SENATE, No. 2405

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED NOVEMBER 15, 2010

 


 

Sponsored by:

Senator  JOSEPH F. VITALE

District 19 (Middlesex)

Senator  NICHOLAS P. SCUTARI

District 22 (Middlesex, Somerset and Union)

 

 

 

 

SYNOPSIS

     Removes statute of limitations in civil actions for sexual abuse; expands the categories of persons who are potentially liable in such actions.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning civil actions alleging sexual abuse, amending N.J.S.2A:14-2 and P.L.1992, c.109 and supplementing Title 2A of the New Jersey Statutes.

 

     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 brought pursuant to section 1 of P.L.1992, c.109 (C.2A:61B-1), paragraph (1) of subsection c. of section 1 of P.L.1959, c.90 (C.2A:53A-7) or section 1 of P.L.2005, c.264 (C.2A:53A-7.4) may be commenced at any time.

(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 or a person with supervisory or disciplinary power of any nature or in any capacity over the victim who knowingly permits or acquiesces in sexual abuse by any other person 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 or person with supervisory or disciplinary power of any nature or in any capacity over the victim was subjected to, or placed in, reasonable fear of physical or sexual abuse by the other person so as to undermine the person's ability 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 with himself must be in view of the victim whom the adult 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 or upon the adult'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 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. Any such action shall be brought within two years after reasonable discovery] 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.] Deleted by amendment, P.L.    , c.    (C.        ) (pending before the Legislature as this bill).

     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.  (New section) Notwithstanding any other provision of law to the contrary, including but not limited to the “New Jersey Tort Claims Act," N.J.S.59:1-1 et seq., a public entity is liable in an action for damages brought under the provisions of section 1 of P.L.1992, c.109 (C.2A:61B-1), paragraph (1) of subsection c. of section 1 of P.L.1959, c.90 (C.2A:53A-7) or section 1 of P.L.2005, c.264 (C.2A:53A-7.4).        

 

     4. (New section) The provisions of this amendatory and supplementary act, P.L.    , c.    (C.    ) (pending before the Legislature as this bill) shall be inapplicable to any civil action governed by the statute of limitations of another jurisdiction.

 

     5. (New section) The provisions of this amendatory and supplementary act, P.L.    , c.    (C.    ) (pending before the Legislature as this bill), shall apply to any action filed on or after the effective date, including but not limited to matters where the statute of limitations has expired and matters filed with a court that have not yet been dismissed with prejudice or finally adjudicated as of the effective date.  The provisions of this act shall also revive any action 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.

 

     6.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would remove the statute of limitations in civil actions for sexual abuse, expand the category of persons who are potentially liable in these actions, and provide that public entities would be liable in these actions. 

     Currently, N.J.S.A.2A:14-2 provides that personal injury suits must be commenced within two years of accrual of the cause of action, except for certain medical malpractice actions on behalf of minors.  Under the bill, this two-year statute of limitations would be removed for actions brought under N.J.S.A.2A:61B-1 (action alleging sexual abuse of a minor); N.J.S.A.2A:53A-7c.(1) (action alleging a willful, wanton or grossly negligent act of commission or omission, including sexual assault or other crime of a sexual nature, brought against a trustee, director, officer, employee, agent, servant or volunteer of a nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes); and N.J.S.A.2A:53A-7.4 (action alleging sexual offense committed against a minor due to the negligent hiring, supervision or retention of an employee, agent or servant of a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes).

     It is the view of the sponsor that eliminating the statute of limitations in sexual abuse cases would not only be in the interests of justice, by allowing victims full access to the courts, but would also clarify the courts’ complex decisions on statute of limitations matters. 

     For example, in R.L. v. Voytac, 199 N.J. 285 (2009), the New Jersey Supreme Court had to determine the application of the statute of limitations in a case where the 26-year-old plaintiff brought suit against his former stepfather for sexual abuse that the plaintiff had suffered from the ages of 10 through 12. The plaintiff alleged that he only discovered the injuries caused by the abuse when he was 24 years old and began therapy.

     Under N.J.S.A.2A:61B-1, a person must bring suit within two years of “the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse,” and the two-year time period may be “tolled” (paused) because of the “plaintiff's mental state, duress by the defendant, or any other equitable grounds.”

     The Appellate Division had held that under the statute a plaintiff “may have a conscious memory of the sexual abuse, but may not have ‘reasonably discovered’ that the serious psychological and mental illness injury from which [he] suffers is caused by that sexual abuse.”  R.L. v. Voytac, 402 N.J. Super. 392, 403 (App. Div. 2008), rev. by, remanded by R.L. v. Voytac, 199 N.J. 285 (2009).  The Supreme Court ruled that under the statute, the trial court must first determine when a “reasonable person subjected to childhood abuse” would discover that the defendant's conduct caused the person’s injury, and that this determination “is an objective test.”  The Supreme Court held that if the period is more than two years prior to the filing of the complaint, then the trial court must next determine whether the statute should be tolled.  This second determination “is a subjective test.”  The Supreme Court remanded the Voytac case for a hearing in the trial court to determine the accrual date. 

     This bill would eliminate the need for these intricate determinations in future cases by removing the statute of limitations.

     In addition, the bill makes public entities liable in actions for damages alleging sexual abuse brought pursuant to N.J.S.A.2A:61B-1, N.J.S.A.2A:53A-7c.(1), and N.J.S.A.2A:53A-7.4., notwithstanding the provisions of the “New Jersey Tort Claims Act,” N.J.S.A.59:1-1 et seq., or any other law.

     The bill also expands the category of persons who are potentially liable in a civil action alleging the sexual abuse of a minor pursuant to N.J.S.A.2A:61B-1.  In addition to the person who committed the sexual abuse, current law provides that a parent, resource family parent (i.e., foster parent), guardian or other person standing in loco parentis within the household who knowingly permitted or acquiesced in the sexual abuse is also civilly liable for the abuse.  It is currently an affirmative defense if that person was subjected to, or placed in, reasonable fear of physical or sexual abuse by the abuser so as to undermine the person's ability to protect the child.  The bill would provide that a person with supervisory or disciplinary power of any nature or in any capacity over the victim who knowingly permitted or acquiesced in the sexual abuse is civilly liable as well.  This person would also be entitled to the same affirmative defense.

     The bill would apply to any action filed on or after the effective date, including but not limited to matters where the statute of limitations has expired and matters filed with a court that have not yet been dismissed or finally adjudicated as of the effective date.  The bill would also revive any action that was previously dismissed on grounds that the applicable statute of limitations had expired but
could not revive any action previously dismissed on any other grounds or revive any action that has been finally adjudicated.