The Laws That Should Protect Our Children
Current Civil SOL in a nutshell
SOL vs. perp: +10 years from majority = Age 28 SOL vs. employer: +10 years from majority = Age 28
Majority Tolling: √ Age 18 Discovery Tolling: √ Narrow
Current Criminal SOL in a nutshell
Age 48 (30 years from victim’s 18th birthday) for sexual battery, second degree sexual battery, oral sexual battery, human trafficking, trafficking of children for sexual purposes, felony carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, prostitution of persons under eighteen, enticing persons into prostitution, crime against nature, aggravated crime against nature, crime against nature by solicitation involving victim under 17 (crimes after 8/15/05)
Age 48 for child pornography/trafficking (effective 8/1/12)
Age 28 (crimes before 8/15/05), previously was 10 years from age 18.
Age of Majority / Age of Consent / Age of Marriage
Age of Majority: 18. See, La. Civ. Code Ann. art. 29.
Age of Consent: 17. See, La. Civ. Code Ann. § 14:80.
Age of Marriage with Parental Consent: 16 (under 16 with judicial consent).
Age of Marriage without Parental Consent: 18.
See, La. Child Code § 1545.
Medical Neglect Statute
CIVIL MEDICAL NEGLECT STATUTE
Whenever, in lieu of medical care, a child is being provided treatment in accordance with the tenets of a well-recognized religious method of healing which has a reasonable, proven record of success, the child shall not, for that reason alone, be considered to be neglected or maltreated. Louisiana Children’s Code Article 603(18)
“Member of the clergy” is any priest, rabbi, duly ordained clerical deacon or minister, Christian Science practitioner, or other similarly situated functionary of a religious organization, except that he is not required to report a confidential communication, as defined in Code of Evidence Article 511, from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential. In that instance, he shall encourage that person to report the allegations to the appropriate authorities in accordance with Article 610. Louisiana Children’s Code Article 603(17)(c)
Whenever, in lieu of medical care, a child is being provided treatment in accordance with the tenets of a well-recognized religious method of healing which has a reasonable, proven record of success, the child shall not, for that reason alone, be considered to be neglected or abused. Disagreement by the parent regarding the need for medical care shall not, by itself, be grounds for termination of parental rights. Louisiana Children’s Code Article 1003(10) (on termination of parental rights)
CRIMINAL MEDICAL NEGLECT STATUTE
LOUISIANA defense to criminal neglect, cruelty to children and manslaughter; also privilege The providing of treatment by a parent or tutor in accordance with the tenets of a well-recognized religious method of healing, in lieu of medical treatment, shall not for that reason alone be considered to be criminally negligent mistreatment or neglect of a child. The provisions of this section shall be an affirmative defense to prosecution for the offense of cruelty to juveniles. Louisiana Revised Statutes §14:93(b)
In any proceeding concerning the abuse or neglect or sexual abuse of a child or the cause of such condition, evidence may not be excluded on any ground of privilege, except in the case of communications between an attorney and his client or be¬tween a priest, rabbi, duly ordained minister or Christian Science practitioner and his communicant. Louisiana Revised Statutes §14:403(b)(5)
Note: The manslaughter statute at La. Rev. Statutes §14:31 requires the prosecu-tor to prove that the defendant was engaged in perpetration of a separate felony. With the religious defenses to neglect and cruelty appearing to insulate parents from those charges, the prosecutor would not be able to prove manslaughter either.
Religous Liberty Statute
Religious liberty statute that could put children at risk
Current Law: LA. R.S. 13:5231-5242 (2010)
Enacted: June 30, 2010
§ 13:5231. SHORT TITLE This part shall be known as and may be cited as the “Preservation of Religious Freedom Act”.
§ 13:5232. LEGISLATIVE FINDINGS The legislature finds and declares that: A. Free exercise of religion is a fundamental right of the highest order in this state. B. In 1974, this legislature and the people of Louisiana chose to adopt the exact language found in the First Amendment of the Constitution of the United States of America regarding religious free exercise as Article 1, Section 8 of the Constitution of Louisiana. C. At the time of adoption of Article 1, Section 8 of the Constitution of Louisiana, the United States Supreme Court interpreted the First Amendment of the Constitution of the United States of America to provide the same level of protection for an action of the government that explicitly burdened religious exercise as for an action that indirectly burdened religious exercise through its effect. In both instances, the government had to show that it had a compelling interest in taking a particular action and that it was taking the action in a way that was least restrictive of a person’s right to freely exercise his religious beliefs. This rule was set forth in the case of Sherbert v. Verner, 374 U.S. 398 (1963),among other cases. D. It was the intent of the legislature and the people of Louisiana in 1974 to provide that level of protection to its citizens. E. In 1990, the United States Supreme Court, in Employment Division v. Smith, 494 U.S. 872 (1990), reduced the protection available to persons in the exercise of their religious beliefs where a law was facially neutral or generally applicable by holding that the government need only give a rational basis for the action and need not supply the least restrictive means to achieve its goal. F. The courts of Louisiana have not adopted the standard set forth in Employment Division v. Smith. It was and continues to be the intent of this state that the protections afforded by the Sherbert case apply in Louisiana. Read More § 13:5233. FREE EXERCISE OF RELIGION PROTECTED Government shall not substantially burden a person’s exercise of religion, even if the burden results from a facially neutral rule or a rule of general applicability, unless it demonstrates that application of the burden to the person is both: (1) In furtherance of a compelling governmental interest. (2) The least restrictive means of furthering that compelling governmental interest.
§ 13:5234. DEFINITIONS In this Part, unless the context otherwise requires: (1) “A person” includes an individual and also includes a church, association of churches or other religious order, body or institution which qualifies for exemption from taxation under Section 501(c)(3) or (d) of the Internal Revenue Code of 1986 (Public law 99-514, 26 U.S.C. Section 501). (2) “Burden” means that the government, directly or indirectly, does any of the following: (a) Constrains or inhibits conduct or expression mandated by a person’s sincerely held religious tenet or belief. (b) Significantly curtails a person’s ability to express adherence to the person’s religious faith. (c) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person’s religion. (d) Compels conduct or expression which violates a tenet or belief of a person’s religious faith. (3) “Compelling state interest” includes the interest of the state to protect the best interest of a child and the health, safety, and welfare of a child. (4) “Demonstrates” means meeting the burdens of going forward with evidence and persuasion. (5) “Exercise of religion” means the practice or observance of religion under Article 1, Section 8, of the Constitution of Louisiana and the First Amendment of the Constitution of the United States of America and includes the ability to act or refuse to act in a manner substantially motivated by a sincerely-held religious belief, whether or not the exercise is compulsory or a central part or central requirement of the person’s religious belief. (6) “Government” or “governmental agency” means any of the following: (a) Any board, commission, court, department, agency, special district, authority, or other entity of the state. (b) Any political subdivision of this state including any parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, court, or authority. (c) Any other public or governmental body of any kind which is not a state agency. (d) Any official or other person acting under color of law.
§ 13:5235. EXCEPTIONS A. Nothing in this Part shall be construed to allow any person to cause physical injury to another person. B. The standards of a compelling governmental interest, as set forth in R.S. 13:5233, shall be satisfied by any penological regulation or rule which is established by a jail or correctional facility to protect the safety and security of incarcerated persons, or staff of, or visitors to the jail or correctional facility, or to maintain order or discipline in the jail or correctional facility. C. Nothing in this Part shall be construed to authorize any relationship, marital or otherwise, that would violate Article XII, Section 15 of the Constitution of Louisiana. D. Nothing in this Part shall be construed to authorize the enforcement of any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States. § 13:5236. APPLICABILITY A. This Part applies to all state laws and local ordinances and the implementation of those laws and ordinances, whether statutory or otherwise and whether enacted or adopted before, on or after the effective date of this Part. B. Nothing in this Part shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity. § 13:5237. REMEDIES Subject to the provisions of R.S. 13:5240(C), a person whose religious exercise is being, has been, or is likely to be burdened in violation of this Part may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief, not to include punitive or exemplary damages, without regard to whether the proceeding is brought in the name of the state or by any other person, including but not limited to: (1) Injunctive relief, protective order, writ of mandamus or prohibition, or declaratory relief to prevent any violation of these provisions. (2) The actual damages, reasonable attorney fees, and costs.
§ 13:5238. NOTICE A. A person shall not bring an action in court to assert a claim under this Part unless, at least thirty days prior to bringing the action, the person gives written notice to the person burdening their free exercise, and any governmental agency authorizing such act, by certified mail, return receipt requested, informing the person and the agency of all of the following: (1) The person’s free exercise of religion is being, has been, or is about to be substantially burdened by an exercise of the authority of the governmental agency. (2) A description of the act or refusal to act which is burdening, has burdened or is about to burden the person’s free exercise of religion. (3) The manner in which the exercise of the governmental authority burdens the person’s free exercise of religion. B. Notwithstanding the requirements of Subsection A of this Section, a person may bring an action in court without providing the notice required by Subsection A of this Section if any of the following occur: (1) The exercise of governmental authority which threatens to substantially burden the person’s free exercise of religion is imminent. (2) The person was not informed and did not otherwise have knowledge of the exercise of the governmental authority in time to reasonably provide notice. (3) The provision of the notice would delay an action to the extent that the action would be dismissed as untimely. (4) The claim is asserted as a counterclaim, objection, or defense in a pending proceeding.
§ 13:5239. REMEDIATION Prior to the expiration of the thirty-day period referred to in R.S. 13:5238, an agency which receives notice in accordance with R.S. 13:5238 may remedy the substantial burden on the person’s free exercise of religion. A person with respect to whom a substantial burden on the person’s free exercise of religion has been cured may not bring an action under this Section or shall dismiss such action if it is already pending.
§ 13:5240. LIMITATIONS AND PROCEDURES A. Except as stated in Subsection B of this Section, and except as to objections, protective orders or writs of mandamus or prohibition, the provisions of the Louisiana Governmental Claims Act, R.S. 13:5101 through 5108, as applicable, shall apply to an action under this Act. B. A person shall bring an action to assert a claim for damages under this Part not later than one year after the date the person knew or should have known of the substantial burden on the person’s free exercise of religion. Mailing notice under R.S. 13:5238 shall toll the one-year period until the seventy-fifth day after the date on which the notice is mailed. C. Notwithstanding any other provision of law to the contrary, including R.S. 13:5238 and 5239, the provisions of the Corrections Administrative Remedy Procedure, as provided in R.S. 15:1171 through 1179, and the Prison Litigation Reform Act, as provided in R.S. 15:1181through 1191, as applicable, shall apply to any action under this Act.
§ 13:5241. FRAUDULENT OR FRIVOLOUS CLAIMS A. Any person found by a court of competent jurisdiction to have abused the protection of this Part by filing a frivolous or fraudulent claim may be assessed the court costs of the governmental entity and may be enjoined from filing further claims under this Part without leave of the court. B. A “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. C. A “frivolous claim” means a claim which lacks merit under existing law and which cannot be supported by a good faith argument for the extension, modification, or reversal of existing law.
§ 13:5242. CONSTRUCTION OF PART A. The protections of this Part are in addition to the protections granted by federal law and the state and federal constitutions. B. This Part shall not affect the grant of benefits or tax exemptions to religious organizations. C. This Part shall not affect, interpret, or in any way address that portion of the First Amendment to the Constitution of the United States of America or Article 1, Section 8 of the Constitution of Louisiana that prohibits laws respecting the establishment of religion.