Comprehensive Child Protection 2007 Full Text

COMPREHENSIVE PROTECTION FROM CHILDHOOD SEXUAL ABUSE ACT OF 2008

PREAMBLE

Whereas childhood sexual abuse is a “silent, violent epidemic” according to the American Medical Association, and its victims include infants, toddlers, young children, and adolescents; and

Whereas 1 out every 4 women, and 1 out of every 6 men, according to the U.S. Centers for Disease Control and Prevention, were sexually abused by an adult or older child before the age of 18; and

Whereas every child has the innate right to be safe and protected from all forms of abuse and neglect, including sexual abuse and exploitation; and

Whereas the adults who provide services for, educate, supervise, or are entrusted with care of children have an obligation to keep such children safe and protected from sexual abuse and exploitation; and

Whereas the failure of adult caretakers to identify and report potential threats of sexual abuse and exploitation has been identified as a contributing cause of such abuse; and

Whereas the mental health professions have established that children who are sexually abused frequently are not able to disclose, through no fault of their own, their abuse until later in their adult years; and

Whereas some sexual abuse victims are denied equal access to the Victim Compensation Fund for treatment because of delays in reporting their sexual abuse; and

Whereas it is documented that the delay in disclosure of sexual abuse by children often prevents their abusers from being prosecuted, and

Whereas it is established that a sexual abuser who is not identified, and not prosecuted, is likely to abuse more; and

Whereas those institutions which harbor or protect sexual abusers are failing in their duty and legal mandate to protect children; and

Whereas a survivor of sexual abuse who is not able to obtain the prosecution of the person who caused the abuse is denied basic justice;

BE IT RESOLVED THAT:

In order to insure protection of children from sexual abuse, the reporting requirements of Chapter 119, § 51A must contain more substantial penalties, not only for individuals who fail to report abuse, but also for the institutions whose employees fail to report. Also, there must be reports of past abuse to appropriate law enforcement agencies if there is a credible threat of present abuse.
As many sexual abuse victims are not able to obtain medical and therapeutic treatment under the State Compensation of Victims of Violent Crimes Act, the provisions of Chapter 258C must be amended to make funds available to victims if a mental health professional documents their abuse.
Since many sexual abusers escape prosecution because their victims cannot take action against them until the criminal statute of limitations has run out, and these sexual abusers are free to re-offend until they are successfully prosecuted, we must eliminate entirely the statute of limitations on the entire range of sex offences against children under the age of 18.
Criminal statute of limitations reform cannot be made retroactive, so many survivors of abuse will never be able to prosecute their abusers. To provide some measure of justice for those victims, and to identify their abusers in a public forum so other children will be protected, we must eliminate the civil statute of limitations.
To provide justice for past victims of abuse, we must create a mechanism which allows for civil actions for sexual abuse of minors.
Because some of our institutions have not met their obligations in the past to protect our children from sexual abuse, we must encourage them to better protect children in the future by eliminating, as have forty-seven other states, the doctrine of charitable immunity.
Again, to provide justice for past victims of abuse, we must create a mechanism for civil actions in which charitable immunity is an issue.
In recognition that the issues which are involved in the protection of children from sexual abuse are complex and involve several disciplines, the Legislature should establish a permanent Commission to advise and recommend additional legislation.

SECTION 1. This Act may be cited as the Comprehensive Protection from Childhood Sexual Abuse Act of 2007.

SECTION 2. There shall be established a permanent Commission for the Protection of Children from Sexual Abuse, which Commission shall meet monthly, to consider all issues which relate to the protection of children from sexual abuse. The Commission shall have a chairman appointed by the governor, and 20 additional members, all serving without compensation, three appointed by the Speaker of the House, three appointed by the President of the Senate, and the remainder appointed by the governor, all to serve at the pleasure of their respective appointing authorities. Of those members appointed by the governor, three shall be survivors of childhood sexual abuse, three shall be licensed mental health professionals who are actively involved in childhood sexual abuse issues, three shall be professionals in law enforcement, the court, or the correctional system, and three shall be advocates for victims of childhood sexual abuse. The Commission shall report to the Legislature, on before December 31^st of each year, with specific legislative proposals to provide protection of children from sexual abuse.

SECTION 3. Section 51A of Chapter 119 of the General Laws, as appearing in the 2004 Official Edition, shall be amended by adding at the end of said section the following paragraph: -

Notwithstanding any other provision of this section, any person who, in his professional capacity, shall have reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from sexual abuse inflicted upon him, which causes harm or substantial risk of harm to the child's health or welfare, and who is required therefor to make oral and written reports of such incidents, but who fails to do so, shall be punished by a term of imprisonment of up to two and one-half years, or a fine of not more than ten thousand dollars, or both. Any corporation or other institution, which employs an individual required to make a report pursuant to this section as part of his official duties, and said employee fails to make such report, shall be punished by a fine of not more than one hundred thousand dollars.

SECTION 4. Section 51A of Chapter 119 of the General Laws, as appearing in the 2004 Official Edition, shall be amended by adding at the end of the first sentence thereof the following sentence:

Any person who, in his professional capacity, has reasonable cause to believe that a person who is alleged to have sexually abused a child in the past, presently represents a credible threat to a child under the age of eighteen years in a child or youth serving organization, shall have the same obligation to make oral and written reports of such threat to the appropriate law enforcement agency or official.

SECTION 5. Chapter 258C of the General Laws is hereby amended by striking out section 2 (b), as so appearing, and inserting in place thereof the following section: -

(b) No compensation shall be paid under this chapter unless the claimant demonstrates that the crime was reported to the police or other law enforcement authorities or to an agency or entity obligated by law to report complaints of criminal misconduct to law enforcement authorities. Except in the case where the division finds such report to have been delayed for good cause, such report shall have been made within five days after the occurrence of such crime. In the case of a claimant who was sexually abused as a minor, such good cause shall include the report of any duly licensed mental health professional stating an opinion that the claimant did not make the connection between the sexual abuse and the harm suffered as a result by the claimant at the time the abuse occurred, and that claimant’s failure to make the connection was consistent with the typical responses to sexual abuse by such victims.

SECTION 6. Chapter 258C of the General Laws is hereby amended by striking out section 5 (a) (1), as so appearing, and inserting in place thereof the following section: -

(a) (1) A claim for compensation under this chapter shall be filed within three years of the date of the crime. In the case of a claimant who was sexually abused as a minor, said three years shall commence to run when the claimant first makes the connection between the sexual abuse and the harm suffered as a result by the claimant. The report of any duly licensed mental health professional stating an opinion as to the date when the claimant first made the connection between the sexual abuse and the harm suffered by the claimant, and that the claimant’s failure to make the connection prior to that date was consistent with the typical responses to sexual abuse by such victims, shall be prima facie evidence in all proceedings under this chapter.

SECTION 7. Chapter 277 of the General Laws is hereby amended by striking out the second and third sentences of section 63, as so appearing, and inserting in place thereof the following: -

An indictment or complaint for an offense set forth in section 13B, 13F, 13H, 13L, 22, 22A, 23 or 24B of chapter 265 or for conspiracy to commit any of these offenses, or an accessory thereto, or any one or more of them, may be found and filed at any time after the commission of such offense, provided that the victim was under the age of 18 when the offense was committed.

SECTION 8. Section 4C of Chapter 260 of the General Laws, as appearing in the 2004 Official Edition, shall be amended by striking out the first paragraph thereof as so appearing, and inserting in place thereof the following: -

Any actions for assault and battery alleging the defendant sexually abused a minor, or for negligence alleging that the defendant negligently supervised a third person who sexually abused a minor, or that the defendant’s conduct caused or contributed to the sexual abuse of a minor by a third person, may be commenced within three years after the plaintiff first reports the allegations of sexual abuse to a police department or other law enforcement agency. Said three year period shall be tolled for one year after the rendering of a verdict in any criminal proceeding undertaken as a result of such report, or until one year after the plaintiff receives written notice from the law enforcement agency that it has declined to prosecute. If a claimant has reported the allegations of sexual abuse to a police department or other law enforcement agency prior to the effective date of this act, said claimant may commence an action within three years after the effective date of this act.

SECTION 9. Section 85K of Chapter 231 of the General Laws, as appearing in the 2004 Official Edition, shall be amended by adding at the end thereof the following:

Notwithstanding any other provision of this section, the limitations on liability set forth in this section shall not apply if the claim is for intentional or negligent conduct which caused or contributed to the sexual abuse of a minor. For purposes of this section, “sexual abuse” shall be defined as set forth in section 4C of chapter 260.

SECTION 10. Section 85W of Chapter 231 of the General Laws, as appearing in the 2004 Official Edition, shall be amended by adding at the end thereof the following:

SECTION 11. The provisions of Sections 9 & 10 shall apply to all claims under Section 4C of Chapter 260 which have accrued, and to all actions which are pending, on the date upon which it becomes effective.

SECTION 12. The provisions of Sections 9 & 10 shall be deemed to be retroactive to the fullest extent permitted under the Constitution of the United States and the Declaration of Rights of the Commonwealth of Massachusetts.

SECTION 13. The provisions of this bill shall become effective upon passage.

SECTION 14. Each section of this Act shall be separable and shall continue in effect if any provision hereof is deemed to be unconstitutional or otherwise ineffective.

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