ASSEMBLY, No. 1232

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblyman AZZOLINA and Assemblywoman J. SMITH

An Act concerning civil actions for sexual abuse and amending P.L.1992, c.109.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. 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) (a) "Sexual abuse of a minor" means an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult. A parent, foster parent, guardian or other person standing in loco parentis within the household 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, foster 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 so as to undermine the person's ability to protect the child.

    (b) "Sexual abuse of an adult" means any nonconsensual sexual contact or sexual penetration between the victim and a person over the age of 18 years.

    (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.

    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, conducted in the presence of the jury. At the plenary hearing the court shall hear all credible evidence and the Rules of Evidence shall not apply, except for Rule 4 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.1992,c.109,s.1)

    2. This act shall take effect immediately.

STATEMENT

    Increasingly, victims of sexual assault who know their attackers are filing civil suits against their alleged attackers and seeking tort damages. This increase is due in part to the growing tendency of sexual assault victims to react with anger rather than shame. It is also due to their increasing frustration with the criminal system's response or lack of response to their violation. Some adults who were victims of child sexual assault are also filing suit against their abusers, sometimes after years of psychological turmoil resulting from the sexual assault or repression of the events.

    The option of pursuing a civil suit has several advantages. First, victims of intentional torts sue for monetary damages . Second, a victim is in control when pursuing a civil suit. She decides if a case will go to trial, when the case will be settled, and for how much. Third, the victim can count on established rules of evidence. Lastly, a verdict in favor of the plaintiff may be easier to obtain in a civil suit because the standard of proof in civil courts is lower than for criminal cases. In a criminal action the prosecution is required to prove beyond a reasonable doubt that the defendant assaulted the complainant, whereas in civil cases the plaintiff need only prove her case by a preponderence of the evidence.

    N.J.S.A.2A:61B-1 establishes a statutory civil action for sexual abuse. Under this statute, a civil action for sexual abuse accrues at the time of "reasonable discovery" of the injury and its causal relationship to the act of sexual abuse. In addition, a court can find that the statute of limitations was suspended because of the plaintiffs mental state, duress by the defendant, or other equitable grounds.

    "Sexual abuse" is currently defined as an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult. This bill would permit adult victims of sexual abuse to bring a civil action as well. Under the bill, "sexual abuse of an adult" means any nonconsensual sexual contact or sexual penetration between the victim and a person over the age of 18 years.

    In "Legislative Responses to Violence Against Women in New Jersey," a report of the Commission on Sex Discrimination in the Statutes, the Commission noted that many of the same factors found persuasive as to children of sexual abuse apply to adults who are victimized. The report declared, "[T]he trauma of the attack, coercion not to file by the assailant, fear of the reaction of society and the legal system, repression of details or event the entire event, and misunderstanding of the nature of the event may all contribute to a victim's inability to report or sue within two years."

Permits civil actions for sexual abuse by adult victims.