Bill Summary – FastDemocracy

66th Legislature                                                                                         HB0640.01
                                             HOUSE BILL NO. 640
                                       INTRODUCED BY S. MORIGEAU
                    BY REQUEST OF THE HOUSE JUDICIARY STANDING COMMITTEE
 4
 5
 A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING LAWS RELATED TO CHILDHOOD
 SEXUAL ABUSE; REVISING THE STATUTE OF LIMITATIONS FOR CIVIL LIABILITY FOR CHILDHOOD
 SEXUAL ABUSE; REVISING THE TYPES OF CRIMES THAT CAN BE CONSIDERED CHILDHOOD SEXUAL
 ABUSE FOR THE PURPOSES OF CIVIL LIABILITY; REVISING THE DEFINITIONS OF SEXUAL ABUSE AND
 SEXUAL EXPLOITATION FOR THE PURPOSES OF CHILD ABUSE AND NEGLECT PROCEEDINGS;
 REVISING LAWS RELATED TO REPORTING OF SUSPECTED CHILD SEXUAL ABUSE OR SEXUAL
 EXPLOITATION; INCLUDING DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES EMPLOYEES
 AS MANDATORY REPORTERS OF CHILD ABUSE AND NEGLECT; REQUIRING COUNTY ATTORNEYS AND
 THE ATTORNEY GENERAL TO PROVIDE CERTAIN REPORTS; REVISING LAWS RELATED TO RETENTION
 AND DISCLOSURE OF CONFIDENTIAL RECORDS; PROVIDING A FELONY PENALTY FOR FAILURE TO
 REPORT CHILD SEXUAL ABUSE OR SEXUAL EXPLOITATION; REVISING THE CRIMINAL STATUTE OF
 LIMITATIONS FOR SEX OFFENSES INVOLVING VICTIMS WHO WERE CHILDREN AT THE TIME OF THE
 OFFENSE; AMENDING SECTIONS 27-2-204, 27-2-216, 41-3-102, 41-3-201, 41-3-202, 41-3-205, 41-3-207, AND
 45-1-205, MCA; REPEALING SECTION 27-2-217, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE
 AND APPLICABILITY DATES."
21
         WHEREAS, childhood sexual abuse is an epidemic in Montana, and there are many instances in recent
 years of victims of childhood sexual abuse being unable to seek criminal or civil justice as the result of short
 statute of limitations windows in Montana law; and
         WHEREAS, the sexual abuse of children is despicable conduct that must be reported, investigated, and
 prosecuted to create specific deterrence; and
         WHEREAS, the State of Montana must ensure appropriate action when mandatory reporters and others
 report childhood sexual abuse; and
         WHEREAS, regardless of the location of the crime, to protect Montana's children, the Department of
 Public Health and Human Services and the Department of Justice, working closely with local law enforcement
                                                          -1-                     Authorized Print Version - HB 640
66th Legislature                                                                                             HB0640.01
 and prosecutors, must respond to allegations of sexual abuse with effective investigations and, when viable,
 effective prosecutions; and
         WHEREAS, childhood sexual abuse causes lifelong trauma to survivors of the same; and
         WHEREAS, the average reporting age of victims of childhood sexual abuse is 52 years old, requiring the
 Legislature to take a meaningful look into the time periods presently allowed in Montana law to pursue criminal
 and civil court action; and
         WHEREAS, upon review, the Legislature has determined that the current truncated time periods to bring
 criminal prosecutions and civil litigation related to allegations of sexual abuse are not in line with mental health
 science as to reporting of childhood sexual abuse, are too narrow, and should be extended.
10
 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
12
         NEW SECTION. Section 1. County attorney certification -- retention of records -- quarterly reports
 -- report to legislature. (1) Upon receipt of a report from the department, as required in 41-3-202, that includes
 an allegation of sexual abuse of a child or sexual exploitation of a child, the county attorney shall certify to the
 person who initially reported the information that the county attorney received the report. The certification must
 include the date the report was received and the age and gender of the alleged victim. If the report was
 anonymous, the county attorney shall provide the certification to the department.
         (2) The county attorney shall retain records relating to the report, including the certification, case notes,
 correspondence, evaluations, videotapes, and interviews, for 25 years.
         (3) Each county attorney shall report quarterly to the attorney general. The report must include:
         (a) the status of the investigation into each report from the department received by the county attorney
 pursuant to subsection (1); and
         (b) any exercise of prosecutorial discretion, including a decision to prosecute or to decline to prosecute
 the acts contained in each report.
         (4) The attorney general shall report to the law and justice interim committee each year by September
 1 and as provided in 5-11-210. The reports must:
         (a) include, for each prosecution initiated during the previous year for child sexual abuse or child sexual
 exploitation offenses, the name of the defendant, information regarding the result of the prosecution, and any
 sentence imposed by the court; and
                                                            -2-                      Authorized Print Version - HB 640
66th Legislature                                                                                              HB0640.01
         (b) provide information for each county regarding the status of the cases reported to the county attorney
 pursuant to 41-3-202(1)(b), including data on the total number of cases reported, the number of cases declined
 for prosecution, and the number of cases remaining under investigation.
 4
         Section 2. Section 27-2-204, MCA, is amended to read:
         "27-2-204. Tort actions -- general and personal injury. (1) Except as provided in 27-2-216 and
 27-2-217, the period prescribed for the commencement of an action upon a liability not founded upon an
 instrument in writing is within 3 years.
         (2) The period prescribed for the commencement of an action to recover damages for the death of one
 caused by the wrongful act or neglect of another is within 3 years, except when the wrongful death is the result
 of a homicide, in which case the period is within 10 years.
         (3) The period prescribed for the commencement of an action for libel, slander, assault, battery, false
 imprisonment, or seduction is within 2 years."
14
         Section 3. Section 27-2-216, MCA, is amended to read:
         "27-2-216. Tort actions -- childhood sexual abuse. (1) An Except as provided in subsection (3) or (4),
 an action based on intentional conduct brought by a person for recovery of damages for injury suffered as a result
 of childhood sexual abuse against the individual who committed the acts must be commenced not later than:
         (a) 3 years after before the victim of the act of childhood sexual abuse that is alleged to have caused
 the injury reaches 27 years of age; or
         (b) not later than 3 years after the plaintiff discovers or reasonably should have discovered that the injury
 was caused by the act of childhood sexual abuse.
         (2) It is not necessary for a plaintiff to establish which act, in a series of acts of childhood sexual abuse,
 caused the injury that is the subject of the suit. The plaintiff may compute the period referred to in subsection
 (1)(a) from the date of the last act by the same perpetrator.
         (3)(2) As used in this section, "childhood sexual abuse" means any act committed against a plaintiff who
 was less than 18 years of age at the time the act occurred and that would have been a violation of 45-5-502,
 45-5-503, 45-5-504, 45-5-507, 45-5-508, 45-5-602, 45-5-603, 45-5-625, 45-5-627, 45-5-704, 45-5-705, or prior
 similar laws in effect at the time the act occurred.
         (3) In an action for recovery of damages for liability against any entity that owed a duty of care to the
                                                             -3-                      Authorized Print Version - HB 640
66th Legislature                                                                                               HB0640.01
 plaintiff, where a wrongful or negligent act by an employee, officer, director, official, volunteer, representative, or
 agent of the entity was a legal cause of the childhood sexual abuse that resulted in the injury to the plaintiff, the
 action must be commenced:
          (a) before the victim of the act of childhood sexual abuse that is alleged to have caused the injury reaches
 27 years of age; or
          (b) not later than 3 years after the plaintiff discovers or reasonably should have discovered that the injury
 was caused by the act of childhood sexual abuse.
          (4) (a) A claim for damages described in subsection (3) that would otherwise be barred because the
 applicable statute of limitations has or had expired must be revived if the court concludes that the entity against
 whom the action is commenced, based upon documents or admissions by employees, officers, directors, officials,
 volunteers, representatives, or agents of the entity, knew, had reason to know, or was otherwise on notice of any
 unlawful sexual conduct by an employee, officer, director, official, volunteer, representative, or agent and failed
 to take reasonable steps to prevent future acts of unlawful sexual conduct.
          (b) A cause of action in which allegations described in subsection (4)(a) are made but that would
 otherwise be barred by the statute of limitations in subsection (3) may be commenced within 2 years of [the
 effective date of this act].
          (5) As used in subsection (4), "admissions" include:
          (a) a criminal conviction of an employee, officer, director, official, volunteer, representative, or agent of
 the entity for an offense of childhood sexual abuse;
          (b) a written statement;
          (c) a documented or recorded oral statement; or
          (d) statements made in:
          (i) a plea agreement or change of plea hearing;
          (ii) a trial; or
          (iii) a settlement agreement.
          (4)(6) The provisions of 27-2-401 apply to this section."
27
          Section 4. Section 41-3-102, MCA, is amended to read:
          "41-3-102. Definitions. As used in this chapter, the following definitions apply:
          (1) (a) "Abandon", "abandoned", and "abandonment" mean:
                                                              -4-                      Authorized Print Version - HB 640
66th Legislature                                                                                                HB0640.01
            (i) leaving a child under circumstances that make reasonable the belief that the parent does not intend
 to resume care of the child in the future;
            (ii) willfully surrendering physical custody for a period of 6 months and during that period not manifesting
 to the child and the person having physical custody of the child a firm intention to resume physical custody or to
 make permanent legal arrangements for the care of the child;
            (iii) that the parent is unknown and has been unknown for a period of 90 days and that reasonable efforts
 to identify and locate the parent have failed; or
            (iv) the voluntary surrender, as defined in 40-6-402, by a parent of a newborn who is no more than 30
 days old to an emergency services provider, as defined in 40-6-402.
            (b) The terms do not include the voluntary surrender of a child to the department solely because of
 parental inability to access publicly funded services.
            (2) "A person responsible for a child's welfare" means:
            (a) the child's parent, guardian, or foster parent or an adult who resides in the same home in which the
 child resides;
            (b) a person providing care in a day-care facility;
            (c) an employee of a public or private residential institution, facility, home, or agency; or
            (d) any other person responsible for the child's welfare in a residential setting.
            (3) "Abused or neglected" means the state or condition of a child who has suffered child abuse or
 neglect.
            (4) (a) "Adequate health care" means any medical care or nonmedical remedial health care recognized
 by an insurer licensed to provide disability insurance under Title 33, including the prevention of the withholding
 of medically indicated treatment or medically indicated psychological care permitted or authorized under state
 law.
            (b) This chapter may not be construed to require or justify a finding of child abuse or neglect for the sole
 reason that a parent or legal guardian, because of religious beliefs, does not provide adequate health care for
 a child. However, this chapter may not be construed to limit the administrative or judicial authority of the state to
 ensure that medical care is provided to the child when there is imminent substantial risk of serious harm to the
 child.
            (5) "Best interests of the child" means the physical, mental, and psychological conditions and needs of
 the child and any other factor considered by the court to be relevant to the child.
                                                               -5-                     Authorized Print Version - HB 640
66th Legislature                                                                                            HB0640.01
         (6) "Child" or "youth" means any person under 18 years of age.
         (7) (a) "Child abuse or neglect" means:
         (i) actual physical or psychological harm to a child;
         (ii) substantial risk of physical or psychological harm to a child; or
         (iii) abandonment.
         (b) (i) The term includes:
         (A) actual physical or psychological harm to a child or substantial risk of physical or psychological harm
 to a child by the acts or omissions of a person responsible for the child's welfare; or
         (B) exposing a child to the criminal distribution of dangerous drugs, as prohibited by 45-9-101, the
 criminal production or manufacture of dangerous drugs, as prohibited by 45-9-110, or the operation of an unlawful
 clandestine laboratory, as prohibited by 45-9-132.
         (ii) For the purposes of this subsection (7), "dangerous drugs" means the compounds and substances
 described as dangerous drugs in Schedules I through IV in Title 50, chapter 32, part 2.
         (c) In proceedings under this chapter in which the federal Indian Child Welfare Act is applicable, this term
 has the same meaning as "serious emotional or physical damage to the child" as used in 25 U.S.C. 1912(f).
         (d) The term does not include self-defense, defense of others, or action taken to prevent the child from
 self-harm that does not constitute physical or psychological harm to a child.
         (8) "Concurrent planning" means to work toward reunification of the child with the family while at the
 same time developing and implementing an alternative permanent plan.
         (9) "Department" means the department of public health and human services provided for in 2-15-2201.
         (10) "Family group decisionmaking meeting" means a meeting that involves family members in either
 developing treatment plans or making placement decisions, or both.
         (11) "Indian child" means any unmarried person who is under 18 years of age and who is either:
         (a) a member of an Indian tribe; or
         (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
         (12) "Indian child's tribe" means:
         (a) the Indian tribe in which an Indian child is a member or eligible for membership; or
         (b) in the case of an Indian child who is a member of or eligible for membership in more than one Indian
 tribe, the Indian tribe with which the Indian child has the more significant contacts.
         (13) "Indian custodian" means any Indian person who has legal custody of an Indian child under tribal
                                                             -6-                      Authorized Print Version - HB 640
66th Legislature                                                                                               HB0640.01
 law or custom or under state law or to whom temporary physical care, custody, and control have been transferred
 by the child's parent.
          (14) "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians
 recognized by:
          (a) the state of Montana; or
          (b) the United States secretary of the interior as being eligible for the services provided to Indians or
 because of the group's status as Indians, including any Alaskan native village as defined in federal law.
          (15) "Limited emancipation" means a status conferred on a youth by a court in accordance with 41-1-503
 under which the youth is entitled to exercise some but not all of the rights and responsibilities of a person who
 is 18 years of age or older.
          (16) "Parent" means a biological or adoptive parent or stepparent.
          (17) "Parent-child legal relationship" means the legal relationship that exists between a child and the
 child's birth or adoptive parents, as provided in Title 40, chapter 6, part 2, unless the relationship has been
 terminated by competent judicial decree as provided in 40-6-234, Title 42, or part 6 of this chapter.
          (18) "Permanent placement" means reunification of the child with the child's parent, adoption, placement
 with a legal guardian, placement with a fit and willing relative, or placement in another planned permanent living
 arrangement until the child reaches 18 years of age.
          (19) "Physical abuse" means an intentional act, an intentional omission, or gross negligence resulting
 in substantial ski