The Laws That Should Protect Our Children
Current Civil SOL in a nutshell
SOL vs. perp: None SOL vs. employer: None
Majority Tolling: √ Age 18 Discovery Tolling: √ Narrow
- 14 Me. Rev. Stat. § 752-C (1) NO LIMITATION. Actions based upon sexual acts toward minors may be commenced at any time.
a. Guptill v. Martin, 228 F.R.D. 62, 64 (D. Me. 2005) (752-C’s removal of SOL would theoretically apply to IIED and negligent supervision claims as it applies to “any claims related to any sexual abuse,” but cannot be applied retroactively to claims already time-barred in 1991).
- Discovery, yes, narrow.
a. McAfee v. Cole, 637 A.2d 463, 466 (Me. 1994) (“…[T]he time the person discovers or reasonably should have discovered the harm”)
i. (NOTE: “harm” is used by diff’t states to mean both/either injury or appreciation of causation—it must always be contextualized as can mean liberal or narrow discovery.
b. Nuccio v. Nuccio, 673 A.2d 1331, 1335 (Me. 1996) (noting that if applicable, discovery rule would only toll until a victim with repressed memories “discovered the abuse on regaining his memory”).
- Majority, yes.
a. 14 Me. Rev. Stat. §853. Persons under disability may bring action when disability None (“If a person entitled to bring any of the actions under sections 752 to 754, including section 752-C, and under sections 851 and 852 and Title 24, section 2902 and, until July 1, 2017, section 2902-B is a minor, mentally ill, imprisoned or without the limits of the United States when the cause of action accrues, the action may be brought within the times limited herein after the disability is None.”)
Current Criminal SOL in a nutshell
None for victims under age 16
3-6 years for other offenses
None for most crimes against victims under age 16.
17-A Maine Rev. Stat. § 8 (1). +8 years for unlawful sexual contact or gross sexual assault where victim is age 16 or over. 17-A M.R.S. § 8 (2-A).
17-A M.R.S. § 8 (1) (“It is a defense that prosecution was commenced after the expiration of the applicable period of limitations provided in this section; provided that a prosecution for murder or criminal homicide in the first or 2nd degree, or, if the victim had not attained the age of 16 years at the time of the crime, a prosecution for: incest; unlawful sexual contact; sexual abuse of a minor; rape or gross sexual assault, formerly denominated as gross sexual misconduct, may be commenced at any time.”)
17-A M.R.S. § 8 (2). (“Except as provided in subsection 2-A, prosecutions for crimes other than murder or criminal homicide in the first or 2nd degree, or, if the victim had not attained the age of 16 years at the time of the crime, prosecutions for: incest; unlawful sexual contact; sexual abuse of a minor; rape or gross sexual assault, formerly denominated as gross sexual misconduct, are subject to the following periods of limitations:
17-A M.R.S. § 8 A. A prosecution for a Class A, Class B or Class C crime must be commenced within 6 years after it is committed; and
17-A M.R.S. § 8 B. A prosecution for a Class D or Class E crime must be commenced within 3 years after it is committed.
17-A M.R.S. § 8 2-A. A prosecution for a Class A, Class B or Class C crime involving unlawful sexual contact or gross sexual assault must be commenced within 8 years after it is committed.”)
Age of Majority / Age of Consent / Age of Marriage
Age of Majority: 18. See, Me. Rev. Stat. Ann. tit. 1, § 73. Age of Consent: 16. See, Me. Rev. Stat. Ann. tit. 17-a, § 254.
Age of Marriage with Parental Consent: 16 with judicial consent. Age of Marriage without Parental Consent: 18. See, Me. Rev. Stat. Ann. tit. 19-A, § 652.
Medical Neglect Statute
CIVIL MEDICAL NEGLECT STATUTE
Treatment not considered abuse or neglect. Under subchapters I to VII, a child shall not be considered to be abused or neg¬lected, in jeopardy of health or welfare or in danger of serious harm solely because treatment is by spiri¬tual means by an accredited practitioner of a recog¬nized religious organization.
Treatment to be considered if requested. When medical treatment is authorized under this chapter, treatment by spiritual means by an accredited practitioner of a recognized religious organization may also be considered if requested by the child or his parent. Maine Revised Statutes Title 22, Ch. 1071, Subchap. 1 §4010
CRIMINAL MEDICAL NEGLECT STATUTE
MAINE defense to child endangerment A person who in good faith provides treatment for a child or dependent person by spiritual means through prayer may not for that reason alone be deemed to have knowingly endangered the welfare of that child or dependent person. Maine Revised Statutes title 17A §557
Religous Liberty Statute
Religious liberty statute that could put children at risk
Pending Religion Bill
An Act To Protect Religious Freedom
Be it enacted by the People of the State of Maine as follows: Sec. 1. 1 MRSA c. 33 is enacted to read:
PRESERVATION OF RELIGIOUS FREEDOM ACT
§ 2701. Short title This chapter may be known and cited as “the Preservation of Religious Freedom Act.”
§ 2702. Definitions As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings. Read More Burden. “Burden,” with respect to an exercise of governmental authority, means to directly or indirectly do any of the following: Constrain or inhibit conduct or expression mandated by a person’s sincerely held religious tenet or belief; Significantly curtail a person’s ability to express adherence to the person’s religious faith; Deny a person a reasonable opportunity to engage in activities that are fundamental to the person’s religion; Compel conduct or expression that violates a tenet or belief of a person’s religious faith; or Withhold benefits from or assess penalties against a person or exclude a person from programs or access to facilities because of the person’s religion or religious belief. Compelling governmental interest. “Compelling governmental interest” means the interest of a government to protect the best interests of a child or the health, safety or welfare of a child. Demonstrates. “Demonstrates” means supports a position with evidence and persuasion. Exercise of religion. “Exercise of religion” means the practice or observance of religion under the United States Constitution, Amendment I and the Constitution of Maine and includes acting or refusing to act in a manner substantially motivated by a sincerely held religious belief, whether or not the practice or observance is compulsory or a central part or central requirement of the person’s religious belief. Fraudulent claim. “Fraudulent claim” means a claim that is dishonest in fact or that is made principally for a patently improper purpose, such as to harass an opposing party in a court action. Frivolous claim. “Frivolous claim” means a claim that lacks merit under existing law and cannot be supported by a good faith argument for the extension, modification or reversal of existing law. Government. “Government” means any of the following: A board, commission, court, department, agency, special district, authority or other entity of the State; A political subdivision of the State, including a county, municipality, school board, sheriff, public board, institution, district or corporation; Any other public or governmental body of any kind that is not a state agency, municipality or political subdivision; and An official or other person acting under color of law. Person. “Person” means an individual, corporate body or religious organization. Religious organization. “Religious organization” means a church, association of churches or other religious order, body or institution that qualifies for exemption from taxation under Section 501(c)(3) or 501(d) of the United States Internal Revenue Code of 1986.
§ 2703. Exercise of religion protected A government may not burden a person’s exercise of religion, even if the burden results from a facially neutral law or rule or a law or rule of general applicability, unless the government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering the compelling governmental interest.
§ 2704. Action in court Action in court. A person whose exercise of religion is being, has been or is likely to be burdened in violation of this chapter may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief under subsection 5. Notice. Except as provided in subsection 3, at least 30 days prior to bringing an action under this section, a person must give written notice to the government burdening the person by certified mail, return receipt requested, informing the government of the following: That the person’s exercise of religion is being, has been or is likely to be burdened by an exercise of the authority of the government; A description of the act or refusal to act by the government that is burdening, has burdened or is likely to burden the person’s exercise of religion; and The manner in which the exercise of governmental authority burdens the person’s exercise of religion. Action without notice. A person who is burdened by a government may bring an action in court under this section to seek relief under subsection 5 without providing notice under subsection 2 if: The threat of the exercise of governmental authority to burden the person’s exercise of religion is imminent; The person was not informed and did not otherwise have knowledge of the exercise of governmental authority that is the subject of the action in time to reasonably provide notice under subsection 2; Giving notice under subsection 2 would delay an action to the extent that the action would be dismissed as untimely; or The claim underlying the action is asserted as a counterclaim, objection or defense in a pending judicial proceeding. Remediation. If a government remedies a burden prior to the expiration of the 30-day notice period under subsection 2, the person for whom the burden was remedied may not bring an action under this section for that burden or shall dismiss an action on that burden if the action is pending. Remedies. A court may grant appropriate relief to a prevailing party bringing a claim or defense under subsection 1, not including punitive or exemplary damages, without regard to whether the action is brought in the name of the State or by any other person. Relief under this section may include but need not be limited to: Injunctive relief, including a protective order, a writ of mandamus or a prohibition or declaratory relief; or Actual damages, reasonable attorney’s fees and costs. Fraudulent or frivolous claims. A court that finds that a person has filed a fraudulent claim or frivolous claim under subsection 1 may assess against the person the court costs of the government that is party to the action and may enjoin the person from filing further claims under this section without leave of the court. § 2705. Exceptions; authorizations; application Exceptions. A rule adopted by a correctional facility to protect the safety and security of staff, visitors or incarcerated persons of the correctional facility or to maintain order or discipline in the correctional facility is exempt from this chapter. Authorizations. This chapter does not authorize: A person to cause physical injury to another person; A marital or other relationship that would violate the Constitution of Maine; or 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. Applicability. This chapter applies to all state laws, rules and local ordinances and the implementation of those laws, rules and ordinances, whether statutory or otherwise and whether enacted or adopted before, on or after the effective date of this chapter.
§ 2706. Construction The protections of this chapter are in addition to the protections granted by federal law, the United States Constitution and the Constitution of Maine. This chapter does not affect the grant of benefits or tax exemptions to a religious organization. This chapter does not affect, interpret or in any way address those portions of the United States Constitution, Amendment I or the Constitution of Maine that prohibit laws respecting the establishment of religion. This chapter does not create or preclude a right of a religious organization to receive funding or other assistance from a government or of a person to receive government funding for a religious activity.
SUMMARY This bill creates the Preservation of Religious Freedom Act, which allows a person whose right to exercise the person’s religion is burdened by a government law or exercise of authority to bring an action in court seeking equitable or monetary damages unless the government remedies the burden or shows that the law or exercise of authority is the least restrictive means of furthering a compelling governmental interest.