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: +5 years from majority = Age 23
Majority Tolling: √ Age 18 Discovery Tolling: √ Liberal (+10 years)
SOL: + 10 years from age 21, or +3 from liberal discovery vs perp; only; +5 years from age 21 or liberal discovery for any 3rd party claims
Rev. Stat. Mo. § 537.046(1) As used in this section, the following terms mean: (1) “Childhood sexual abuse”, any act committed by the defendant against the plaintiff which act occurred when the plaintiff was under the age of eighteen years and which act would have been a violation of section 566.030, 566.040, 566.050, 566.060, 566.070, 566.080, 566.090, 566.100, 566.110, or 566.120, or section 568.020; (2) “Injury” or “illness”, either a physical injury or illness or a psychological injury or illness. A psychological injury or illness need not be accompanied by physical injury or illness.
Rev. Stat. Mo. § 537.046(2) (“Any action to recover damages from injury or illness caused by childhood sexual abuse in an action brought pursuant to this section shall be commenced within ten years of the plaintiff attaining the age of twenty-one or within three years of the date the plaintiff discovers, or reasonably should have discovered, that the injury or illness was caused by childhood sexual abuse, whichever later occurs.”)
Walker v. Barrett, 650 F.3d 1198, 2011 U.S. App. LEXIS 17125 (8th Cir. Mo. 2011) (finding that § 537.046 does not apply to nonperpetrator defendants).
Mo. Rev. Stat. § 516.371 (incest, 10 years)
5.. Rev. Stat. Mo § 516.120 (4) “Within five years: An action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated”)
How to deal w/ GIBSON here vs/ religious employers??
- Majority, yes, Age 21.
a. § 516.170. (“Except as provided in section 516.105, if any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be either within the age of twenty-one years, or mentally incapacitated, such person shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.370 limited after such disability is None.”)
- Discovery, YES.
a. Mo. Rev. Stat. § 516.100 (“[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.”)
b. Straub v. Tull, 128 S.W.3d 157, 162-63 (Mo. App. S.D. 2004) (application of delayed discovery proper for claims under both Mo. Rev. Stat. § 516.371 (incest) and Mo. Rev. Stat. § 537.046).
Current Criminal SOL in a nutshell
None for rape in the first degree, forcible rape, attempted rape in the first degree, attempted forcible rape, sodomy in the first degree, forcible sodomy, kidnapping, attempted sodomy in the first degree, or attempted forcible sodomy.
Age 48 for all other crimes (including unlawful sexual offenses involving a person eighteen years of age or younger).
None for rape in the first degree, forcible rape, attempted rape in the first degree, attempted forcible rape, sodomy in the first degree, forcible sodomy, kidnapping, attempted sodomy in the first degree, or attempted forcible sodomy. All other crimes +30 years form victim’s 18th birthday. § 556.037. Rev. Stat. Mo.
§ 556.037. Rev. Stat. Mo. Time limitations for prosecutions for sexual offenses involving a person under eighteen [Effective until Jan. 1, 2017] (“Notwithstanding the provisions of section 556.036, prosecutions for unlawful sexual offenses involving a person eighteen years of age or under must be commenced within thirty years after the victim reaches the age of eighteen unless the prosecutions are for rape in the first degree, forcible rape, attempted rape in the first degree, attempted forcible rape, sodomy in the first degree, forcible sodomy, kidnapping, attempted sodomy in the first degree, or attempted forcible sodomy in which case such prosecutions may be commenced at any time.”)
§ 556.037 Rev. Stat. Mo. Time limitations for prosecutions for sexual offenses involving a person under eighteen [Effective Jan. 1, 2017] (“Notwithstanding the provisions of section 556.036, prosecutions for unlawful sexual offenses involving a person eighteen years of age or under must be commenced within thirty years after the victim reaches the age of eighteen unless the prosecutions are for rape in the first degree, forcible rape, attempted rape in the first degree, attempted forcible rape, sodomy in the first degree, forcible sodomy, kidnapping, kidnapping in the first degree, attempted sodomy in the first degree, or attempted forcible sodomy in which case such prosecutions may be commenced at any time.”)
(“556.037. [A> NOTWITHSTANDING to the contrary notwithstanding,
Mo. Rev. Stat. § 556.037, the 10-year statute of limitations applicable to offenses involving sexual abuse of children that was enacted in 1987, applies retroactively to offenses involving child sexual abuse committed within the three year period prior to its enactment (i.e .all claims not yet barred); Mo. Rev. Stat. § 1.160 does not prevent retroactive application of the 10-year statute of limitations. Longhibler v. State, 1992 Mo. App. LEXIS 300 (Mo. Ct. App. Feb. 25 1992).
Age of Majority / Age of Consent / Age of Marriage
Age of Majority: 18. See, Mo. Ann. Stat. § 507.115.
Age of Consent: 17. See, Mo. Ann. Stat. § 566.020.
Age of Marriage with Parental Consent: 15 (under 15 with judicial consent).
Age of Marriage without Parental Consent: 18.
See, Mo. Rev. Stat. § 451.090.
Medical Neglect Statute
CIVIL MEDICAL NEGLECT STATUTE
Notwithstanding any other provision of sections 210.109 to 210.183 [which define medical neglect], any child who does not receive specified medical treat¬ment by reason of the legitimate practice of the religious belief of the child’s parents, guardian, or others legally responsible for the child, for that reason alone, shall not be found to be an abused or neglected child, and said parents, guardian or other persons legally responsible for the child shall not be entered into the central registry. However, the division may accept re¬ports concerning such a child and may subse¬quent¬ly investigate or conduct a family assessment as a result of that report. Such an exception shall not limit the administrative or judicial authori¬ty of the state to ensure that medical services are provided to the child when the child’s health requires it. Missouri Revised Statutes §210.115(4)
Except as otherwise provided herein, the juvenile court shall have exclusive original jurisdiction in proceedings: (1) Invol¬ving any child who may be a resident of or found within the county and who is alleged to be in need of care and treatment because: (a) The parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his well-being; except that reliance by a parent, guardian or custodian upon remedial treat¬ment other than medical or surgical treatment for a child shall not be construed as neglect when the treatment is recognized or permitted under the laws of this state. . . . Missouri Revised Statutes §211.031
CRIMINAL MEDICAL NEGLECT STATUTE
MISSOURI defenses to child endangerment and nonsupport Nothing in this section shall be construed to mean the welfare of a child is endangered for the sole reason that he is being provided nonmedical remedial treatment recognized and permitted under the laws of this state. Missouri Revised Statutes §568.050(4)(2)
It shall not constitute a failure to provide medical and surgical attention, if non-medical remedial treatment recognized and permitted under the laws of this state is provided. Missouri Revised Statutes §568.040(2)(4)
Note: These laws raise a question of what constitutes state recognition. Many would say licensure. They raise a further question of whether the state recognizes or permits such treatment for the specific illness of a child. Missouri prosecutors, however, have cited these laws as a bar to prosecution of Christian Science parents who withhold lifesaving medical care from children, apparently concluding that Christian Science spiritual “treatment” qualifies as state-recognized non-medical remedial treatment.
Religous Liberty Statute
Religious liberty statute that could put children at risk
Current Law: R.S.MO. § 1.302-.307
Enacted: July 9, 2003
§ 1.302. RELIGIOUS FREEDOM RESTORATION ACT
- A governmental authority may not restrict a person’s free exercise of religion, unless: (1) The restriction is in the form of a rule of general applicability, and does not discriminate against religion, or among religions; and (2) The governmental authority demonstrates that application of the restriction to the person is essential to further a compelling governmental interest, and is not unduly restrictive considering the relevant circumstances.
- As used in this section, “exercise of religion” shall be defined as an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.
As used in this section “demonstrates” means meets the burden of going forward with the evidence and of persuasion. Read More § 1.307. LAWS NOT TO ELIMINATE DEFENSE TO A CIVIL ACTION OR CRIMINAL PROSECUTION BASED ON FEDERAL, STATE OR LOCAL CIVIL RIGHTS — RELEVANT CIRCUMSTANCES DEFINED
Section 1.302 and this section apply to all state and local laws, resolutions and ordinances and the implementation of such laws, resolutions, and ordinances, whether statutory or otherwise, and whether adopted before or after August 28, 2003.
- Nothing in section 1.302 and this section shall be construed to authorize any government to burden any religious belief, except that nothing in these sections shall be construed to establish or eliminate a defense to a civil action or criminal prosecution based on a federal, state, or local civil rights law.
- Nothing in section 1.302 and this section shall be construed as allowing any person to cause physical injury to another person, to possess a weapon otherwise prohibited by law, to fail to provide monetary support for a child or to fail to provide health care for a child suffering from a life-threatening condition.
- “Relevant circumstances” may include legitimate penological interests needed to protect the safety and security of incarcerated persons and correctional facilities, but shall not include reasonable requests by incarcerated individuals for the opportunity to pray, reasonable access to clergy, use of religious materials that are not violent or profane, and reasonable dietary requests. Pending Religion Bill
2015 PENDING LEGISLATION Missouri H.B. 0104 (View PDF)
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 173, RSMo, is amended by adding thereto two new sections, to be known as sections 173.1555 and 173.1560, to read as follows:
173.1555. As used in sections 173.1555 and 173.1560, the following terms shall mean:
(1) “Benefit”, recognition, registration, the use of facilities of the public institution
of higher learning for meetings or speaking purposes, the use of channels of communication of the public institution of higher learning and the use of funding sources that are otherwise available to other student associations in the public institution of higher learning;
(2) “Exercise of religion”, the practice or observance of religion as specified by state law and the First Amendment of the United States Constitution;
(3) “Public institution of higher learning”, any state postsecondary educational institution governed or supervised by a board erected under chapter 172, 174, 175, or 178, a board of trustees of a community college, or any state board for any other technical school;
(4) “Substantially burden”, an action by a public institution of higher learning which directly or indirectly:
(a) Constrains or inhibits conduct or expression that reflects a student’s sincerely held religious beliefs; held religious belief or not to engage in conduct or expression motivated by a sincerely held religious belief. (b) Denies a student an opportunity to engage in religious activities; or
(c) Pressures a student to engage in conduct or expression contrary to a sincerely
173.1560. 1. No public institution of higher learning shall take any action or
enforce any policy that denies a religious student association any benefit available to any other student association, or discriminate against a religious student association with respect to such benefit, based on that association’s requirement that its leaders or members adhere to the association’s sincerely held religious beliefs, comply with the association’s sincere religious observance requirements, comply with the association’s sincere religious standards of conduct, or be committed to furthering the association’s religious missions as such beliefs, requirements, standards, or missions are defined by the association or religion upon which the association is based.
No public institution of higher learning shall substantially burden a student’s exercise of religion except if it is in furtherance of a compelling interest of the public institution of higher learning, actually furthers that interest, and is the least restrictive means of furthering that interest.
Any student or religious student association that has been aggrieved as a result of a violation of subsection 1 or 2 of this section may assert that violation as a claim or defense in a judicial or administrative proceeding against the public institution of higher learning and obtain appropriate relief, including damages, against that institution.
Source: Missouri legislature
2014: View PDF: 2014 Introduced Religion Bill (SB 916)