEVE THAT THE PLAINTIFF HAS BEEN SUBJECT TO ONE OR MORE ACTS OF CHILD SEXUAL ABUSE OF THE TYPE DESCRIBED IN SUBDIVISION (A) OF THIS SECTION. THE PERSON PROVIDING SUCH STATEMENT MAY NOT BE A PARTY TO THE LITIGATION.
(D) WHERE A CERTIFICATE IS REQUIRED PURSUANT TO THIS SECTION, A SINGLE CERTIFICATE SHALL BE FILED FOR EACH ACTION, EVEN IF MORE THAN ONE DEFENDANT HAS BEEN NAMED IN THE COMPLAINT OR IS SUBSEQUENTLY NAMED. S 4. The civil practice law and rules is amended by adding a new section 214-f to read as follows: S 214-F. ACTION BY VICTIM OF CONDUCT CONSTITUTING CERTAIN SEXUAL OFFENSES AND NOTICE OF CLAIM AS CONDITION PRECEDENT. SECTIONS FIFTY-E AND FIFTY-I OF THE GENERAL MUNICIPAL LAW, SECTION THIRTY-EIGHT HUNDRED THIRTEEN OF THE EDUCATION LAW AND THE PROVISIONS OF ANY GENERAL, SPECIAL OR LOCAL LAW OR CHARTER REQUIRING AS A CONDITION PRECEDENT TO COMMENCE- MENT OF AN ACTION OR SPECIAL PROCEEDING THAT A NOTICE OF A CLAIM BE FILED OR PRESENTED WITHIN A SPECIFIED PERIOD OF TIME AFTER THE CLAIM OR ACTION OR ACTION ACCRUED, SHALL NOT APPLY TO ANY CLAIM MADE FOR PHYS- ICAL, PSYCHOLOGICAL, OR OTHER INJURY OR CONDITION SUFFERED AS A RESULT OF CONDUCT OF A DEFENDANT WHICH WOULD CONSTITUTE A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, INCEST AS DEFINED IN SECTION 255.25, 255.26, OR 255.27 OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, OR THE USE OF A CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION 263.05 OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE. S 5. The provisions of this act shall be severable, and if any clause, sentence, paragraph, subdivision or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdi- vision or part thereof directly involved in the controversy in which such judgment shall have been rendered. S 6. This act shall take effect immediately.

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