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On March 14, the New Jersey Senate passed a bill (S.477) by a 32-1 vote that, if signed into law, will significantly expand the statute of limitations period for child sex abuse victims to pursue civil claims against their attackers and entities that allowed the assaults to occur. As currently drafted, the bill allows child victims of sexual abuse to file lawsuits up to the time they turn 55 years old, or seven years from the date they became aware of the abuse, whichever is later. The bill also allows adult victims of sexual abuse to bring suit within seven years from the time of their discovery of the abuse, regardless of age. Under the current New Jersey law, minor victims of sexual abuse have only two years from the date of the their 18th birthday, or two years from the date the victim learned of the injuries, whichever is later, to file suit.
Significantly, the proposed law also creates a one-time, two-year window during which any civil claims barred by the prior statute of limitations may be asserted. The proposed law has an effective date of December 1, 2019 and the two-year “grace period” would end on November 30, 2021. The expanded statute of limitations period and two-year “grace period” apply to both individual perpetrators and any liable institutions, including nonprofit organizations created for religious, charitable or educational purposes.
By expanding the statute of limitations for child sexual abuse claims, the proposed law increases the potential civil liability of public and private organizations, as well as individuals, under certain circumstances. First, as discussed in the Senate Judiciary Committee’s March 7, 2019 Statement on S.477, the proposed law amends the Charitable Immunity Act, N.J.S.A. 2A:53A-7, to expose nonprofit organizations to retroactive liability for willful, wanton or grossly negligent acts resulting in sexual abuse. The proposed law also retroactively applies an exception to the Charitable Immunity Act that subjects nonprofit organizations to liability for acts of simple negligence in the hiring, supervision or retention of an employee, agent or servant that led to the sexual abuse against a minor.
Second, the proposed law applies the newly extended statute of limitations to several forms of intentional sexual exploitation designed to target the child pornography industry, as set forth in N.J.S.A. 2A:30B-3. These forms of conduct include permitting, enticing or coercing a child to engage in a prohibited sexual act; photographing or filming a child in a prohibited sexual act or simulation of such an act; and knowingly receiving child pornography with intent to disseminate it by various means.
Third, the proposed law applies the newly extended statute of limitations to suits filed against “active” and “passive” abusers, as discussed in case law construing N.J.S.A. 2A:61B-1. An “active” abuser is a person who inflicted the abuse. A “passive” abuser is a parent, foster parent, guardian or other person standing in loco parentis who knowingly permits or acquiesces to the abuse perpetrated by an active abuser.
Finally, the proposed law creates a carve-out for the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, such that public entities would be stripped of immunity from lawsuits asserting claims of sexual abuse, and could be held liable as if they were private organizations.
The bill is now headed to the New Jersey Assembly for a vote on March 25. If approved, it will then be submitted to New Jersey Governor Phil Murphy, who has expressed public support for the proposed legislation and has vowed to sign it into law.
The proposed New Jersey law comes on the heels of the New York state legislature’s passage of the Child Victims Act in February 2019. The New York Child Victims Act, like the proposed New Jersey law, enables sexual abuse victims to file sexual abuse lawsuits up to 55 years of age. Unlike the proposed New Jersey law, however, the New York law provides a one-time “grace period” of only one year, during which previously barred claims may be brought. Similar legislation was considered by Pennsylvania, but, last October, the Pennsylvania’s Senate was unable to pass a compromise bill that would have allowed a temporary reprieve in the statute of limitations to allow victims to sue their attackers, but not the institutions that may have covered up the abuse. Pennsylvania’s current statute of limitations allows an adult victim to pursue a civil action within two years of the abuse and a minor victim to pursue an action within 12 years of the victim’s 18th birthday.
If passed, the New Jersey law could cause a flood of decades-old sexual abuse claims to be filed. Accused individuals and entities must be prepared to navigate an evidentiary minefield and defend themselves in lawsuits where important witnesses may have died, crucial documents may no longer exist, and other forms of exculpatory or other evidence may no longer be available. The proposed law would therefore significantly increase the potential sexual abuse liability exposure of individuals and businesses in New Jersey — especially nonprofit organizations and affiliated individuals — and represents a substantial departure from currently established law. At a minimum, entities that may be subject to the new law should begin to understand the history of their insurance coverage and retain old insurance policies in the event a claim arises.
Angelo A. Stio, III is a partner and a vice chair of Pepper Hamilton’s Trial and Dispute Resolution Practice Group. Kristin H. Jones is a partner in Pepper Hamilton’s White Collar Litigation and Investigations Practice Group. Jason J. Moreira is an associate in the Trial and Dispute Resolution Practice Group. Mr. Stio, Ms. Jones and Mr. Moreira routinely represent higher education institutions in matters involving allegations of sexual assault and sexual misconduct.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.