Bill Text: NJ S2338 | 2012-2013 | Regular Session | Introduced
Bill Title: Amends statute of limitations for civil actions for injury based on sexual abuse; increases liability of certain entities and individuals.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-11-19 - Introduced in the Senate, Referred to Senate Judiciary Committee [S2338 Detail]
Download: New_Jersey-2012-S2338-Introduced.html
Sponsored by:
Senator JEFF VAN DREW
District 1 (Atlantic, Cape May and Cumberland)
SYNOPSIS
Amends statute of limitations for civil actions for injury based on sexual abuse; increases liability of certain entities and individuals.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning child sexual abuse and 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 subsection b. of this section and section 1 of P.L.1992, c.109 (C.2A:61B-1). 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.
(cf: P.L.2004, c.17, s.3)
2. Section 1 of P.L.1959, c.90 (C.2A:53A-7) is amended to read as follows:
1. a. No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.
Nothing in this subsection shall be deemed to grant immunity to any health care provider, in the practice of his profession, who is a compensated employee, agent or servant of any nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes.
b. No nonprofit corporation, society or association organized exclusively for hospital purposes or its trustees, directors, officers or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association; but nothing herein contained shall be deemed to exempt the agent, employee or servant individually from their liability for any such negligence.
c. Nothing in this section shall be deemed to grant immunity to: (1) (a) any nonprofit corporation, society or association organized exclusively for religious, charitable, educational, or hospital purposes or its trustee, director, officer, employee, agent, servant or volunteer causing damage by a willful, wanton or grossly negligent act of commission or omission, including sexual assault [and] , any other [crimes] crime of a sexual nature or sexual abuse as defined in section 1 of P.L.1992, c.109 (C.2A:61B-1);
(b) any nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes causing damage by any negligent act resulting in the commission of sexual assault, any other crime of a sexual nature or sexual abuse as defined in section 1 of P.L.1992, c.109 (C.2A:61B-1); or
(c) any trustee, director, officer, employee, agent, servant or volunteer of a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes causing damage by any negligent act resulting in the commission of sexual assault, any other crime of a sexual nature or sexual abuse as defined in section 1 of P.L.1992, c.109 (C.2A:61B-1) if the trustee, director, officer, employee, agent, servant or volunteer had a supervisory or oversight role over the person committing the act of sexual assault, other crime of a sexual nature or sexual abuse as defined in section 1 of P.L.1992, c.109 (C.2A:61B-1);
(2) any trustee, director, officer, employee, agent, servant or volunteer of a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes causing damage as the result of the negligent operation of a motor vehicle; or
(3) an independent contractor of a nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes.
(cf: P.L.1995, c.183, s.1)
3. 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 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 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. A civil action for damages for injury or illness based on sexual abuse may be commenced against the actor at any time.
c. A civil action for damages for injury or illness based on sexual abuse against a person who knowingly permitted or acquiesced in an act of sexual abuse may be commenced at any time prior to the victim's 30th birthday regardless of when the injury was discovered. On and after the victim's 30th birthday, any such action shall be brought pursuant to the provisions of subsection d. of this section.
d. In any civil action for damages for injury or illness based on sexual abuse brought against a person who knowingly permitted or acquiesced in an act of 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] ten years after reasonable discovery, provided that any such action against a person who knowingly permitted or acquiesced in an act of sexual abuse which occurs on or after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) 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)
4. (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).
5. 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)
6. (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.
7. 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)
8. (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.
9. 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)
10. (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.
11. (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.
12. (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.
13. (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.
14. (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.
15. (New section) a. Sections 1 and 2 and subsection b. of section 3 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 and subsection b. of section 3 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.
16. This act shall take effect immediately.
STATEMENT
This bill amends the statute of limitations for civil actions for damages based on sexual abuse. It would eliminate the statute of limitations for these actions in certain instances and extend the statute of limitations in other instances. The bill would also increase the liability of certain entities and individuals for sexual abuse; establish training programs for certain persons who work with children; and impose additional requirements for background checks.
Currently, section 1 of P.L.1992, c.109 (C.2A:61B-1), known as the Child Sexual Abuse Act, provides that a civil action under the act accrues at the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse. Any such action must be brought within two years after reasonable discovery.
Under the bill, a civil action under the Child Sexual Abuse Act may be commenced against the actor at any time. Such a civil action may be based on sexual abuse that occurred before the enactment of the bill.
The bill provides that a civil action against a person who knowingly permitted or acquiesced in an act of sexual abuse may be commenced at any time prior to the victim's 30th birthday regardless of when the injury was discovered. On and after the victim's 30th birthday, any such action would be required to be brought within ten years after reasonable discovery. However, any such action against a person who knowingly permitted or acquiesced in an act of sexual abuse which occurs on or after the effective date may be commenced at any time.
Under current law, a trustee, director, officer, employee, agent, servant or volunteer of a nonprofit corporation, society or association organized exclusively for religious, charitable, educational, or hospital purposes is liable for a willful, wanton or grossly negligent act of commission or omission, including sexual assault and any other crimes of a sexual nature. This bill provides that the nonprofit corporation, society or association would be liable for these willful, wanton or grossly negligent acts, including sexual assault, any other crime of a sexual nature or sexual abuse as defined in the Child Sexual Abuse Act.
The bill also imposes liability on the corporation, society or association for any negligent act resulting in the commission of sexual assault, any other crime of a sexual nature or sexual abuse.
In addition, the bill imposes liability on a trustee, director, officer, employee, agent, servant or volunteer causing damage by any negligent act resulting in the commission of sexual assault, any other crime of a sexual nature or sexual abuse if the individual had a supervisory or oversight role over the person committing the act.
The bill amends the Child Sexual Abuse Act to provide that any person who knowingly permits or acquiesces in sexual abuse by any other person is also liable. Under current law, a parent, resource family parent, guardian or other person standing in loco parentis within the household is liable for knowingly permitting or acquiescing in sexual abuse.
In addition, the bill imposes new requirements for training and background checks for individuals who work with children. Current law, set out in 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. 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 The bill would make these background checks mandatory require that they be conducted every three years.
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. The bill makes these background checks mandatory and requires that they be conducted every three years.
The bill also provides 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.
The bill requires 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 such abuse.
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.
The bill provides that, 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 would be liable in an action for damages brought under the provisions of the Child Sexual Abuse Act.
The provisions of the bill concerning liability for nonprofit organizations and individuals working with these organizations would 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. In addition, these provisions of the bill would also revive any action pursuant to the Child Sexual Abuse Act 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.
