BILL ANALYSIS �
AB 1628
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1628 (Beall) - As Amended: April 11, 2012
As Proposed to be Amended
SUBJECT : CHILD SEXUAL ABUSE
KEY ISSUES :
1)IN ORDER TO ENSURE THAT A VICTIM OF CHILDHOOD SEXUAL ABUSE IS
ABLE TO SEEK COMPENSATION FROM THOSE RESPONSIBLE, SHOULD THE
STATUTE OF LIMITATIONS be extended from age 26 to age 35?
2)SHOULD THE LAW BE CLARIFIED TO PROHIBIT ALL CONFIDENTIAL
SETTLEMENTS IN CASES INVOLVING CHILDHOOD SEXUAL ABUSE TO HELP
ENSURE THAT THOSE WHO COMMIT THESE HEINOUS ACTS ARE NOT ABLE
TO HIDE THEIR CRIMES AND THEN HURT MORE VICTIMS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is intended to ensure that victims of childhood sexual
abuse are able to seek compensation from those responsible and
that those responsible cannot use confidential settlements to
hide their horrific acts. The bill extends the statute of
limitations for civil cases involving childhood sexual abuse
cases from when the plaintiff reaches 26 years of age to 35
years. Second, this bill prohibits all confidential settlements
in cases involving childhood sexual abuse. Finally, this bill
imposes new duties on private entities, which have employees or
representatives who are either mandated reporters or work
closely with minor children, under the Child Abuse and Neglect
Reporting Act (CANRA). The author writes that the bill is
necessary to address "gaps in the law that enable pedophiles to
shield their activities. The best way to stop hidden predators
from hurting more children is by identifying them. The law must
be changed to protect children, not child molesters." The bill
is supported by victims and child abuse prevention organizations
and trial lawyers. It is opposed by the California Catholic
Conference, which is concerned about the extension of the
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statute of limitations and seeks to clarify some of the changes
to the CANRA. The Independent Private Schools of California
opposes changes to the CANRA.
SUMMARY : Extends the statute of limitations for civil claims
based on childhood sexual abuse, and prohibits confidential
settlement agreements in those cases. Also imposes duties under
CANRA to private entities conducting business in California who
have employees or members who are either mandated reporters or
work closely with minor children. Specifically, this bill :
1)Extends the statute of limitations for a civil action against
a person or entity based on childhood sexual abuse until the
date the plaintiff reaches the age of 35 or within 3 years of
when the plaintiff discovers or reasonably should have
discovered that psychological injury or illness occurring
after the age of majority was caused by sexual abuse,
whichever occurs later.
2)Prohibits confidential settlement agreements in civil actions
that are based in whole or in part on an act of childhood
sexual abuse. States that a confidential settlement agreement
in any civil action involving childhood sexual abuse that is
entered into on or after January 1, 2013 is void as a matter
of law and against public policy. Subjects an attorney who
demands a confidential settlement agreement in any civil
action involving childhood sexual abuse subject to
disciplinary action by the State Bar.
3)Provides that if a mandated reporter willfully conceals his or
her failure to report an incident under CANRA the failure to
report is a continuing offense.
4)States that a private entity employing a mandated reporter
shall not impede or inhibit the duties of the mandated
reporter. Defines a "private entity" as "any entity that is
registered, incorporated, or has its principal place of
business in this state." Requires any private entity
conducting business in California that has employees, members,
agents, licensees, or representatives who are either mandated
reporters or work directly and in an unaccompanied setting
with minor children on more than an incidental and occasional
basis or have supervision or disciplinary power over minor
children to:
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a) Designate an employee to receive complaints of suspected
child abuse;
b) Implement an internal procedure for employees and other
specified individuals to report any incident of suspected
child abuse to a designated employee;
c) Distribute a written copy of the aforementioned
procedure to all employees; and
d) Ensure that a mandated report has been made in
accordance with statute.
5)Mandates a private entity conducting business in California
that has employees, members, agents, licensees, or
representatives who are either mandated reporters or work
directly and in an unaccompanied setting with minor children
on more than an incidental and occasional basis or have
supervision or disciplinary power over minor children to
conduct an enhanced background check on those persons. These
enhanced background checks shall include, but are not limited
to:
a) A past employment check;
b) A reference check; and
c) A criminal background check.
6)Provides that a violation of the mandated reporter provisions
is a misdemeanor punishable by six months imprisonment in the
county jail, a fine of up to $1,000, or both.
EXISTING LAW :
1)Generally provides that the time for commencing a civil action
for damages shall be within two years of the injury or death
caused by the wrongful act or neglect of another. (Code of
Civil Procedure Section 340. All references hereinafter are
to this code unless otherwise noted.)
2)Provides that the time for commencing an action based on
injuries resulting from childhood sexual abuse, as defined,
shall be eight years after the plaintiff reaches majority
(i.e., 26 years of age) or within three years of the date the
plaintiff discovers or reasonably should have discovered that
the psychological injury or illness occurring after the age of
majority was caused by the abuse, whichever occurs later.
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(Section 340.1.)
3)Prohibits a confidential settlement agreement in any civil
action the factual foundation for which establishes a cause of
action for civil damages for an act that is a felony sex
offense. However, does not apply to bar any of the following:
a) An agreement that requires nondisclosure of the amount
paid in settlement of a claim;
b) An agreement preventing the defendant or any person
acting on the defendant's behalf from disclosing any
medical information or personal identifying information
regarding the victim of the felony sex offense or of any
information revealing the nature of the relationship
between the victim and the defendant; and
c) Any right of the crime victim to disclose his or her
medical information or personal information, or
relationship to the defendant. (Section 1002.)
4)Requires that any mandated reporter who has knowledge of, or
observes, a child in his or her professional capacity or
within the scope of his or her employment whom he or she
knows, or reasonably suspects, has been the victim of child
abuse shall report that incident immediately, as specified.
(Penal Code Section 11166(a).)
5)Defines a "mandated reporter" under CANRA to include, among
others: a teacher; an administrator or employee of a public or
private organization whose duties require direct contact and
supervision of children; a licensee, an administrator, or an
employee of a licensed community care or child day care
facility; a public assistance worker; a social worker,
probation officer, or parole officer; a physician and surgeon,
psychiatrist, psychologist, dentist, resident, intern,
podiatrist, chiropractor, licensed nurse, dental hygienist,
optometrist, marriage and family therapist, clinical social
worker, professional clinical counselor, a child visitation
monitor, as defined; and a clergy member, as defined. (Penal
Code Section 11165.7(a).)
6)Provides that the reporting duties under CANRA are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be
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subject to any sanctions for making the report. (Penal Code
Section 11166(i)(1).)
7)Provides that any mandated reporter who fails to report an
incident of known or reasonably suspected child abuse or
neglect is guilty of a misdemeanor, punishable by up to six
months confinement in a county jail, or by a fine of $1,000,
or by both imprisonment and fine. (Penal Code Section
11166(c).)
8)Provides that volunteers of public or private organizations,
except a volunteer of a Court Appointed Special Advocate
program, whose duties require direct contact with and
supervision of children are not mandated reporters, but are
encouraged to obtain training in the identification and
reporting of child abuse and neglect and are further
encouraged to report known or suspected instances of child
abuse or neglect. (Penal Code Section 11165.7(b).)
9)Strongly encourages employers to provide their employees who
are mandated reporters with training in the duties imposed by
CANRA. Encourages public and private organizations to provide
their volunteers whose duties require direct contact with and
supervision of children with training in the identification
and reporting of child abuse and neglect. (Penal Code Section
11165.7(c), (f).)
COMMENTS : This bill seeks to protect victims of childhood
sexual abuse by (1) extending the statute of limitations in
these cases; (2) fully prohibiting confidential settlements; and
(3) strengthening mandatory reporter laws for private entities
whose employees or agents have close interaction with children.
This bill was heard in the Public Safety Committee on April 17,
2012 and passed on a vote of 4-1. The Public Safety Committee
focused specifically on the provisions of the bill regarding
enhancement of mandated reporter laws for private entities.
This analysis will focus instead on the extension of the statute
of limitations and the limitation on confidential settlements in
childhood sexual abuse cases.
According to the author, "Assembly Bill 1628 addresses gaps in
the law that enable pedophiles to shield their activities. The
best way to stop hidden predators from hurting more children is
by identifying them. The law must be changed to protect
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children, not child molesters."
Statute of Limitations : This bill extends the statute of
limitations for a civil action based on childhood sexual abuse
until the date the plaintiff reaches the age of 35. The current
civil statute of limitations is essentially until the age of 26
(age of majority plus eight years). There is also a tolling
provision for "delayed discovery," which is within three years
of the date the plaintiff discovers or reasonably should have
discovered that psychological injury or illness occurring after
the age of majority was caused by the sexual abuse. This bill
continues to apply the tolling provision to extend the statute
of limitations, so a plaintiff may file up to age 35 or within
the discovery timeframe, whichever occurs later.
According to the author:
Victims of childhood sexual abuse need more than 8 years of
the date they attain the age of majority to seek justice
against their predator(s) and/or their enablers. Given the
unique nature of sexual molestation, the stigma associated
with it, and the likelihood of repressed memories, the
current 8 year period favors the molester and not the
victim. Adults with repressed memories many times discover
the abuse long after their 26th birthday or without enough
time to allow victims to address their own personal
childhood molestation and take the next step against their
predator in effort to seek closure.
Adds supporter the California Protective Parents Association:
"Lengthening the statute of limitations is needed because it
takes many years for a victim to be able to confront an abuser,
become strong enough to sue, and gather the emotional resources
to file a claim."
Because of the uniqueness of childhood sexual abuse, the
difficulty with remembering and coming to terms with what has
occurred and then coming forward timely, many states have
special, extended statutes of limitations for childhood sexual
abuse. Four states have gone so far as to eliminate the civil
statute of limitations for these cases entirely -- Alaska,
Delaware, Florida, and Maine. Other states allow these actions
to be brought within a fixed number of years after a child
reaches the age of majority, some of which are rather lengthy,
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such as Connecticut's 30 year statute (meaning the victim could
be as old as 48).
The Legislature has the power to create, extend and change
statutes of limitations as it deems appropriate. For civil
statutes of limitations, the United States Supreme Court has
long held that:
Statutes of limitation find their justification in
necessity and convenience rather than in logic. They
represent expedients, rather than principles. . . . They
are by definition arbitrary, and their operation does not
discriminate against the just and the unjust claim, or the
voidable or unavoidable delay. . . . Their shelter has
never been regarded as what now is called a "fundamental
right" . . . the history of pleas of limitation shows them
to be good only by legislative grace and to be subject to a
relatively large degree of legislative control. (Chase
Securities Corp. v.Donaldson (1945) 325 U.S. 304, 314.)
In general, legislation operates prospectively only, unless
specified otherwise. For statutes of limitations, the
California Supreme Court has very recently opined on prospective
and retroactive application regarding the precise section of the
Code of Civil Procedure that this bill seeks to change:
As long as the former limitations period has not expired,
an enlarged limitations period ordinarily applies and is
said to apply prospectively to govern cases that are
pending when, or instituted after, the enactment took
effect. This is true even though the underlying conduct
that is the subject of the litigation occurred prior to the
new enactment. . . .
However, when it comes to applying amendments that enlarge
the limitations period to claims as to which the
limitations period has expired before the amendment became
law-that is, claims that have lapsed-the analysis is
different. Once a claim has lapsed (under the formerly
applicable statute of limitations), revival of the claim is
seen as a retroactive application of the law under an
enlarged statute of limitations. Lapsed claims will not be
considered revived without express �statutory] language of
revival. (Quarry v. Doe (2012) Cal. LEXIS 2854 1, 14-15
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(citations omitted).)
Since this bill does not contain revival language, it applies
prospectively only, governing cases that are pending or have not
yet been litigated, but does not work to revive cases where the
statute of limitations had run prior to the effective date of
this bill.
Proposed Author's Amendment : However, despite the recent case,
the California Catholic Conference is still concerned that the
extension of the statute of limitations in the bill could be
interpreted to apply retroactively. Therefore, the author has
agreed to the following amendment to clarify that the change
does not apply retroactively to revive claims that had
previously lapsed:
Add a new subdivision (r) to Section 340.1: The amendments to
this section, enacted at the 2012 portion of the 2011-12
Regular Session, are not intended to revive actions or causes
of action as to which the statute of limitations expired on or
before December 31, 2012.
Secret Settlements : Current law prohibits a confidential
settlement agreement in any civil action the factual foundation
for which establishes a cause of action for felony sex offense,
but does not bar an agreement that requires nondisclosure of the
amount paid in settlement of the claim.
This bill prevents any confidential settlements in cases based
in whole or in part on acts of childhood sexual abuse, as
defined, including confidentiality of amounts paid as part of
the settlement. Moreover, the bill states that a confidential
settlement agreement in any civil action involving childhood
sexual abuse that is entered into on or after January 1, 2013 is
void as a matter of law and against public policy. As further
disincentive, the bill subjects an attorney who demands a
confidential settlement agreement in any civil action involving
childhood sexual abuse subject to disciplinary action by the
State Bar.
This Bill Is Consistent With Existing Law Restricting Secrecy
Regarding Evidence of Elder Abuse: AB 634 (Steinberg, Chap. 242
, Stats. 2003) declared that confidential settlements of civil
actions arising under the Elder Abuse and Dependent Adult Civil
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Protection Act (EADACPA) were disfavored as a matter of public
policy and, therefore, were void, except as specified. (Code of
Civil Procedure Section 2017.310.)
This provision would be enhanced by AB 2149 (Butler), which
would prohibit a settlement agreement in a civil action brought
under EADACPA from containing any provision that prevents any
party from reporting to, cooperating with, or otherwise
contacting specified government agencies, which is being
reconsidered by this Committee today.
Why Secret Settlements Can Be Especially Dangerous to the Public
in the Childhood Sexual Abuse Context: As has been broadly
reported for years in the national and international media,
there have been a myriad of articles that have highlighted the
sexual abuse scandal engulfing the Roman Catholic Church,
including reports of repeated instances in which church leaders
allowed priests to stay in their positions despite allegations
that the priests were sexually molesting youngsters, or
shuffling them from one post to another, where they continued to
have contact with children. It has also been reported that the
Church has settled many claims charging sexual abuse by priests
on condition that the victims not reveal the abuse or the fact
or terms of the settlement.
The author notes a similar case involving a youth swimming
coach. According to the author, the coach's employer and
insurance carrier "entered into a secret agreement with a
swimming coach who had been sued for sexually molesting a young
teenage swimmer. Because of the agreement, the name of the
coach was never made public. He consequently went on to molest
another underage swimmer." The author writes that existing law,
by applying only cases "the factual foundation for which
establishes a cause of action for an act that may be prosecuted
as a felony sex offense," may not be broad enough to cover most
sexual abuse cases since in "most settlement agreements, the
defendant does not make admissions of wrongdoing that would
establish the factual foundation." This bill requires that such
cases be settled publically and, as a result, would hopefully
prevent abusers from repeatedly sexually assaulting children.
Arguments in Support : In support of the bill, Consumer
Attorneys of California writes that this bill will assist the
State of California in focusing efforts to avoid childhood
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sexual abuse.
California Protective Parents Association adds:
Child sexual abuse is a betrayal that affects children for
their entire lives. The affect on the victim and the cost
to society is staggering. Prevention through careful
screening of employees and early intervention through
making mandated reporters accountable is crucial. Equally
important is deterring perpetrators through the publicity
of civil law suits. . . . Secret settlements only
encourage perpetrators to offend again.
Writes Lawyers Against the Sex Abuse of Children:
The proposed civil procedure enhancements seek to punish
and hold predators and enablers legally responsible for
their actions. By extending the statute of limitations for
civil claims involving childhood sexual abuse from 26 years
of age to 35 years of age, the state will have successfully
financially accounted for an increasing population of sex
abuse victims who, due to repressed memories or otherwise,
fail to understand or appreciate the damage inflicted upon
them until later in their lives. Additionally, banning so
called "secret settlements" of civil claims involving
childhood sexual abuse will protect the identity of victims
while making it illegal for a predator to "buy their way
out" of public scrutiny, thus, shedding light on a secret
admission of guilt about which the public has a right to
know.
ArgumentS in Opposition : The California Catholic Conference
opposes the bill for several reasons, but the concern relevant
to this Committee regards the extension of the statute of
limitations. Not only is the Conference concerned that the
extension will apply prospectively (and the author has agreed to
take an amendment to address that concern, discussed above), the
group is also troubled by the extension from 26 years of age to
35 years. The California Catholic Conference has also provided
the Committee with proposed amendments to severely limit an
individual's ability to bring an action after he or she turns
26.
Independent Private Schools of California opposes the bill's
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changes to CANRA, particularly as it applies to volunteers and
believes that these changes could result in an increase in
erroneous child abuse accusations and that "many non-profits,
including many private K-12 schools, may consider dropping their
programs and services to children."
Amendments From Public Safety Committee : The Public Safety
Committee made several proposed changes to the mandated provider
section of the bill that will be taken as author's amendments in
this Committee. These amendments include limiting the enhanced
background check and deleting the requirement that the private
entity indemnify public entities and maintain liability
insurance on behalf of public entities.
REGISTERED SUPPORT / OPPOSITION :
Support
Lawyers Against the Sex Abuse of Children (sponsor)
California Police Chiefs Association
California Protective Parents Association
Child Abuse Listening Mediation
Child Abuse Prevention Center
Consumer Attorneys of California
Crime Victims United of California
National Center for Victims of Crime
Safe4 Athletes
Opposition
California Catholic Conference
Independent Private Schools of California
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334