The Laws That Should Protect Our Children
Current Civil SOL in a nutshell
SOL vs. perp, employer: Case-by-Case
- 2 years from accrual (at injury) vs perp for assault/battery [except where perp & victim resided in same house then +5 from accrual vs perp]; +3 years from injury (accrual at injury) all other personal injury/death related claims. Despite accrual at injury, all claims tolled for +1 year from Minority [“year of grace”] to age 19). Majority Tolling: √ – Age 18 Discovery Tolling: X
SOL: + 2 years from accrual (at injury) vs perp for assault/battery [except where perp & victim resided in same house then +5 from accrual vs perp]; +3 years from injury (accrual at injury) all other personal injury/death related claims. Despite accrual at injury, all claims tolled for +1 year from majority [“year of grace”] to age 19).
MCLS § 600, Sec. 5805. (1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
MCLS § 600.5805 (2) Subject to subsections (3) and (4), the period of limitations is 2 years for an action charging assault, battery, or false imprisonment.
MCLS § 600.5805(3) The period of limitations is 5 years for an action charging assault or battery brought by a person who has been assaulted or battered by his or her spouse or former spouse, an individual with whom he or she has had a child in common, or a person with whom he or she resides or formerly resided.
MCLS § 600.5805 (10) Except as otherwise provided in this section, the period of limitations is 3 years after the time of the death or injury for all actions to recover damages for the death of a person, or for injury to a person or property.
MAJORITY, YES, BUT NOT AS TO ACCRUAL. ONLY PROVIDES “YEAR OF GRACE” AFTER REMOVAL OF DISABILITY OF Majority FOR ACTION WHICH ACCRUED WHEN PLAINTIFF WAS A MINOR!!!
- MCLS § 600.5851 (1) Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is None through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852.
a. MCLS § 600.5851 (5) “A court shall recognize both of the disabilities of infancy or insanity that disable the person to whom the claim first accrues at the time the claim first accrues. A court shall count the year of grace provided in this section from the termination of the last disability to the person to whom the claim originally accrued that has continued from the time the claim accrued, whether this disability terminates because of the death of the person disabled or for some other reason.”
- Discovery, tolling, No. (Accrual at injury).
a. MCLS § 600.5827. Accrual of claim. (“Sec. 5827. Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”)
b. Lemmerman v. Fealk, 534 N.W.2d 695, 703 (Mich. 1995) (repressed memories do not trigger “year of grace” nor discovery tolling, but Court notes that this is merely statutory default and legislature could address this problem if it so chose);
c. Demeyer v. Archdiocese of Detroit, 233 Mich. App. 409, 593 N.W.2d 560 (Mich. Ct. App. 1999) (“But for our obligation under MCR 7.215(H)(1) to follow Guerra, however, we would reverse and remand for consideration of the contention of defendants Archdiocese that they are entitled to summary disposition under MCR 2.116(C)(10) because they did not have knowledge or notice of defendant Gerald Shirilla’s behavior.”)
i. DEMEYER v. ARCHDIOCESE OF DETROIT, 233 Mich. App. 409 (Mich. Ct. App. 1999) (“We held that knowledge of the events at the time they occurred, coupled with the ability to associate the abuser with his role in the Archdiocese, meant that the plaintiff was aware of his possible cause of action against the Archdiocese”) (no fraudulent concealment tolling)
d. Guerra v Garratt, 222 Mich. App. 285, 287; 564 N.W.2d 121 (1997) (rejecting application of discovery rule even where conduct was admitted, thus corroborating recovered memories)
Current Criminal SOL in a nutshell
None for criminal sexual conduct in 1st degree. +10 years from commission or victim’s 21st birthday, whichever is later for most other crimes.
Application: TOP COUNT SOL REMOVED IN 2001.
None for criminal sexual conduct in 1st degree. MCLS § 767.24(1)(a). +10 years from commission or victim’s 21st birthday, whichever is later for most other crimes.
Mich. Comp. Law § 767.24 (3).
§ 767.24. Indictments; crimes; subsection (2) to be known as “Theresa Flores’s Law”; subsection (4) to be known as Brandon D’Annunzio’s law; findings and filing; limitations; extension or tolling. [Effective January 14, 2015] MCLS § 767.24. (portions amended in 2014 do not relate to CSA).
Mich. Comp. Law § 767.24 (1) An indictment for any of the following crimes may be found and filed at any time: (a) Murder, conspiracy to commit murder, or solicitation to commit murder, or criminal sexual conduct in the first degree.”
Mich. Comp. Law § 767.24 (3) An indictment for a violation or attempted violation of section 145c, 520c, 520d, 520e, or 520g of the Michigan penal code,1931 PA 328,MCL 750.145c, 750.520c, 750.520d, 750.520e, and 750.520g, may be found and filed as follows:
(a) Except as otherwise provided in subdivision (b), an indictment may be found and filed within 10 years after the offense is committed or by the alleged victim’s twenty-first birthday, whichever is later.
(b) If evidence of the offense is obtained and that evidence contains DNA that is determined to be from an unidentified individual, an indictment against that individual for the offense may be found and filed at any time after the offense is committed. However, after the individual is identified, the indictment may be found and filed within 10 years after the individual is identified or by the alleged victim’s twenty-first birthday, whichever is later.
(c) As used in this subsection:
(i) “DNA” means human deoxyearibonucleic acid.
(ii) “Identified” means the individual’s legal name is known and he or she has been determined to be the source of the DNA.
Age of Majority / Age of Consent / Age of Marriage
Age of Majority: 18. See, Mich. Comp. Laws Ann. § 722.52.
Age of Consent: 16. See, Mich. Comp. Laws Ann. § 750.10a.
Age of Marriage with Parental Consent: Under 18.
Age of Marriage without Parental Consent: 18.
See, Mich. Comp. Laws Ann. § 555.103.
Medical Neglect Statute
CIVIL MEDICAL NEGLECT STATUTE
A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be consi-dered a negligent parent or guardian. This section shall not preclude a court from ordering the provision of medical services or nonmedical remedial services recognized by state law to a child where the child’s health requires it nor does it abrogate the responsibility of a person required to report child abuse or neglect. Michigan Compiled Laws §722.634(14)
CRIMINAL MEDICAL NEGLECT STATUTE
Religous Liberty Statute
Religious liberty statute that could put children at risk
2015 Pending Michigan Religious Freedom Restoration Act
SENATE BILL NO. 4 (View Bill as PDF)
January 20, 2015, Introduced by Senator SHIRKEY and referred to the Committee on Judiciary.
A bill to limit governmental action that substantially burdens a person’s exercise of religion; to set forth legislative findings; to provide for asserting a burden on exercise of religion as a claim or defense in any judicial or administrative proceeding; and to provide remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT: Extreme Religious Liberty Statute Medical Neglect Statute Civil Medical Neglect Statute (click to view) Criminal Medical Neglect Statute (click to view) Read More Sec. 1. This act shall be known and may be cited as the “Michigan religious freedom restoration act”.
Sec. 2. The legislature finds and declares all of the following:
(a) The free exercise of religion is an inherent, fundamental, and unalienable right secured by article 1 of the state constitution of 1963 and the first amendment to the United States constitution.
(b) Laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.
(c) Government should not substantially burden religious exercise without compelling justification.
(d) In 1993, the congress of the United States enacted the religious freedom restoration act to address burdens placed on the exercise of religion in response to the United States supreme court’s decision in Employment Division v Smith, 494 US 872 (1990), which virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.
(e) In City of Boerne v P.F. Flores, 521 US 507 (1997), the United States supreme court held that the religious freedom restoration act of 1993 infringed on the legislative powers reserved to the states under the United States constitution.
(f) The compelling interest test set forth in prior court rulings, including Porth v Roman Catholic Diocese of Kalamazoo, 209Mich App 630 (1995), is a workable test for striking sensible balances between religious liberty and competing governmental interests in this state.
Sec. 3. The purposes of this act are the following:
(a) To guarantee application of the compelling interest test, as recognized by the United States supreme court in Sherbert v Verner, 374 US 398 (1963); Wisconsin v Yoder, 406 US 205 (1972); and Gonzales v O Centro Espirita Beneficiente Uniao do Vegetal, 546 US 418 (2006), to all cases where free exercise of religion is substantially burdened by government.
(b) To provide a claim or defense to persons whose religious exercise is substantially burdened by government.
Sec. 4. As used in this act:
(a) “Demonstrates” means meets the burdens of going forward with the evidence and of persuasion.
(b) “Exercise of religion” means the practice or observance of religion, including an act or refusal to act, that is substantially motivated by a sincerely held religious belief, whether or not compelled by or central to a system of religious belief.
(c) “Government” means any branch, department, agency, division, bureau, board, commission, council, authority, instrumentality, employee, official, or other entity of this state or a political subdivision of this state, or a person acting under color of law.
Sec. 5. (1) Except as provided in subsection (2), government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.
(2) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to that person’s exercise of religion in that particular instance is both of the following:
(a) In furtherance of a compelling governmental interest.
(b) The least restrictive means of furthering that compelling governmental interest.
(3) A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in any judicial or administrative proceeding and obtain appropriate relief, including equitable relief, against government.
(4) A court or tribunal may award all or a portion of the costs of litigation, including reasonable attorney fees, to a person who prevails against government under this section.
Sec. 6. (1) Section 5 applies to all laws of this state and of a political subdivision of this state, and the implementation of those laws, whether statutory or otherwise and whether adopted before or after the effective date of this act, unless the law explicitly excludes application by reference to this act.
(2) This act shall be construed in favor of broad protection of religious exercise to the maximum extent permitted by the terms of this act, the state constitution of 1963, and the United States constitution.
(3) Nothing in this act shall be construed to authorize any burden on any religious belief.
(4) Nothing in this act shall be construed to preempt or repeal any law that is equally or more protective of religious exercise than this act.
(5) Nothing in this act shall be construed to affect, interpret, or in any way address those portions of the United States constitution or the state constitution of 1963 that prohibit laws respecting the establishment of religion. Granting government funding, benefits, or exemptions, to the extent permissible under those constitutional provisions, is not a violation of this act. As used in this subsection, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.
Sec. 7. If any provision of this act or any application of such a provision to any person or circumstance is held to be unconstitutional, the remainder of this act and the application of the provision to any other person or circumstance is not affected.
Source: Michigan Legislature
Previously Introduced Legislation