Bill Text: NY S00952 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to establishing the New York child victim reconciliation and compensation fund; relates to the statute of limitations for sex offenses committed against a child; relates to the reporting of child abuse; relates to child protection and criminal history searches; and relates to providing for the reimbursement of not-for-profit corporations for fees collected for criminal history searches by the office of court administration.

Spectrum: Strong Partisan Bill (Republican 16-1)

Status: (Introduced) 2019-03-19 - RECOMMIT, ENACTING CLAUSE STRICKEN [S00952 Detail]

Download: New_York-2019-S00952-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                           952
                               2019-2020 Regular Sessions
                    IN SENATE
                                     January 9, 2019
                                       ___________
        Introduced  by  Sens.  YOUNG,  AMEDORE, FELDER, FUNKE, GALLIVAN, GRIFFO,
          HELMING, JACOBS, LANZA, LITTLE, ORTT,  RANZENHOFER,  RITCHIE,  ROBACH,
          SERINO,  SEWARD,  TEDISCO  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Finance
        AN ACT to amend the state finance law, in relation to  establishing  the
          New  York  child victim reconciliation and compensation fund; to amend
          the criminal procedure law, in relation to the statute of  limitations
          for  sex  offenses  committed  against  a  child;  to amend the social
          services law, in relation to the reporting of child  abuse;  to  amend
          the  business corporation law, the not-for-profit corporation law, the
          religious corporations law and the cooperative  corporations  law,  in
          relation  to  child  protection  and criminal history searches; and to
          amend part J of chapter 62 of the laws of 2003 amending the county law
          and other laws relating to fees collected, in  relation  to  providing
          for   the   reimbursement  of  not-for-profit  corporations  for  fees
          collected for criminal history searches by the office of court  admin-
          istration
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Legislative findings. The Legislature hereby finds  that  a
     2  number  of individuals within the state have been unable to seek redress
     3  for sexual abuse suffered as a child. Due to the unique nature of  child
     4  sexual abuse and fears of reprisal, child victims often suffer for years
     5  in  silence  and  are often unable to comprehend the fact that they have
     6  been victimized. This can lead to repression  of  the  abuse  and  often
     7  results  in  the  victim's  confusion, anger and associated difficulties
     8  later in life. Due to the nature of abuse a victim has been subject  to,
     9  and  their  perceived  or actual inability to pursue legal action at the
    10  time of the abuse, many victims have been psychologically unable to file
    11  a civil litigation claim within the requisite  statute  of  limitations.
    12  Due to the amount of time that may have transpired since the instance or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04024-01-9

        S. 952                              2
     1  instances  of  abuse, the claim may no longer be pursued through typical
     2  litigation. In some instances, the sexual abuser  may  now  be  impover-
     3  ished,  unavailable,  unable  to  be  located,  or may have passed away,
     4  making  it  impossible  or  impractical  for  the victim to seek redress
     5  through the court system. In order to afford those victims  an  opportu-
     6  nity to seek the redress due to them, the legislature hereby establishes
     7  a  New  York child victim reconciliation and compensation fund, which is
     8  intended to provide assistance to those  who  were  sexually  abused  as
     9  children.
    10    §  2.  The  state finance law is amended by adding a new article 17 to
    11  read as follows:
    12                                 ARTICLE 17
    13         NEW YORK CHILD VICTIM RECONCILIATION AND COMPENSATION FUND
    14  Section 300. Purpose.
    15          301. Definitions.
    16          302. New York child victim reconciliation and compensation fund.
    17          303. Filing of claim.
    18          304. Hearing officers; powers and duties.
    19          305. Claims administrator review.
    20          306. Payments to eligible individuals.
    21          307. Regulations.
    22    § 300. Purpose. It is the purpose of this article to  provide  compen-
    23  sation  and  assistance  to any individual who has incurred physical and
    24  psychological damages based upon the result of  childhood  sexual  abuse
    25  who  has  not  previously been compensated for such alleged abuse and is
    26  now barred from pursuing a civil action for damages against the abuser.
    27    § 301. Definitions. For the purposes of this  article,  the  following
    28  terms shall have the following meanings:
    29    1. "claimant" means any individual who:
    30    (a)  suffered  sexual  abuse  as  defined  in subdivision five of this
    31  section; and
    32    (b) such abuse occurred prior to the claimant's  eighteenth  birthday;
    33  and
    34    (c) such individual is barred by article two of the civil practice law
    35  and rules from instituting a civil action or proceeding; and
    36    (d)  such  individual  has  not  otherwise  received  compensation for
    37  damages resulting from, or on account of, such  sexual  abuse  by  civil
    38  settlement,  judgment or other private method, including but not limited
    39  to arbitration; and
    40    (e) no other individual on behalf of the claimant during the period of
    41  the claimant's minority has received compensation for the same claim.
    42    2. "economic loss" means any identifiable pecuniary loss from  employ-
    43  ment, medical expenses, loss of business, loss of economic opportunities
    44  to  the  extent  that  such loss would be recoverable had the statute of
    45  limitations not expired and for which the claimant  has  not  previously
    46  received compensation;
    47    3. "eligible individual" means an individual determined to be eligible
    48  for compensation pursuant to section three hundred five of this article;
    49    4.  "noneconomic losses" means losses for physical and emotional pain,
    50  suffering inconvenience, physical impairment, mental anguish, disfigure-
    51  ment, loss of enjoyment of life, loss of society and companionship, loss
    52  of consortium (other than loss of domestic  service),  hedonic  damages,
    53  injury  to  reputation, and all other nonpecuniary losses of any kind of
    54  nature; and
    55    5. "sexual abuse" means acts  proscribed  under  article  one  hundred
    56  thirty  of the penal law, acts constituting incest as defined in section

        S. 952                              3
     1  255.27, 255.26 or 255.25 of the penal law, or acts including  the  indi-
     2  vidual in a sexual performance as defined in section 263.05 of the penal
     3  law,  or  a predecessor statute that prohibited such conduct at the time
     4  of the act.
     5    §  302. New York child victim reconciliation and compensation fund. 1.
     6  There is hereby created in the joint custody of  the  state  comptroller
     7  and  a chief administrator, who shall be appointed as provided in subdi-
     8  vision three of this section, a special fund to be  known  as  the  "New
     9  York child victim reconciliation and compensation fund."
    10    2. (a) Such fund shall consist of three hundred million dollars trans-
    11  ferred  from  the  state  asset  forfeiture  funds  and funds secured by
    12  payments associated with state sanctioned  deferred  prosecution  agree-
    13  ments  currently  held  on  deposit  with  the  office  of the Manhattan
    14  district attorney.
    15    (b) The office of the Manhattan district attorney  shall  additionally
    16  remit  five  percent  of  the total of any future state asset forfeiture
    17  funds which have been secured by such district attorney by January first
    18  of the subsequent year.
    19    (c) The chief administrator is authorized to accept  such  amounts  as
    20  may  be contributed by individuals, business concerns, or other entities
    21  to carry out the purposes of this article.
    22    3. (a) The chief administrator shall be selected by  the  state  comp-
    23  troller in consultation with the leaders of the senate and assembly.
    24    (b) The chief administrator shall be qualified by previous experience,
    25  training  and education to administer such a fund. The chief administra-
    26  tor shall be subject to removal pursuant to the public officers law  and
    27  shall  be  subject to the jurisdiction of the joint commission on public
    28  ethics for all disciplinary matters. No bond shall  be  required  before
    29  entering into service.
    30    (c)  Prior  to entering into service, the chief administrator shall be
    31  required to file a long form ethics filing with the joint commission  on
    32  public ethics.
    33    4.  The chief administrator shall appoint a claims administrator.  The
    34  claims administrator, in  consultation  with  the  chief  administrator,
    35  shall promulgate procedural and substantive rules for the administration
    36  of the fund.
    37    5. (a) The chief administrator shall appoint hearing officers who have
    38  a record of substantive experience in the investigation, prosecution and
    39  defense  of  child sexual abuse allegations. Such hearing officers shall
    40  receive the same remuneration as hearing officers in a comparable  agen-
    41  cy.
    42    (b)  The  chief  administrator shall have the power to appoint and pay
    43  such experts as sought by hearing officers in aid of the determination.
    44    6. The chief administrator shall have the power to appoint administra-
    45  tive personnel to administer the provisions of this section pursuant  to
    46  a hiring plan approved by the state comptroller.
    47    7.  The  claims  administrator,  in  conjunction  with the state comp-
    48  troller, shall be responsible for the administration of funds  deposited
    49  in the New York child victim reconciliation and compensation fund estab-
    50  lished pursuant to this section.
    51    §  303.  Filing  of claim. 1. The claims administrator shall develop a
    52  claim form that claimants shall use when submitting  claims  under  this
    53  section  and shall ensure that such form may be submitted electronically
    54  if determined to be practicable.

        S. 952                              4
     1    2. A claimant may file a claim for  compensation  under  this  article
     2  with  the  claims administrator. The claim shall state the factual basis
     3  for eligibility for compensation and the amount of compensation sought.
     4    3.  The  form  required under subdivision one of this section shall be
     5  under oath and shall provide the following information:
     6    (a) a narrative of the events containing Information from the claimant
     7  concerning the identity of the alleged abuser, the  physical  or  mental
     8  harm  that  the claimant suffered, is suffering from, and/or may reason-
     9  ably be expected to suffer in the future.
    10    (b) information from the claimant  concerning  any  possible  economic
    11  losses  that  the  claimant has suffered or is expected to suffer as the
    12  result of sexual abuse.
    13    (c) information  regarding  collateral  sources  of  compensation  the
    14  claimant  has  received  or  is  entitled to receive as a result of such
    15  abuse.
    16    (d) any other material that the claimant wishes to present in  aid  of
    17  the determination of the claim.
    18    §  304.  Hearing officers; powers and duties. 1. Proceedings conducted
    19  pursuant to this article shall be presided over by a hearing officer who
    20  shall have substantial experience relating to the  litigation,  investi-
    21  gation, prosecution or defense of child sexual abuse claims.
    22    2. The hearing officer shall set the time and place of any hearing and
    23  shall give reasonable notice to the parties.
    24    3.  The hearing officer shall conduct a fair and impartial hearing and
    25  take  all  action  necessary  to  avoid  delay  in  the  disposition  of
    26  proceedings  and  to  maintain order. The hearing officer shall have all
    27  powers necessary to those ends, including, but not limited to, the power
    28  to:
    29    (a) administer oaths and affirmations;
    30    (b) cause subpoenas to be issued as authorized by law;
    31    (c) rule upon offers of proof and receive evidence;
    32    (d) order or limit discovery as the interests of justice may require;
    33    (e) regulate the course of the hearing and the conduct of the  parties
    34  and their counsel;
    35    (f)  hold  conferences  for  the  settlement  or simplification of the
    36  issues by consent of the parties;
    37    (g) consider and rule upon all procedural and other motions  appropri-
    38  ate in adjudicative proceedings;
    39    (h)  take notice of any material fact not appearing in evidence in the
    40  record that is properly a matter of judicial notice;
    41    (i) make and file determinations to the claims administrator; and
    42    (j) exercise such other authority as is necessary  to  carry  out  the
    43  responsibilities of the hearing officer under this section.
    44    4.  Claimants  and  defendants  taking part in a proceeding under this
    45  section shall have:
    46    (a) the right to be represented by an attorney, and upon a showing  of
    47  indigence, may obtain appointed counsel;
    48    (b)  the  right  to  present  evidence,  including the presentation of
    49  witnesses and documents, expert testimony; and
    50    (c) any other due process rights  deemed  appropriate  by  the  claims
    51  administrator.
    52    §  305. Claims administrator review. 1. The claims administrator shall
    53  review all findings made by a hearing officer  in  each  case  submitted
    54  under this section and shall determine:
    55    (a)  whether  the  defendant is responsible for the conduct alleged by
    56  the claimant; and

        S. 952                              5
     1    (b) whether the claimant is an eligible individual under this section.
     2    2.  A  claimant  shall  be  deemed  an  eligible individual under this
     3  section when the claim administrator determines the claimant:
     4    (a) was a victim of the alleged conduct;
     5    (b) is an individual who has suffered economic or noneconomic loss  as
     6  a result of sexual abuse which occurred within the state; and
     7    (c) the individual has been unable to pursue a civil claim for damages
     8  resulting  from  the loss described in paragraph (b) of this subdivision
     9  due to the failure to file a judicial claim for damages  resulting  from
    10  such abuse within the requisite statute of limitations.
    11    3. The following factors shall be considered in determining the amount
    12  of compensation to be paid to such eligible individuals:
    13    (a)  the  nature,  extent  and  frequency of the sexual abuse that was
    14  found to have occurred;
    15    (b) the extent of the harm to the claimant, including any economic and
    16  noneconomic loss; and
    17    (c) the extent to which aggravating circumstances  are  alleged,  such
    18  as:
    19    (i) the age of the claimant;
    20    (ii) the severity of the abuse;
    21    (iii) the location of the abuse;
    22    (iv) threats of physical harm and/or retaliation;
    23    (v)  significant,  verifiable  and life altering psychological damage;
    24  and/or
    25    (vi) any other significant information relevant to the  claim  or  the
    26  defense of the claim.
    27    4. No later than ninety days after that date on which a claim is filed
    28  under section three hundred three of this article, unless good cause can
    29  be demonstrated, the claim administrator shall complete a review, make a
    30  determination,  and provide written notice to the claimant, with respect
    31  to the matters that were the subject of the claim under review.  Such  a
    32  determination shall be final and not subject to judicial review.
    33    5.  The  claims  administrator may not include punitive damages in any
    34  compensation paid under a claim under this article.
    35    6. The claims administrator shall reduce the  amount  of  compensation
    36  determined  under  this  section  solely by the amount of any collateral
    37  compensation the claimant has received or is entitled to  receive  as  a
    38  result of such sexual abuse.
    39    §  306. Payments to eligible individuals. 1. No later than twenty days
    40  after the date on which a determination is made by the  claims  adminis-
    41  trator  regarding  the  amount of compensation due a claimant under this
    42  article, the claims administrator shall authorize payment to such claim-
    43  ant of the amount determined with respect to such claimant.
    44    2. The  chief  administrator  shall  maintain  a  publicly  accessible
    45  website  which  lists the name of the perpetrator of the abuse which was
    46  found to have occurred, and which also includes the approximate date  or
    47  dates the abuse occurred and the approximate geographic location of each
    48  instance  of  abuse, as well as any other identifying information deemed
    49  by the chief administrator to be appropriate.
    50    § 307. Regulations. No later than ninety days after the effective date
    51  of this article, the chief administrator, in consultation with the state
    52  comptroller and the claims administrator, shall  promulgate  regulations
    53  to carry out this article, including regulations prescribing:
    54    1. forms to be used in submitting claims under this article;
    55    2. the information to be included in such forms;
    56    3. procedures for hearings and the presentation of evidence;

        S. 952                              6
     1    4.  procedures  to  assist an individual in filing and pursuing claims
     2  under this article; and
     3    5. other matters determined by the chief administrator and approved by
     4  the  state comptroller necessary to carry out the purposes of this arti-
     5  cle.
     6    § 3. Paragraph (f) of subdivision 3 of section 30.10 of  the  criminal
     7  procedure  law,  as separately amended by chapters 3 and 320 of the laws
     8  of 2006, is amended to read as follows:
     9    (f) [For purposes of a] A prosecution involving a  sexual  offense  as
    10  defined  in  article  one  hundred thirty of the penal law, other than a
    11  sexual offense delineated in paragraph (a) of subdivision  two  of  this
    12  section,  committed  against  a  child  less than eighteen years of age,
    13  incest in the first, second or  third  degree  as  defined  in  sections
    14  255.27,  255.26  and  255.25  of the penal law committed against a child
    15  less than eighteen years of age, or use of a child in a sexual  perform-
    16  ance as defined in section 263.05 of the penal law, [the period of limi-
    17  tation  shall  not  begin  to run until the child has reached the age of
    18  eighteen or the offense is reported  to  a  law  enforcement  agency  or
    19  statewide  central  register  of child abuse and maltreatment, whichever
    20  occurs earlier] may be commenced at any time.
    21    § 4. Paragraph (a) of subdivision 1  of  section  413  of  the  social
    22  services  law,  as  amended  by section 7 of part C of chapter 57 of the
    23  laws of 2018, is amended to read as follows:
    24    (a) The following persons and officials  are  required  to  report  or
    25  cause  a  report to be made in accordance with this title when they have
    26  reasonable cause to suspect that a child coming  before  them  in  their
    27  professional  or  official capacity is an abused or maltreated child, or
    28  when they have reasonable cause to suspect that a child is an abused  or
    29  maltreated  child  where the parent, guardian, custodian or other person
    30  legally responsible for such child comes before them  in  their  profes-
    31  sional  or  official  capacity and states from personal knowledge facts,
    32  conditions or circumstances which, if correct, would render the child an
    33  abused or maltreated child: any physician; registered physician  assist-
    34  ant;  surgeon;  medical  examiner;  coroner;  dentist; dental hygienist;
    35  osteopath;  optometrist;  chiropractor;  podiatrist;  resident;  intern;
    36  psychologist; registered nurse; social worker; emergency medical techni-
    37  cian;  licensed  creative  arts  therapist; licensed marriage and family
    38  therapist; licensed mental  health  counselor;  licensed  psychoanalyst;
    39  licensed  behavior analyst; certified behavior analyst assistant; hospi-
    40  tal personnel engaged in the admission, examination, care  or  treatment
    41  of  persons;  member  of  the  clergy; a Christian Science practitioner;
    42  school official, which includes but is not limited  to  school  teacher,
    43  school  guidance  counselor,  school psychologist, school social worker,
    44  school nurse, school administrator or other school personnel required to
    45  hold a teaching or administrative license or certificate; full or  part-
    46  time  compensated  school employee required to hold a temporary coaching
    47  license or professional coaching certificate;  social  services  worker;
    48  employee  of a publicly-funded emergency shelter for families with chil-
    49  dren; director of a children's overnight camp, summer day camp or  trav-
    50  eling  summer  day  camp,  as such camps are defined in section thirteen
    51  hundred ninety-two of the public health law;  day  care  center  worker;
    52  school-age  child  care  worker;  provider of family or group family day
    53  care; employee or volunteer in a residential care facility for  children
    54  that  is  licensed,  certified or operated by the office of children and
    55  family services; or any other child care or foster care  worker;  mental
    56  health  professional;  substance  abuse counselor; alcoholism counselor;

        S. 952                              7
     1  all persons credentialed by the office of alcoholism and substance abuse
     2  services; employees, who are expected to have  regular  and  substantial
     3  contact  with  children, of a health home or health home care management
     4  agency contracting with a health home as designated by the department of
     5  health  and  authorized under section three hundred sixty-five-l of this
     6  chapter or such employees who provide home and community based  services
     7  under a demonstration program pursuant to section eleven hundred fifteen
     8  of  the federal social security act who are expected to have regular and
     9  substantial  contact  with  children;  peace  officer;  police  officer;
    10  district  attorney or assistant district attorney; investigator employed
    11  in the office of a district attorney; or other law enforcement official.
    12    § 5. Subdivision 1 of section  413  of  the  social  services  law  is
    13  amended by adding five new paragraphs (e), (f), (g), (h) and (i) to read
    14  as follows:
    15    (e)  Unless the person confessing or confiding waives the privilege, a
    16  member of the clergy, or other minister of any religion or duly  accred-
    17  ited  Christian  Science  practitioner,  shall not be required to make a
    18  report  as  required  by  paragraph  (a)  of  this  subdivision  if  the
    19  confession  or  confidence  was made to him or her in his or her profes-
    20  sional character as spiritual advisor.
    21    (f) When a member of the clergy has reasonable cause to suspect that a
    22  child is an abused  or  maltreated  child  based  upon  any  information
    23  received  other than through a confession or confidence made pursuant to
    24  paragraph (e) of this subdivision, then such member of the clergy  shall
    25  promptly  make a report as required by paragraph (a) of this subdivision
    26  notwithstanding the fact that he or she may have also received a  report
    27  of  abuse or maltreatment through a confession or confidence made pursu-
    28  ant to paragraph (e) of this subdivision.
    29    (g) The provisions of paragraph (e) of this subdivision shall  not  be
    30  deemed  to  exempt a member of the clergy from any other requirements of
    31  law to prevent the perpetrator from committing additional acts of abuse.
    32    (h) For the purposes of this subdivision the term "member of the cler-
    33  gy" shall have the same definition as the term "clergyman" as set  forth
    34  in  section two of the religious corporations law and shall also include
    35  any person responsible for supervising a member of the clergy of a reli-
    36  gious institution or responsible for the administration of  a  religious
    37  institution.
    38    (i)  For the purposes of this subdivision the term "religious institu-
    39  tion" shall mean a religious corporation created to enable  its  members
    40  to  meet  for divine worship or other religious observances or a congre-
    41  gation, society, or other assemblage of persons who  are  accustomed  to
    42  statedly meet for divine worship or other religious observances, without
    43  having been incorporated for that purpose, as provided in section two of
    44  the religious corporations law.
    45    §  6.  Article 6 of the social services law is amended by adding a new
    46  title 6-B to read as follows:
    47                                  TITLE 6-B
    48                  REPORTS OF CHILD ABUSE TO LAW ENFORCEMENT
    49  Section 429-a. Persons  and  officials  required  to  report  cases   of
    50                   suspected  child  abuse  to appropriate law enforcement
    51                   agency.
    52          429-b. Penalties for failure to report.
    53          429-c. Immunity from liability.
    54          429-d. Review of existing records for allegations that  a  child
    55                   is an abused child; district attorney; penalty.

        S. 952                              8
     1    §  429-a.  Persons and officials required to report cases of suspected
     2  child abuse to appropriate law enforcement agency. 1. (a) The  following
     3  persons  and  officials  are  required to report or cause a report to be
     4  made to an appropriate law enforcement agency when they have  reasonable
     5  cause to suspect in their professional or official capacity that a child
     6  is  an  abused  child:  any  physician;  registered physician assistant;
     7  surgeon; medical examiner; coroner; dentist;  dental  hygienist;  osteo-
     8  path;  optometrist; chiropractor; podiatrist; resident; intern; psychol-
     9  ogist; registered nurse; emergency medical technician; hospital  person-
    10  nel engaged in the admission, examination, care or treatment of persons;
    11  member of the clergy; a Christian Science practitioner; school official;
    12  social  services  worker;  day care center worker; provider of family or
    13  group family day care; employee  or  volunteer  in  a  residential  care
    14  facility  or  any  other child care or foster care worker; mental health
    15  professional; substance abuse  counselor;  alcoholism  counselor;  peace
    16  officer;  police officer; district attorney or assistant district attor-
    17  ney; investigator employed in the office  of  a  district  attorney;  or
    18  other law enforcement official.
    19    (b)  For  the  purposes  of this section the term "abused child" shall
    20  mean a child under the age of eighteen years upon whom a person eighteen
    21  years of age or more who is defined in paragraph (a) of this subdivision
    22  and who is not the parent or other person legally responsible  for  such
    23  child's care:
    24    (i)  intentionally  or  recklessly  inflicts  physical injury, serious
    25  physical injury or death, or
    26    (ii) intentionally or recklessly engages in conduct  which  creates  a
    27  substantial  risk  of  such  physical injury, serious physical injury or
    28  death, or
    29    (iii) commits or attempts to commit  against  a  child  the  crime  of
    30  disseminating  indecent  materials  to  minors  pursuant  to article two
    31  hundred thirty-five of the penal law, or
    32    (iv) engages in any conduct prohibited by article one  hundred  thirty
    33  or two hundred sixty-three of the penal law.
    34    (c) For the purposes of this section the term "law enforcement author-
    35  ities"  shall  mean a municipal police department, sheriff's department,
    36  the division of state police or any officer thereof or a district attor-
    37  ney or assistant district attorney. Notwithstanding any other  provision
    38  of  law, law enforcement authorities shall not include any child protec-
    39  tive service or any society for the prevention of cruelty to children as
    40  such terms are defined in section  four  hundred  twenty-three  of  this
    41  article.
    42    (d)  For  the purposes of this section the term "member of the clergy"
    43  shall have the same definition as the term "clergyman" as set  forth  in
    44  section two of the religious corporations law and shall also include any
    45  person responsible for supervising a member of the clergy of a religious
    46  institution  or responsible for the administration of a religious insti-
    47  tution.
    48    (e) For the purposes of this section the term "religious  institution"
    49  shall mean a religious corporation created to enable its members to meet
    50  for  divine  worship  or  other religious observances or a congregation,
    51  society, or other assemblage of persons who are accustomed  to  statedly
    52  meet  for  divine worship or other religious observances, without having
    53  been incorporated for that purpose, as provided in section  two  of  the
    54  religious corporations law.
    55    2. (a) Unless the person confessing or confiding waives the privilege,
    56  a  member  of  the  clergy,  or  other  minister of any religion or duly

        S. 952                              9
     1  accredited Christian Science practitioner, shall not be required to make
     2  a report as required by paragraph (a) of subdivision one of this section
     3  if the confession or confidence was made to him or her  in  his  or  her
     4  professional character as spiritual advisor.
     5    (b) When a member of the clergy has reasonable cause to suspect that a
     6  child  is an abused child based upon any information received other than
     7  through a confession or confidence made pursuant  to  paragraph  (a)  of
     8  this  subdivision,  then such member of the clergy shall promptly make a
     9  report as required by paragraph (a) of subdivision one of  this  section
    10  notwithstanding  the fact that he or she may have also received a report
    11  of abuse through a confession or confidence made pursuant  to  paragraph
    12  (a) of this subdivision.
    13    (c)  The  provisions of paragraph (a) of this subdivision shall not be
    14  deemed to exempt a member of the clergy from any other  requirements  of
    15  law to prevent the perpetrator from committing additional acts of abuse.
    16    3.  Nothing  in this title shall be construed to require the report of
    17  information by a person required to report herein when such  information
    18  is otherwise privileged from disclosure by law.
    19    §  429-b.  Penalties  for failure to report. 1. Any person required by
    20  this title to report a case of suspected child abuse who willfully fails
    21  to do so shall be guilty of a class A misdemeanor.
    22    2. Any person required by this title to report  a  case  of  suspected
    23  child  abuse who knowingly and willfully fails to do so shall be civilly
    24  liable for the damages proximately caused by such failure.
    25    § 429-c. Immunity from liability. 1. Any  person  who  in  good  faith
    26  makes  a report of allegations of child abuse as required by this title,
    27  including those who in good faith make a report to the wrong  recipient,
    28  shall have immunity from criminal liability which might otherwise result
    29  by reason of such actions.
    30    2. Any person who reasonably and in good faith makes a report of alle-
    31  gations  of  child  abuse as required by this title, shall have immunity
    32  from civil liability which might otherwise  result  by  reason  of  such
    33  actions.
    34    § 429-d. Review of existing records for allegations that a child is an
    35  abused  child; district attorney; penalty. 1. Within three months of the
    36  effective date of this section, all members of  the  clergy  shall:  (a)
    37  review  all  institutional  records  within  their control and any other
    38  information they have obtained regarding allegations that a child is  an
    39  abused  child by a member of the clergy within twenty years prior to the
    40  effective date of this section; and (b) review whether they are aware of
    41  any other allegations that a child is an abused child  alleged  to  have
    42  been  abused  by  a  member  of  the  clergy who remains actively in the
    43  service of a religious institution, regardless of the date on which such
    44  allegation was made; and where such information or records raise reason-
    45  able cause to suspect that a child is an abused child, report such alle-
    46  gation to the district attorney. This section shall not apply to  infor-
    47  mation  obtained  through  confidential  communications  with clergy and
    48  privileged under law and no report need be made of allegations against a
    49  deceased individual.
    50    2. The willful failure of an individual defined in  paragraph  (a)  of
    51  subdivision  one  of section four hundred twenty-nine-a of this title to
    52  review existing records and information and report allegations contained
    53  therein, as provided by this section, shall be a class A misdemeanor.
    54    § 7. The commissioner of the office of children  and  family  services
    55  shall  review  the  reporting  form used to report suspected child abuse
    56  pursuant to section 429-a of  the  social  services  law,  as  added  by

        S. 952                             10
     1  section  six  of  this act, and, if necessary, shall revise such form to
     2  make it appropriate for reporting to law enforcement agencies.
     3    §  8.  The business corporation law is amended by adding a new section
     4  113 to read as follows:
     5  § 113. Child protection and criminal history searches.
     6    Any corporation as defined by section one hundred two of this  article
     7  shall perform a criminal history search on all individuals that may work
     8  or  otherwise  have reason in their duties to be engaged in unsupervised
     9  activities with children under the age of eighteen; or individuals  that
    10  may participate in activities with children under the age of eighteen in
    11  a setting without constant agency or parental oversight.
    12    §  9.  The  not-for-profit  corporation law is amended by adding a new
    13  section 116 to read as follows:
    14  § 116. Child protection and criminal history searches.
    15    Any corporation as defined by section one hundred two of this  article
    16  shall perform a criminal history search on all individuals that may work
    17  or  otherwise  have reason in their duties to be engaged in unsupervised
    18  activities with children under the age of eighteen; or individuals  that
    19  may participate in activities with children under the age of eighteen in
    20  a setting without constant agency or parental oversight.
    21    §  10.  The  religious  corporations  law  is  amended by adding a new
    22  section 28 to read as follows:
    23    § 28.  Child protection and criminal history searches.  Any  religious
    24  corporation  as  defined  by section two of this chapter shall perform a
    25  criminal history search on all individuals that may  work  or  otherwise
    26  have  reason  in  their  duties to be engaged in unsupervised activities
    27  with children under the age of eighteen; or individuals that may partic-
    28  ipate in activities with children under the age of eighteen in a setting
    29  without constant agency or parental oversight.
    30    § 11. The cooperative corporations law is  amended  by  adding  a  new
    31  section 6 to read as follows:
    32    §  6.  Child protection and criminal history searches. Any cooperative
    33  corporation as defined by section three of this article shall perform  a
    34  criminal  history  search  on all individuals that may work or otherwise
    35  have reason in their duties to be  engaged  in  unsupervised  activities
    36  with children under the age of eighteen; or individuals that may partic-
    37  ipate in activities with children under the age of eighteen in a setting
    38  without constant agency or parental oversight.
    39    §  12. Section 14 of part J of chapter 62 of the laws of 2003 amending
    40  the county law and other laws relating to fees collected, as amended  by
    41  section  7  of  part  K of chapter 56 of the laws of 2010, is amended to
    42  read as follows:
    43    § 14. Notwithstanding the provisions of any other  law:  (a)  the  fee
    44  collected  by  the  office  of court administration for the provision of
    45  criminal history searches and other searches  for  data  kept  electron-
    46  ically  by  the  unified  court  system shall be sixty-five dollars; (b)
    47  thirty-five dollars of each such fee collected shall be deposited in the
    48  indigent legal services fund established by section 98-b  of  the  state
    49  finance law, as added by section twelve of this act, (c) nine dollars of
    50  each such fee collected shall be deposited in the legal services assist-
    51  ance fund established by section 98-c of the state finance law, as added
    52  by  section  nineteen  of this act, (d) sixteen dollars of each such fee
    53  collected shall be deposited to the  judiciary  data  processing  offset
    54  fund established by section 94-b of the state finance law, [and] (e) the
    55  remainder  shall  be deposited in the general fund[.], and (f) provided,
    56  however, if a criminal history search or other searches  for  data  kept

        S. 952                             11
     1  electronically  by  the unified court system is being requested by or on
     2  the behalf of a not-for-profit corporation, to perform a criminal histo-
     3  ry search on an individual that would be working with children under the
     4  age  of  eighteen,  the office of court administration shall, subject to
     5  the approval of the director of the budget, establish protocols to reim-
     6  burse the not-for-profit corporation for  searches  conducted  and  such
     7  reimbursement  shall  come from the general fund. The division of budget
     8  shall also promulgate regulations to prevent not-for-profit corporations
     9  from over utilizing this reimbursement mechanism and to assure that  all
    10  reimbursed  search  fees are used for criminal history searches of posi-
    11  tions that would have direct interaction with children.
    12    § 13. The provisions of this  act  shall  be  severable,  and  if  any
    13  clause,  sentence,  paragraph,  subdivision or part of this act shall be
    14  adjudged by any court of competent  jurisdiction  to  be  invalid,  such
    15  judgment  shall not affect, impair, or invalidate the remainder thereof,
    16  but shall be confined in its operation to the  clause,  sentence,  para-
    17  graph,  subdivision or part thereof directly involved in the controversy
    18  in which such judgment shall have been rendered.
    19    § 14. This act shall take effect on  the  one  hundred  eightieth  day
    20  after it shall have become a law.
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