New York Child Victims Act - NY Bill S2440

Provides that the statute of limitations for criminal prosecution of a sexual offense committed against a child shall not begin to run until the child turns 23 years of age; provides that a civil action for conduct constituting a sexual offense against a child, shall be brought before the child turns 55 years of age; revives previously barred actions related to sexual abuse of children; grants civil trial preference to such actions;  eliminates the notice of claim requirements for such actions when the action is brought against a municipality, the state or a school district; requires judicial training relating to child abuse and the establishment of rules relating to civil actions brought for sexual offenses committed against children.

BILL NUMBER: S2440
SPONSOR: HOYLMAN

An act to amend the criminal procedure law, in relation to the statute of limitations in criminal prosecution of a sexual offense committed against a child; to amend the civil practice law and rules, in relation to the statute of limitations for civil actions related to a sexual offense committed against a child, reviving such actions otherwise barred by the existing statute of limitations and granting trial preference to such actions; to amend the general municipal law, in relation to providing that the notice of claim provisions shall not apply to such actions; to amend the court of claims act, in relation to providing that the notice of intention to file provisions shall not apply to such actions; to amend the education law, in relation to providing that the notice of claim provisions shall not apply to such actions; and to amend the judiciary law, in relation to judicial training relating to sexual abuse of minors and rules reviving civil actions relating to sexual offenses committed against children

SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Amends prospectively the statute of limitations in criminal actions alleging a sexual offense against a child under the age of 18. Currently, certain specified class A and class B felony sexual offenses have no statute of limitations, and for other felony sexual offenses, a five year statute of limitations starts to run when the victim turns 18. For misdemeanors, current law contains a two year statute of limitations, which also starts to run at age 18. This section applies to all sexual offenses against children which have a statute of limitations and increases the start of the statute running by five years to the victim's 23rd birthday.

Section 2. Amends prospectively the statute of limitations in civil actions alleging conduct which would constitute a sexual offense against a child under the age of 18. Under current law, the statute of limitations typically begins to run when the victim turns 18, and the statute of limitations ranges from one year to five years depending on the type of claim being brought. This section, as amended, now permits all civil claims or causes of action brought for physical, psychological or other injury or condition suffered as a result of conduct which would constitute a sexual offense against a child against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of that conduct up until the victim reaches 55 years of age. This section explicitly applies notwithstanding any other section of law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to bringing a civil action against a public institution.

Section 3. Allows for time-barred actions in which such conduct is alleged to be revived, and not be barred by any statute of limitation or notice of claim requirement otherwise existing in law. Such revival can only take place within a one year window which commences six months from the effective date of the act. This section explicitly applies notwithstanding any other section of law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to bringing a civil action against a public institution. This section also makes clear that any revived civil actions brought during the one year window that were previously dismissed due to being time-barred or for failure to file a notice of claim or a notice of intention to file a claim shall not be dismissed on those grounds

Section 4. Establishes a special trial preference for cases which have been revived pursuant to this act.

Sections 5, 6, 7, and 8. Remove notice of claim requirements in actions alleging damages resulting from the commission of certain sexual offenses against governmental entities, thus putting governmental and non-governmental defendants on an equal footing for any civil actions brought after the effective date of this act, including during the one year revival window. Current law, which requires that a notice of claim must first be served prior to commencing such actions, would not apply to these types of actions.

Section 9. Requires the Office of Court Administration to provide training for judges concerning crimes involving the sexual abuse of minors.

Section 10. Requires the Chief Administrator of the courts to promulgate rules concerning the timely adjudication of claims revived pursuant to Section 3.

 
JUSTIFICATION:

New York is one of the worst states in the nation for survivors of child sexual abuse. New York currently requires most survivors to file civil actions or criminal charges against their abusers by the age of 23 at most, long before most survivors report or come to terms with their abuse, which has been estimated to be as high as 52 years old on average. Because of these restrictive statutes of limitations, thousands of survivors are unable to sue or press charges against their abusers, who remain hidden from law enforcement and pose a persistent threat to public safety.

This legislation would open the doors of justice to the thousands of survivors of child sexual abuse in New York State by prospectively extending the statute of limitations to age 28 for charging felony sexual offenses, age 25 for charging misdemeanor sexual offenses, and age 55 for bringing civil actions for physical, psychological or other injury suffered as a result of child sexual abuse against any party whose
intentional or negligent acts or omissions are alleged to have resulted in the abuse.

This legislation would also establish a one-year window in which adult survivors of child sexual abuse would be permitted to file civil actions, even if the statute of limitations had already expired or, in the case of civil actions against public institutions, a notice of claim requirement had gone unmet.

Passage of the Child Victims Act will finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties.

 
PRIOR LEGISLATIVE HISTORY:

  • S.6575 of 2017-2018 (Hoylman): Died in Codes
  • A.5885-A of 2017-2018 (Rosenthal): Passed Assembly
  • S.63-A of 2015-2016 (Hoylman): Died in Codes (Similar Legislation)
  • A.2872-A of 2015-2016 (Markey): Died in Codes (Similar Legislation)
  • S.6367 of 2014 (Hoylman): Died in Codes (Similar Legislation)
  • A.1771-A of 2013-2014 (Markey): Died in Codes (Similar Legislation)
  • A.10814-B of 2012 (Markey): Died in Codes (Similar Legislation)

 
FISCAL IMPACT:

To be determined.

EFFECTIVE DATE:

This act shall take effect immediately; except that section nine of this act shall take effect six months after this act shall have become a law; provided, however, that training for cases brought pursuant to section 214-g of the civil practice law and rules, as added by section three of this act, shall commence three months after this act shall have become a law; and section ten of this act shall take effect three months after this act shall have become a law.

S T A T E   O F   N E W   Y O R K

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S. 2440   A. 2683

2019-2020 Regular Sessions

S E N A T E - A S S E M B L Y

January 24, 2019
___________

IN  SENATE  --  Introduced  by  Sens. HOYLMAN, STEWART-COUSINS, ADDABBO,   BAILEY, BENJAMIN, BIAGGI, BRESLIN, BROOKS, CARLUCCI, COMRIE, GAUGHRAN, GIANARIS, GOUNARDES, HARCKHAM, JACKSON,  KAMINSKY,  KAPLAN,  KAVANAGH, KENNEDY,  KRUEGER,  LIU,  MARTINEZ,  MAY,  MAYER, METZGER, MONTGOMERY, MYRIE, PARKER, RAMOS, RIVERA,  SALAZAR,  SANDERS,  SAVINO,  SEPULVEDA, SERRANO,  SKOUFIS, STAVISKY, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary

IN ASSEMBLY -- Introduced by M. of A. L. ROSENTHAL,  DINOWITZ,  HEASTIE, PEOPLES-STOKES,  ENGLEBRIGHT,  GUNTHER, OTIS, JAFFEE, STIRPE, SIMOTAS, GALEF,  MOSLEY,  LIFTON,  BARRETT,  PAULIN,  ARROYO,  WALKER,  WEPRIN, BICHOTTE,  SIMON, BLAKE, CAHILL, SEAWRIGHT, BARRON, BUCHWALD, BRONSON, HEVESI, HYNDMAN, ORTIZ, NOLAN, JONES, CARROLL,  RIVERA,  GLICK,  NIOU, DE LA ROSA,  PRETLOW,  GOTTFRIED,  D'URSO,  VANEL, TITUS, JEAN-PIERRE, FERNANDEZ,  BENEDETTO,  CRUZ,  EPSTEIN,  FRONTUS,  GRIFFIN,  JACOBSON, QUART,  REYES,  RICHARDSON,  ROMEO, RYAN, SAYEGH, BURKE, STECK -- read once and referred to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to  the  statute of  limitations  in criminal prosecution of a sexual offense committed against a child; to  amend  the  civil  practice  law  and  rules,  in relation  to the statute of limitations for civil actions related to a sexual offense committed against a child, reviving such actions otherwise barred by the existing statute of limitations and granting  trial preference  to  such  actions;  to amend the general municipal law, in relation to providing that the notice of claim  provisions  shall not apply  to  such actions; to amend the court of claims act, in relation to providing that the notice of intention to file provisions shall not apply to such actions; to amend the  education  law,  in  relation  to providing  that the notice of claim provisions shall not apply to such actions; and to amend the  judiciary  law,  in  relation  to  judicial training  relating  to sexual abuse of minors and rules reviving civil actions relating to sexual offenses committed against children

EXPLANATION--Matter in ITALICS is new; matter in brackets [ ] is old law to be omitted.

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEMBLY, 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 performance as defined in section 263.05 of the penal law, the period of  limitation  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.

  § 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 ANY PROVISION OF LAW WHICH  IMPOSES  A  PERIOD  OF LIMITATION  TO THE CONTRARY AND THE PROVISIONS OF ANY OTHER LAW PERTAINING TO THE FILING OF A NOTICE OF CLAIM OR A NOTICE OF INTENTION TO  FILE A CLAIM AS A CONDITION PRECEDENT TO COMMENCEMENT OF AN ACTION OR SPECIAL PROCEEDING, WITH RESPECT TO ALL CIVIL CLAIMS OR CAUSES OF ACTION BROUGHT BY  ANY  PERSON FOR PHYSICAL, PSYCHOLOGICAL OR OTHER INJURY OR CONDITION SUFFERED BY SUCH PERSON AS A RESULT OF CONDUCT WHICH WOULD CONSTITUTE  A SEXUAL OFFENSE AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW COMMITTED  AGAINST  SUCH PERSON WHO WAS LESS THAN EIGHTEEN YEARS OF AGE, INCEST AS DEFINED IN SECTION 255.27, 255.26 OR 255.25 OF THE  PENAL  LAW COMMITTED  AGAINST  SUCH PERSON WHO WAS LESS THAN EIGHTEEN YEARS OF AGE, OR THE USE OF SUCH PERSON IN A SEXUAL PERFORMANCE 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 SUCH PERSON WHO WAS LESS THAN EIGHTEEN YEARS  OF  AGE,  SUCH  ACTION  MAY  BE COMMENCED,  AGAINST  ANY  PARTY  WHOSE  INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS ARE ALLEGED  TO  HAVE  RESULTED  IN  THE  COMMISSION  OF  SAID
CONDUCT,  ON OR BEFORE THE PLAINTIFF OR INFANT PLAINTIFF REACHES THE AGE OF FIFTY-FIVE YEARS. IN ANY SUCH CLAIM OR ACTION,  IN  ADDITION  TO  ANY OTHER  DEFENSE  AND AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE IN ACCORDANCE WITH LAW, RULE OR THE COMMON LAW,  TO  THE  EXTENT  THAT  THE  ACTS ALLEGED  IN  SUCH ACTION ARE OF THE TYPE DESCRIBED IN SUBDIVISION ONE OF SECTION 130.30 OF THE PENAL LAW OR SUBDIVISION ONE OF SECTION 130.45  OF THE  PENAL LAW, THE AFFIRMATIVE DEFENSES SET FORTH, RESPECTIVELY, IN THE CLOSING PARAGRAPH OF SUCH SECTIONS OF THE PENAL LAW SHALL APPLY.

  § 3. The civil practice law and rules  is  amended  by  adding  a  new section 214-g to read as follows:

  §  214-G.  CERTAIN  CHILD  SEXUAL  ABUSE  CASES.  NOTWITHSTANDING  ANY PROVISION OF LAW WHICH IMPOSES A PERIOD OF LIMITATION  TO  THE  CONTRARY AND THE PROVISIONS OF ANY OTHER LAW PERTAINING TO THE FILING OF A NOTICE OF  CLAIM OR A NOTICE OF INTENTION TO FILE A CLAIM AS A CONDITION PRECEDENT TO COMMENCEMENT OF AN ACTION OR  SPECIAL  PROCEEDING,  EVERY  CIVIL CLAIM  OR CAUSE OF ACTION BROUGHT AGAINST ANY PARTY ALLEGING INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS 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 255.27, 255.26 OR 255.25 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 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, WHICH IS BARRED AS OF THE EFFECTIVE DATE OF  THIS SECTION  BECAUSE THE APPLICABLE PERIOD OF LIMITATION HAS EXPIRED, AND/OR THE PLAINTIFF PREVIOUSLY FAILED TO FILE A NOTICE OF CLAIM OR A NOTICE OF INTENTION TO FILE A CLAIM, IS HEREBY REVIVED, AND ACTION THEREON MAY  BE COMMENCED NOT EARLIER THAN SIX MONTHS AFTER, AND NOT LATER THAN ONE YEAR AND  SIX  MONTHS  AFTER THE EFFECTIVE DATE OF THIS SECTION.  IN ANY SUCH CLAIM OR ACTION: (A) IN ADDITION TO ANY OTHER  DEFENSE  AND  AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE IN ACCORDANCE WITH LAW, RULE OR THE COMMON LAW,  TO THE EXTENT THAT THE ACTS ALLEGED IN SUCH ACTION ARE OF THE TYPE DESCRIBED IN SUBDIVISION ONE OF SECTION  130.30  OF  THE  PENAL  LAW  OR SUBDIVISION  ONE  OF  SECTION  130.45  OF THE PENAL LAW, THE AFFIRMATIVE DEFENSES SET FORTH, RESPECTIVELY,  IN  THE  CLOSING  PARAGRAPH  OF  SUCH SECTIONS  OF  THE PENAL LAW SHALL APPLY; AND (B) DISMISSAL OF A PREVIOUS ACTION, ORDERED BEFORE THE EFFECTIVE DATE OF THIS  SECTION,  ON  GROUNDS THAT SUCH PREVIOUS ACTION WAS TIME BARRED, AND/OR FOR FAILURE OF A PARTY TO  FILE  A  NOTICE  OF  CLAIM OR A NOTICE OF INTENTION TO FILE A CLAIM, SHALL NOT BE GROUNDS FOR DISMISSAL OF A REVIVAL ACTION PURSUANT TO  THIS SECTION.

  §  4. Subdivision (a) of rule 3403 of the civil practice law and rules is amended by adding a new paragraph 7 to read as follows:

  7. ANY ACTION WHICH HAS BEEN REVIVED PURSUANT TO SECTION  TWO  HUNDRED FOURTEEN-G OF THIS CHAPTER.

  §  5.  Subdivision  8 of section 50-e of the general municipal law, as amended by chapter 24 of the  laws  of  1988,  is  amended  to  read  as follows:

  8.  Inapplicability  of  section.  (A) This section shall not apply to claims arising under the provisions of the  workers'  compensation  law, the  volunteer  firefighters'  benefit  law,  or the volunteer ambulance workers' benefit law or to claims against public corporations  by  their own infant wards.

  (B)  THIS  SECTION  SHALL  NOT  APPLY  TO ANY CLAIM MADE 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 255.27, 255.26 OR 255.25 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.

  §  6. Section 50-i of the general municipal law is amended by adding a new subdivision 5 to read as follows:

  5. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, THIS  SECTION SHALL NOT APPLY TO ANY CLAIM MADE AGAINST A CITY, COUNTY, TOWN, VILLAGE, FIRE  DISTRICT  OR SCHOOL DISTRICT 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 255.27, 255.26 OR 255.25 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.

  §  7. Section 10 of the court of claims act is amended by adding a new subdivision 10 to read as follows:

  10. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, THIS SECTION SHALL NOT APPLY TO ANY CLAIM TO RECOVER DAMAGES 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 255.27, 255.26 OR  255.25  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.

  § 8. Subdivision 2 of section 3813 of the education law, as amended by chapter 346 of the laws of 1978, is amended to read as follows:

  2.  Notwithstanding anything to the contrary hereinbefore contained in this section, no action or special proceeding founded upon tort shall be prosecuted or maintained against  any  of  the  parties  named  in  this section  or against any teacher or member of the supervisory or administrative staff or employee where the alleged tort was committed  by  such teacher  or  member  or  employee  acting in the discharge of his duties within the scope of his employment and/or under  the  direction  of  the board of education, trustee or trustees, or governing body of the school unless  a  notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law.   Every  such  action shall  be commenced pursuant to the provisions of section fifty-i of the general municipal law; PROVIDED, HOWEVER, THAT THIS  SECTION  SHALL  NOT APPLY  TO  ANY  CLAIM TO RECOVER DAMAGES 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 255.27, 255.26 OR 255.25 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.

  § 9. Section 219-c of the judiciary law, as added by  chapter  506  of the laws of 2011, is amended to read as follows:

  §  219-c.  Crimes  involving  sexual  assault  AND THE SEXUAL ABUSE OF MINORS; judicial training. The  office  of  court  administration  shall provide  training for judges and justices with respect to crimes involving sexual assault, AND THE SEXUAL ABUSE OF MINORS.

  § 10. The judiciary law is amended by adding a new  section  219-d  to read as follows:

  § 219-D. RULES REVIVING CERTAIN ACTIONS; SEXUAL OFFENSES AGAINST CHILDREN.   THE CHIEF ADMINISTRATOR OF THE COURTS SHALL PROMULGATE RULES FOR THE TIMELY ADJUDICATION OF REVIVED ACTIONS BROUGHT PURSUANT  TO  SECTION TWO HUNDRED FOURTEEN-G OF THE CIVIL PRACTICE LAW AND RULES.

  §  11.  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, subdivision or part thereof directly involved in the  controversy in which such judgment shall have been rendered.

  § 12. This act shall take effect immediately; except that section nine of  this  act  shall  take  effect  six months after this act shall have become a law; provided, however, that training for cases brought  pursuant  to  section  214-g of the civil practice law and rules, as added by section  three  of  this act, shall commence three months after this act shall have become a law; and section ten of this act shall  take  effect three months after this act shall have become a law.