The Laws That Should Protect Our Children
Current Civil SOL in a nutshell
SOL vs. perp: +3 years from majority = Age 21 SOL vs. employer: +2 years from accrual
Majority Tolling: √ Age 18 Discovery Tolling: √ Liberal (+3 years)
SOL: +3 years from majority or from liberal discovery, whichever is later.
- Kan.Stat.Ann. § 60-523 (a) “No action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced more than three years after the date the person attains 18 years of age or more than three years from the date the person discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse, whichever occurs later.”
a. Cosgrove v. Kan. Dep’t of Soc. & Rehab. Servs., 332 Fed. Appx. 463, 2009 U.S. App. LEXIS 12110 (10th Cir. Kan. 2009) (Applying § 60-523(a) to all plaintiff’s claims versus supervisory agency, its employees and perpetrator foster parents).
- Discovery, yes, liberal, via statute
a. Kan.Stat.Ann. § 60-523 (c) “Discovery that the injury or illness was caused by childhood sexual abuse shall not be deemed to have occurred solely by virtue of the person’s awareness, knowledge or memory of the acts of abuse. The person need not establish which act in a series of continuing sexual abuse incidents caused the injury or illness complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is a part of a common scheme or plan of sexual abuse.”
b. Kan.Stat.Ann. § 60-523 (a) (“from the date the person discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse”)
- Majority, yes. Kan.Stat.Ann. § 60-523 (a) (“after the date the person attains 18 years…”)
Current Criminal SOL in a nutshell
None for rape and aggravated criminal sodomy. Victim’s age 28 or +1 year from conclusively established DNA, whichever is later. APPLICATION: effective April 2013
None for rape and aggravated criminal sodomy. K.S.A. § 21-5107 (a); Victim’s age 28 or +1 year from conclusively established DNA, whichever is later. K.S.A. § 21-5107 (c)(1)-(2) ; K.S.A. § 21-5107 (e)(6)(A)-(D) K.S.A. § 21-5107 (a) A prosecution for rape, aggravated criminal sodomy, murder, terrorism or illegal use of weapons of mass destruction may be commenced at any time.
K.S.A. § 21-5107 (c)(1)-(2) Except as provided in subsection (e), a prosecution for a sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto: (1) When the victim is 18 years of age or older shall be commenced within 10 years or one year from the date on which the identity of the suspect is conclusively established by DNA testing, whichever is later; or (2) when the victim is under 18 years of age shall be commenced within 10 years of the date the victim turns 18 years of age or one year from the date on which the identity of the suspect is conclusively established by DNA testing, whichever is later.
K.S.A. § 21-5107 (d) Except as provided by subsection (e), a prosecution for any crime, as defined in K.S.A. 2013 Supp. 21-5102, and amendments thereto, not governed by subsection (a), (b) or (c) shall be commenced within five years after it is committed.
K.S.A. § 21-5107 (e)(6)(A)-(D) (“The period within which a prosecution shall be commenced shall not include any period in which: (6) whether the fact of the crime is concealed by the active act or conduct of the accused, there is substantially competent evidence to believe two or more of the following factors are present: (A) The victim was a child under 15 years of age at the time of the crime; (B) the victim was of such age or intelligence that the victim was unable to determine that the acts constituted a crime; (C) the victim was prevented by a parent or other legal authority from making known to law enforcement authorities the fact of the crime whether or not the parent or other legal authority is the accused; and (D) there is substantially competent expert testimony indicating the victim psychologically repressed such witness’ memory of the fact of the crime, and in the expert’s professional opinion the recall of such memory is accurate and free of undue manipulation, and substantial corroborating evidence can be produced in support of the allegations contained in the complaint or information but in no event may a prosecution be commenced as provided in subsection (e)(6) later than the date the victim turns 28 years of age. Corroborating evidence may include, but is not limited to, evidence the defendant committed similar acts against other persons or evidence of contemporaneous physical manifestations of the crime.
Age of Majority / Age of Consent / Age of Marriage
Age of Majority: 18, unless you are married after 16 but before 18. See, Kan. Stat. Ann. § 38-101.
Age of Consent: 16. See, Kan. Stat. Ann. § 21-3502.
Age of Marriage with Parental Consent: 16 (under 16 with judicial consent).
Age of Marriage without Parental Consent: 18.
See, Kan. Stat. Ann. § 23-2505.
Medical Neglect Statute
CIVIL MEDICAL NEGLECT STATUTE
A parent legitimately practicing religious beliefs who does not provide specified medical treatment for a child because of religious beliefs shall not for that reason be considered a negligent parent…. Kansas Code §38-1502(cc)3
CRIMINAL MEDICAL NEGLECT STATUTE
KANSAS defense to misdemeanor child endangerment Nothing under the definition of “child endangerment” in this section shall be construed to mean a child is endangered for the sole reason his/her parent or guardian, in good faith, selects and depends upon spiritual means through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of such child. Kansas Statutes §21-3608(1)( c)
Religous Liberty Statute
Religious liberty statute that could put children at risk
Kansas Preservation of Religious Freedom Act (Effective July 1, 2013)
Section 1. As used in the Kansas preservation of religious freedom act: (a) ‘‘Burden’’ means any government action that directly or indirectly constrains, inhibits, curtails or denies the exercise of religion by any person or compels any action contrary to a person’s exercise of religion, and includes, but is not limited to, withholding benefits, assessing criminal, civil or administrative penalties, or exclusion from government programs or access to government facilities. (b) ‘‘Compelling governmental interest’’ includes, but is not limited to, protecting the welfare of a child from abuse and neglect as defined by state law. (c) ‘‘Exercise of religion’’ means the practice or observance of religion under section 7 of the bill of rights of the constitution of the state of Kansas and the free exercise clause of the first amendment to the constitution of the United States and includes the right to act or refuse to act in a manner substantially motivated by a sincerely-held religious tenet or belief, whether or not the exercise is compulsory or a central part or requirement of the person’s religious tenets or beliefs. (d) ‘‘Fraudulent claim’’ means a claim that is dishonest in fact or that is made principally for a patently improper purpose, such as to harass the opposing party. (e) ‘‘Government’’ includes the executive, legislative and judicial branches and any and all agencies, boards, commissions, departments, districts, authorities or other entities, subdivisions or parts whatsoever of state and local government as well as any person acting under color of law. (f) ‘‘Person’’ means any legal person or entity under the laws of the state of Kansas and the laws of the United States.
(a) Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person:
Is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. (b) A person whose exercise of religion has been burdened, or is substantially likely to be burdened, in violation of this act, may assert such violation as a claim or defense in a judicial proceeding. A court may grant appropriate relief as may be necessary including:
Injunctive relief; protective order; writ of mandamus or prohibition; declaratory relief; actual damages; or costs and attorney fees determined by the court. (c) Any person found by a court of competent jurisdiction to have abused the protection of this act by making a fraudulent claim may be enjoined from filing further claims under this act without leave of court.
In determining whether a compelling governmental interest is sufficient to justify a substantial burden on a person’s exercise of religion pursuant to section 2, and amendments thereto, only those interests of the highest order and not otherwise served can overbalance the fundamental right to the exercise of religion preserved by this act. In order to prevail under the standard established pursuant to subsection (a) of section 2, and amendments thereto, the government shall demonstrate that such standard is satisfied through application of the asserted violation of this act to the particular claimant whose sincere exercise of religion has been burdened. The religious liberty interest protected by this act is an independent liberty that occupies a preferred position, and no encroachments upon this liberty shall be permitted, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order.
(a) Nothing in this act shall be construed to:
(1) Impair the fundamental right of every parent to control the care and custody of such parent’s minor children, including, but not limitedHOUSE BILL No. 2203—page 2 to, control over education, discipline, religious and moral instruction,mhealth, medical care, welfare, place of habitation, counseling and psychological and emotional well-being of such minor children as set forth in the laws and constitution of the state of Kansas and of the United States; authorize any relationship, marital or otherwise, that would violate section 16 of article 15 of the constitution of the state of Kansas; authorize the application or enforcement, in the courts of the state of Kansas, of any law, rule, code or legal system other than the laws of the state of Kansas and of the United States; limit any religious organization from receiving any funding or other assistance from a government, or of any person to receive government funding for a religious activity to the extent permitted by the laws and constitution of the state of Kansas and of the United States; or protect actions or decisions to end the life of any adult or child, born or unborn. (b) Except as provided in subsection (c), this act applies to all government action including, but not limited to, all state and local laws, ordinances, rules, regulations and policies and to their implementation, whether enacted or adopted before, on or after the effective date of this act.
(c) This act shall not apply to penological rules and regulations, conditions or policies established by a jail, correctional institution, juvenile correctional facility or juvenile detention facility or an entity supervising offenders in the community that are reasonably related to the safety and security of incarcerated persons, staff, visitors, supervised offenders or the public, or to maintenance of good order and discipline in any jail, correctional institution, juvenile correctional facility or juvenile detention facility.
Sec. 5. Sections 1 through 5, and amendments thereto, shall be known and may be cited as the Kansas preservation of religious freedom act.
Sec. 6. This act shall take effect and be in force from and after its publication in the statute book.
View PDF: H.B. 2203 as enrolled (law as of July 1, 2013)
View Legislative Summary (PDF)