Bill Text: NJ A2681 | 2012-2013 | Regular Session | Introduced
Bill Title: "Child Protection Act of 2012": amends statute of limitations for civil actions concerning sexual abuse; implements training programs for certain persons who work with children; establishes requirement for certain criminal background checks.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced - Dead) 2012-03-08 - Introduced, Referred to Assembly Judiciary Committee [A2681 Detail]
Download: New_Jersey-2012-A2681-Introduced.html
Sponsored by:
Assemblyman LOUIS D. GREENWALD
District 6 (Burlington and Camden)
SYNOPSIS
"Child Protection Act of 2012": amends statute of limitations for civil actions concerning sexual abuse; implements training programs for certain persons who work with children; establishes requirement for certain criminal background checks.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning child sexual abuse and designated the "Child Protection Act of 2012," amending and supplementing various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2A:14-2 is amended to read as follows:
2A:14-2. a. [Every] Except as provided in subsections b. and c. of this section, every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued[; except that an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor's 13th birthday].
b. (1) An action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor's 13th birthday.
(2) In the event that an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth is not commenced by the minor's parent or guardian prior to the minor's 12th birthday, the minor or a person 18 years of age or older designated by the minor to act on the minor's behalf may commence such an action. For this purpose, the minor or designated person may petition the court for the appointment of a guardian ad litem to act on the minor's behalf.
c. An action for damages pursuant to section 1 of P.L.1992, c.109 (C.2A:61B-1) shall be commenced in accordance with the provisions of that section.
(cf: P.L.2004, c.17, s.3)
2. Section 1 of P.L.1992, c.109 (C.2A:61B-1) is amended to read as follows:
1. a. As used in this act:
(1) "Sexual abuse" means an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult. A parent, resource family parent, guardian or other person [standing in loco parentis within the household] who knowingly permits or acquiesces in sexual abuse by [any other person] the actor also commits sexual abuse, except that it is an affirmative defense if the parent, resource family parent, guardian or other person [standing in loco parentis] was subjected to, or placed in, reasonable fear of physical or sexual abuse by the [other person] actor so as to undermine the [person's] ability of the parent, resource family parent, guardian or other person to protect the child.
(2) "Sexual contact" means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of sexually arousing or sexually gratifying the actor. Sexual contact of the [adult] actor with himself must be in view of the victim whom the [adult] actor knows to be present.
(3) "Sexual penetration" means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the [adult] actor or upon the [adult] actor's instruction.
(4) "Intimate parts" means the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person.
(5) "Injury or illness" includes psychological injury or illness, whether or not accompanied by physical injury or illness.
b. In any civil action for damages for injury or illness based on sexual abuse, the cause of action shall accrue at the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse.
(1) Any such action against a person who knowingly permitted or acquiesced in child sexual abuse shall be brought within [two] seven years after reasonable discovery.
(2) Any such action against the actor may be commenced at any time.
c. Nothing in this act is intended to preclude the court from finding that the statute of limitations was tolled in a case because of the plaintiff's mental state, duress by the defendant, or any other equitable grounds. Such a finding shall be made after a plenary hearing. At the plenary hearing the court shall hear all credible evidence and the Rules of Evidence shall not apply, except for Rule 403 or a valid claim of privilege. The court may order an independent psychiatric evaluation of the plaintiff in order to assist in the determination as to whether the statute of limitations was tolled.
d. (1) Evidence of the victim's previous sexual conduct shall not be admitted nor reference made to it in the presence of a jury except as provided in this subsection. When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial or preliminary hearing, except that the court may allow the motion to be made during trial if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and that the probative value of the evidence offered is not outweighed by its collateral nature or by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds that such evidence satisfies the standards contained in this section. The defendant may then offer evidence under the order of the court.
(2) In the absence of clear and convincing proof to the contrary, evidence of the victim's sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this section.
(3) Evidence of the victim's previous sexual conduct shall not be considered relevant unless it is material to proving that the source of semen, pregnancy or disease is a person other than the defendant. For the purposes of this subsection, "sexual conduct" shall mean any conduct or behavior relating to sexual activities of the victim, including but not limited to previous or subsequent experience of sexual penetration or sexual contact, use of contraceptives, living arrangement and life style.
e. (1) The court may, on motion and after conducting a hearing in camera, order the taking of the testimony of a victim on closed circuit television at the trial, out of the view of the jury, defendant, or spectators upon making findings as provided in paragraph (2) of this subsection.
(2) An order under this section may be made only if the court finds that the victim is 16 years of age or younger and that there is a substantial likelihood that the victim would suffer severe emotional or mental distress if required to testify in open court. The order shall be specific as to whether the victim will testify outside the presence of spectators, the defendant, the jury, or all of them and shall be based on specific findings relating to the impact of the presence of each.
(3) A motion seeking closed circuit testimony under paragraph (1) of this subsection may be filed by:
(a) The victim or the victim's attorney, parent or legal guardian;
(b) The defendant or the defendant's counsel; or
(c) The trial judge on the judge's own motion.
(4) The defendant's counsel shall be present at the taking of testimony in camera. If the defendant is not present, he and his attorney shall be able to confer privately with each other during the testimony by a separate audio system.
(5) If testimony is taken on closed circuit television pursuant to the provisions of this act, a stenographic recording of that testimony shall also be required. A typewritten transcript of that testimony shall be included in the record on appeal. The closed circuit testimony itself shall not constitute part of the record on appeal except on motion for good cause shown.
f. (1) The name, address, and identity of a victim or a defendant shall not appear on the complaint or any other public record as defined in P.L.1963, c.73 (C.47:1A-1 et seq.). In their place initials or a fictitious name shall appear.
(2) Any report, statement, photograph, court document, complaint or any other public record which states the name, address and identity of a victim shall be confidential and unavailable to the public.
(3) The information described in this subsection shall remain confidential and unavailable to the public unless the victim consents to the disclosure or if the court, after a hearing, determines that good cause exists for the disclosure. The hearing shall be held after notice has been made to the victim and to the defendant and the defendant's counsel.
(4) Nothing contained herein shall prohibit the court from imposing further restrictions with regard to the disclosure of the name, address, and identity of the victim when it deems it necessary to prevent trauma or stigma to the victim.
g. In accordance with R.5:3-2 of the Rules Governing the Courts of the State of New Jersey, the court may, on its own or a party's motion, direct that any proceeding or portion of a proceeding involving a victim sixteen years of age or younger be conducted in camera.
h. A plaintiff who prevails in a civil action pursuant to this act shall be awarded damages in the amount of $10,000, plus reasonable attorney's fees, or actual damages, whichever is greater. Actual damages shall consist of compensatory and punitive damages and costs of suit, including reasonable attorney's fees. Compensatory damages may include, but are not limited to, damages for pain and suffering, medical expenses, emotional trauma, diminished childhood, diminished enjoyment of life, costs of counseling, and lost wages.
(cf: P.L.2004, c.130, s.10)
3. Section 1 of P.L. 1986, c.116 (C.18A:6-7.1) is amended to read as follows:
1. A facility, center, school, or school system under the supervision of the Department of Education and board of education which cares for, or is involved in the education of children under the age of 18 shall not employ for pay or contract for the paid services of any teaching staff member or substitute teacher, teacher aide, child study team member, school physician, school nurse, custodian, school maintenance worker, cafeteria worker, school law enforcement officer, school secretary or clerical worker or any other person serving in a position which involves regular contact with pupils unless the employer has first determined consistent with the requirements and standards of this act, that no criminal history record information exists on file in the Federal Bureau of Investigation, Identification Division, or the State Bureau of Identification which would disqualify that individual from being employed or utilized in such capacity or position. The employer shall also require that a criminal history record background check on each such individual be conducted every three years during the course of the individual's employment.
An individual employed by a board of education or a school bus contractor holding a contract with a board of education, in the capacity of a school bus driver, shall be required to meet the criminal history record requirements pursuant to section 6 of P.L.1989, c.104 (C.18A:39-19.1) and to undergo a criminal history record background check every three years during the course of the individual's employment.
A facility, center, school, or school system under the supervision of the Department of Education and board of education which cares for, or is involved in the education of children under the age of 18 [may] shall require criminal history record checks for individuals who, on an unpaid voluntary basis, provide services that involve regular contact with pupils and shall require that a criminal history record background check on each such individual be conducted every three years during the course of the individual's period of volunteer service. [In the case of school districts involved in a sending-receiving relationship, the decision to require criminal history record checks for volunteers shall be made jointly by the boards of education of the sending and receiving districts.]
An individual, except as provided in subsection g. of this section, shall be permanently disqualified from employment or service under this act if the individual's criminal history record check reveals a record of conviction for any crime of the first or second degree; or
a. An offense as set forth in chapter 14 of Title 2C of the New Jersey Statutes, or as set forth in N.J.S.2C:24-4 and 2C:24-7, or as set forth in R.S.9:6-1 et seq., or as set forth in N.J.S.2C:29-2; or
b. An offense involving the manufacture, transportation, sale, possession, distribution or habitual use of a "controlled dangerous substance" as defined in the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al. or "drug paraphernalia" as defined pursuant to N.J.S.2C:36-1 et seq.; or
c. (1) A crime involving the use of force or the threat of force to or upon a person or property including, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder; or
(2) A crime as set forth in chapter 39 of Title 2C of the New Jersey Statutes, a third degree crime as set forth in chapter 20 of Title 2C of the New Jersey Statutes, or a crime as listed below:
Recklessly endangering another person N.J.S.2C:12-2
Terroristic threats N.J.S.2C:12-3
Criminal restraint N.J.S.2C:13-2
Luring, enticing child into motor vehicle, structure or isolated area P.L.1993, c.291 (C.2C:13-6)
Causing or risking widespread injury or damage
N.J.S.2C:17-2 Criminal mischief N.J.S.2C:17-3
Burglary N.J.S.2C:18-2
Usury N.J.S.2C:21-19
Threats and other improper influence N.J.S.2C:27-3
Perjury and false swearing N.J.S.2C:28-3
Resisting arrest N.J.S.2C:29-2
Escape N.J.S.2C:29-5
Bias intimidation N.J.S.2C:16-1;
or
(3) Any crime of the fourth degree involving a victim who is a minor; or
(4) Conspiracy to commit or an attempt to commit any of the crimes described in this act.
d. For the purposes of this section, a conviction exists if the individual has at any time been convicted under the laws of this State or under any similar statutes of the United States or any other state for a substantially equivalent crime or other offense.
e. Notwithstanding the provisions of this section, an individual shall not be disqualified from employment or service under this act on the basis of any conviction disclosed by a criminal record check performed pursuant to this act without an opportunity to challenge the accuracy of the disqualifying criminal history record.
f. When charges are pending for a crime or any other offense enumerated in this section, the employing board of education shall be notified that the candidate shall not be eligible for employment until the commissioner has made a determination regarding qualification or disqualification upon adjudication of the pending charges.
g. This section shall first apply to criminal history record checks conducted on or after the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.); except that in the case of an individual employed by a board of education or a contracted service provider who is required to undergo a check upon employment with another board of education or contracted service provider, the individual shall be disqualified only for the following offenses:
(1) any offense enumerated in this section prior to the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.); and
(2) any offense enumerated in this section which had not been enumerated in this section prior to the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.), if the person was convicted of that offense on or after the effective date of that act.
(cf: P.L.2011, c.72, s.9)
4. (New section) The failure of any facility, center, school, or school system under the supervision of the Department of Education and board of education to conduct a criminal history record background check in accordance with section 1 of P.L. 1986, c.116 (C.18A:6-7.1) shall create a rebuttable presumption of negligence if such failure is shown to be a proximate cause of the sexual abuse of a child. Proximate cause shall be deemed to be present if the failure to conduct the criminal history background check allowed a person access to the child and that access resulted in the sexual abuse.
5. Section 1 of P.L.1989, c.229 (C.18A:6-4.13) is amended to read as follows:
1. a. [Any] A nonpublic school [may] shall require all final candidates for employment or service under contract with the school as a teacher, substitute teacher, teacher aide, a school physician, school nurse, custodian, maintenance worker, bus driver, security guard, secretary or clerical worker or for any other position which involves regular contact with pupils, to demonstrate that no criminal history record information exists on file in the Federal Bureau of Investigation, Identification Division, or the State Bureau of Identification which would disqualify that individual from employment in the public schools of this State pursuant to the provisions of P.L.1986, c.116 (C.18A:6-7.1 et seq.). Application of this requirement by a nonpublic school shall be consistent and nondiscriminatory among candidates. A nonpublic school shall also require that a criminal history record background check on each such individual be conducted every three years during the course of the individual's employment.
As used in this act, "nonpublic school" means an elementary or secondary school within the State, other than a public school, offering education in grades K-12 or any combination thereof, wherein a child may legally fulfill compulsory school attendance requirements.
(cf: P.L.1998, c.31, s.1)
6. (New section) The failure of any nonpublic school to conduct a criminal history record background check in accordance with section 1 of P.L.1989, c.229 (C.18A:6-4.13) shall create a rebuttable presumption of negligence if such failure is shown to be a proximate cause of the sexual abuse of a child. Proximate cause shall be deemed to be present if the failure to conduct the criminal history background check allowed a person access to the child and that access resulted in the sexual abuse.
7. Section 2 of P.L.1999, c.432 (C.15A:3A-2) is amended to read as follows:
2. a. (1) A nonprofit youth serving organization [may] shall request, through the department, that the State Bureau of Identification in the Division of State Police conduct a criminal history record background check on each prospective and current employee or volunteer of the organization.
(2) In addition to the provisions of paragraph (1) of this subsection, a nonprofit youth serving organization shall require that a criminal history record background check be conducted on each individual who is a current employee or volunteer of the organization every three years during the course of the individual's employment or period of volunteer service.
b. For the purpose of conducting the criminal history record background check, the division shall examine its own files and arrange for a similar examination by federal authorities. The division shall inform the department whether the person's criminal history record background check reveals a conviction of a disqualifying crime or offense as specified in section 3 of this act.
c. The division shall conduct a criminal history record background check only upon receipt of the written consent to the check of the prospective or current employee or volunteer.
d. The organization or the prospective or current employee or volunteer shall bear the costs associated with conducting criminal history background checks. Notwithstanding any law or regulation to the contrary, the department shall not charge a fee for a criminal history record background check that exceeds the actual cost of conducting that check, as determined by the Attorney General. The Attorney General shall annually certify to the State Treasurer the cost per criminal history background check in the immediately preceding year.
(cf: P.L.1999, c.432, s.2)
8. (New section) The failure of any nonprofit youth serving organization, as defined in section 1 of P.L.1999, c.432 (C.15A:3A-1), to conduct a criminal history record background check in accordance with section 2 of P.L.1999, c.432 (C.15A:3A-2) shall create a rebuttable presumption of negligence if such failure is shown to be a proximate cause of the sexual abuse of a child. Proximate cause shall be deemed to be present if the failure to conduct the criminal history background check allowed a person access to the child and that access resulted in the sexual abuse.
9. (New section) a. A school district shall provide the following training to full-time and part-time staff and volunteers who have significant contact with students:
(1) Instruction on how to be aware of indications that a child may have been sexually abused; and
(2) Instruction on the appropriate procedures for reporting the sexual abuse of a child, as required by section 3 of P.L.1971, c.437 (C.9:6-8.10) or by any other applicable law, rule, or regulation.
b. The failure of any school district to act in accordance with this section shall create a rebuttable presumption of negligence if the failure to implement such training is shown to be a proximate cause of the sexual abuse of a child. Proximate cause shall be deemed to be present if the failure to act in accordance with this section is shown to be a contributing factor to the commencement or continuation of the sexual abuse.
10. (New section) a. A nonpublic school shall provide the following training to full-time and part-time staff and volunteers who have significant contact with students:
(1) Instruction on how to be aware of indications that a child may have been sexually abused; and
(2) Instruction on the appropriate procedures for reporting the sexual abuse of a child, as required by section 3 of P.L.1971, c.437 (C.9:6-8.10) or by any other applicable law, rule, or regulation.
b. The failure of any nonpublic school to act in accordance with this section shall create a rebuttable presumption of negligence if the failure to implement such training is shown to be a proximate cause of the sexual abuse of a child. Proximate cause shall be deemed to be present if the failure to act in accordance with this section is shown to be a contributing factor to the commencement or continuation of the sexual abuse.
11. (New section) a. A youth serving organization, as defined in section 1 of P.L.1999, c.432 (C.15A:3A-1) shall provide the following training to full-time and part-time staff and volunteers who have significant contact with persons under the age of 18:
(1) Instruction on how to be aware of indications that a person under the age of 18 may have been sexually abused; and
(2) Instruction on the appropriate procedures for reporting the sexual abuse of a child, as required by section 3 of P.L.1971, c.437 (C.9:6-8.10) or by any other applicable law, rule, or regulation.
b. The failure of any youth serving organization to act in accordance with this section shall create a rebuttable presumption of negligence if the failure to implement such training is shown to be a proximate cause of the sexual abuse of a child. Proximate cause shall be deemed to be present if the failure to act in accordance with this section is shown to be a contributing factor to the commencement or continuation of the sexual abuse.
12. (New section) a. Sections 1 and 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), shall apply to any action filed on or after the effective date and to matters filed with a court that have not yet been dismissed with prejudice or finally adjudicated as of the effective date.
b. Section 1 and 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall also revive any action pursuant to section 1 of P.L.1992, c.109 (C.2A:61B-1) against an actor that was previously dismissed on grounds that the applicable statute of limitations had expired but shall not revive any action previously dismissed on any other grounds or revive any action that has been finally adjudicated.
13. This act shall take effect immediately.
STATEMENT
This bill, designated as the "Child Protection Act of 2012," would implement several provisions to address the issue of child sexual abuse.
Statute of limitations for civil actions; persons potentially liable
Section 2 of the bill provides that a civil action pursuant to N.J.S.A.2A:61B-1 against a person who commits child sexual abuse may be brought at any time. This section of the bill also lengthens the statute of limitations for actions against persons who knowingly acquiesce in child sexual abuse and expands the categories of persons who are potentially liable in these actions.
N.J.S.A.2A:61B-1, generally referred to as the "Child Sexual Abuse Act," provides that a victim of child sexual abuse may bring a civil action against the person who committed the abuse, known as the "actor." In addition, the Child Sexual Abuse Act allows the victim to bring an action against a parent, resource family parent, guardian or other person "standing in loco parentis within the household" who knowingly permitted or acquiesced in the abuse. Such persons are often referred to as "passive abusers." Under current law, all actions under the Child Sexual Abuse Act must be brought within two years after reasonable discovery of the injury and its causal relationship to the act of sexual abuse.
The bill would eliminate the statute of limitations for a civil action against the actor, allowing such an action to be brought at any time. Under the bill, a civil action against a person who knowingly permitted or acquiesced in the sexual abuse must be brought within seven years after reasonable discovery of the injury and its causal relationship to the act of sexual abuse. The bill also expands the category of these passive abusers by eliminating the language "standing in loco parentis within the household." Thus, under the bill, any person who knowingly permitted or acquiesced in the abuse may be liable in a civil action.
Section 2 of the bill also makes minor language changes in N.J.S.A.2A:61B-1, replacing several uses of the term "adult" with the term "actor," in order to maintain internal consistency.
Section 1 of the bill amends N.J.S.A.2A:14-2, which sets out the general provisions for statutes of limitation, to provide that an action for damages pursuant to the "Child Sexual Abuse Act" shall be commenced in accordance with the provisions of that act.
The bill, as set out in section 12, would apply to any action under N.J.S.A.2A:61B-1 filed on or after the effective date and to matters filed with a court that have not yet been dismissed with prejudice or finally adjudicated as of the effective date. The bill would also revive any action under N.J.S.A.2A:61B-1 against an actor that was previously dismissed on grounds that the applicable statute of limitations had expired but would not revive any action previously dismissed on any other grounds or revive any action that has been finally adjudicated.
Background checks for persons who work with children
Currently, N.J.S.A.18A:6-7.1 requires criminal background checks for all candidates for employment with a public school whose positions would put them in regular contact with children. Background checks also may be conducted for public school volunteers. Section 3 of the bill would require public schools to conduct criminal background checks of these employees and volunteers every three years during the course of their employment.
Under N.J.S.A.18A:6-4.13, nonpublic schools may require criminal background checks for candidates for such employment. Pursuant to section 5 of the bill, these background checks would be mandatory and would also be required to be conducted every three years during the course of employment.
Currently, N.J.S.A.15A:3A-2 provides that a nonprofit youth serving organization may require a background check for each prospective and current employee and volunteer. Section 7 of the bill makes these background checks mandatory and also requires that they be conducted every three years during the course of the employees' and volunteers' service.
Background checks and presumption of negligence
Sections 4, 6, and 8 of the bill provide that if the public or nonpublic school or youth serving organization fails to comply with the requirement for background checks, that failure would create a rebuttable presumption of negligence if the failure is shown to be a proximate cause of the sexual abuse of a child. Proximate cause would be deemed to be present if the failure to comply with the background check requirement allowed a person access to the child and that access resulted in the sexual abuse.
Training programs and presumption of negligence
Sections 9, 10, and 11 of the bill require training programs for employees and volunteers of public and nonpublic schools and youth serving organizations. The program would provide instruction on how to be aware of indications that a child may have been sexually abused and instruction on the appropriate procedures for reporting the sexual abuse of a child, as required by N.J.S.A.9:6-8.10 or by any other applicable law, rule, or regulation.
Under these sections of the bill, the failure of any public or nonpublic school or youth serving organization to implement the training programs would create a rebuttable presumption of negligence if the failure is shown to be a proximate cause of the sexual abuse of a child. Proximate cause would be deemed to be present if the failure to implement the training program is shown to be a contributing factor to the commencement or continuation of the sexual abuse.
