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The Laws That Should Protect Our Children

Current Civil SOL in a nutshell

SOL vs. perp as of May 10, 2016 (revives expired civil SOL): up to age 53 or within 3 years of enactment, whichever is later

SOL vs. perp, employer starting March 2015: None

Prior to March 2015:

SOL vs. perp: +4 years from majority = Age 22 SOL vs. employer: +4 years from majority = Age 22

Majority Tolling: Age 18 Discovery Tolling: Narrow

Click here for the language of the 2016 Bill, HB0279.

SOL: +4 years from majority or discovery. Perp and negligence claims both. Discovery is tricky—statute would seem to indicate it is liberal (causal) but Utah courts have in fact held that it is narrow (at knowledge of injury/abuse) Utah Code Ann. § 78B-2-308(2)-(5).

  1. Utah Code Ann. § 78B-2-308(2) A person shall file a civil action for intentional or negligent sexual abuse suffered as a child: (a) within four years after the person attains the age of 18 years; or (b) if a person discovers sexual abuse only after attaining the age of 18 years, that person may bring a civil action for such sexual abuse within four years after discovery of the sexual abuse, whichever period expires later.

  2. Utah Code Ann. § 78B-2-308 (3) The victim need not establish which act in a series of continuing sexual abuse incidents caused the injury complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is part of a common scheme or plan of sexual abuse.

  3. Utah Code Ann. § 78B-2-308 (4) The knowledge of a custodial parent or guardian may not be imputed to a person under the age of 18 years.

  4. Utah Code Ann. § 78B-2-308 (5) A civil action may be brought only against a living person who intentionally perpetrated the sexual abuse or negligently permitted the sexual abuse to occur.

TOLLING

  1. Majority yes, 18

a. Utah Code Ann. § 78B-2-308(1) As used in this section: (a) “Child” means a person under 18 years of age. (b) “Discovery” means when a person knows or reasonably should know that the injury or illness was caused by the intentional or negligent sexual abuse. (c) “Injury or illness” means 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 (d) “Molestation” means touching the anus, buttocks, or genitalia of any child, the breast of a female child younger than 14 years of age, or otherwise taking indecent liberties with a child, or causing a child to take indecent liberties with the perpetrator or another, with the intent to arouse or gratify the sexual desire of any person. (e) “Negligently” means a failure to act to prevent the child sexual abuse from further occurring or to report the child sexual abuse to law enforcement when the adult who could act knows or reasonably should know of the child sexual abuse and is the victim’s parent, stepparent, adoptive parent, foster parent, legal guardian, ancestor, descendant, brother, sister, uncle, aunt, first cousin, nephew, niece, grandparent, stepgrandparent, or any person cohabiting in the child’s home. (f) “Person” means an individual who was intentionally or negligently sexually abused. It does not include individuals whose claims are derived through another individual who was sexually abused. (g) “Sexual abuse” means acts or attempted acts of sexual intercourse, sodomy, or molestation directed towards a child.

  1. Discovery, yes narrow. Statutory appears to be liberal, but Utah courts have held the opposite.

a. Colosimo v. Roman Catholic Bishop, 2007 UT 25, P22, 156 P.3d 806, 812, 573 Utah Adv. Rep. 8, 2007 Utah LEXIS 58, 16 (Utah 2007) (“Tolling is appropriate in such cases because “[r]epressing the memory of operative facts is, in effect, not knowing or being aware of those facts.” But we limited our holding by “emphasiz[ing] that [the] case involve[d] a plaintiff who allege[d] that she totally repressed her memory; it [did] not involve a plaintiff who remembered the abuse but did not realize until later that the abuse caused the psychological harm suffered.” In other words, even though we implicitly recognized that victims of child sexual abuse may often be unable to causally connect their abuse to their injuries, we were unwilling to suggest that such an inability would toll the statute.”)

i. The discovery rule provided in Utah Code Ann. § 78-12-26(3) did not apply because the students knew that they had been abused by the teacher and that the teacher was employed by defendants; this knowledge was sufficient to trigger a duty to inquire into potential claims against defendants. Because the students did not allege that they repressed all knowledge of their abuse, they had knowledge of the operative facts giving rise to their claim.

b. NOTE, BUT SEE: Utah Code Ann. § 78B-2-308 (1) (b)( “Discovery” means when a person knows or reasonably should know that the injury or illness was caused by the intentional or negligent sexual abuse. “). Utah Code Ann. § 78B-2-308 (1) (b) the definitions section defining causation as part of discovery, would appear to apply to Utah Code Ann. § 78B-2-308(2)(b) as it is the same “section”, but that is not what Utah courts have held. They have read section b in isolation and held that knowledge only triggers the SOL.

i. Thus Utah is in the knowledge only string cite, but could easily be moved to the other if we want to read the statute as it should have been, not as courts have.

  1. If it were to be moved to +causation (liberal) then this would be the citation: Utah Code Ann. § 78B-2-308 (1) (b)(“Discovery means when a person knows or reasonably should know that the injury or illness was caused by the intentional or negligent sexual abuse. “).

Current Criminal SOL in a nutshell

None for most crimes since at least 1996. Utah Code Ann. § 76-1-301(2)(h)-(p).

Utah Code Ann. § 76-1-301(2) (“Notwithstanding any other provisions of this code, prosecution for the following offenses may be commenced at any time:

(a)  capital felony;

    (b) aggravated murder;

    (c)  murder;

    (d) manslaughter;

    (e)  child abuse homicide;

    (f) aggravated kidnapping;

    (g)  child kidnapping;

    (h)  rape;

    (i)  rape of a child;

    (j)  object rape;

    (k)  object rape of a child;

    (l)  forcible sodomy;

    (m)  sodomy on a child;

    (n)  sexual abuse of a child;

    (o) aggravated sexual abuse of a child;

    (p) aggravated sexual assault;

    (q)  any predicate offense to a murder or aggravating offense to an aggravated murder;

    (r) aggravated human trafficking or aggravated human smuggling in violation of Section 76-5-310; or

    (s) aggravated exploitation of prostitution involving a child, under Section 76-10-1306.”)

Age of Majority: 18, unless legally married. See, Utah Code Ann. § 15-2-1.
Age of Consent: 16 or 18 (gap provision for age of offender). See, Utah Code Ann. § 76-5-401.2

Age of Marriage with Parental Consent: 16 (15 with judicial consent).
Age of Marriage without Parental Consent: 18.
See, Utah Code Ann. §§ 30-1-2, 30-1-9.


Medical Neglect Statute

CIVIL MEDICAL NEGLECT STATUTE

[A] parent, who, legitimately practicing religious beliefs, does not provide specified medical treatment for a child is not for that reason alone a negligent or unfit parent.

Utah Code §78-3A-408(3) (on termination of parental rights)

CRIMINAL MEDICAL NEGLECT STATUTE

UTAH defense to criminal child abuse and neglect

A parent or legal guardian who provides a child with treatment by spiritual means alone through prayer, in lieu of medical treatment, in accordance with the tenets and practices of an established church or religious denomination of which the caretaker is a member or adherent shall not, for that reason alone, be deemed to have committed an offense under this section. Utah Code §76-5-109(4)

A parent or legal guardian who provides a child with treatment by spiritual means alone through prayer, in lieu of medical treatment, in accordance with the tenets and practices of an established church or religious denomination of which the caretaker is a member or adherent shall not for that reason alone be in violation of this section.

Utah Code §76-5-110(d)(3)(a) (on abuse and neglect of disabled children)


Religous Liberty Statute

Religious liberty statute that could put children at risk

Current Law: UTAH CODE ANN. § 63L-5-101 TO -403 (2008)

Enacted: March 19, 2008

63L-5-101. Title. This chapter is known as the “Utah Religious Land Use Act.” Renumbered and Amended by Chapter 382, 2008 General Session

63L-5-102. Definitions. As used in this chapter: (1) “Free exercise of religion” means an act or refusal to act that is substantially motivated by sincere religious belief, whether or not the act or refusal is compulsory or central to a larger system of religious belief, and includes the use, building, or conversion of real property for the purpose of religious exercise. (2) “Government entity” means the state, a county, a municipality, a higher education institution, a local district, a special service district, any other political subdivision of the state, or any administrative subunit of any of them. (3) “Land use regulation” means any state or local law or ordinance, whether statutory or otherwise, that limits or restricts a person’s use or development of land or a structure affixed to land. (4) “Person” means any individual, partnership, corporation, or other legal entity that owns an interest in real property. Renumbered and Amended by Chapter 382, 2008 General Session

63L-5-201. Protection of land use as religious exercise. (1) Except as provided in Subsection (2), a government entity may not impose or implement a land use regulation in a manner that imposes a substantial burden on a person’s free exercise of religion. (2) A government entity may impose or implement a land use regulation in a manner that imposes a substantial burden on a person’s free exercise of religion if the government can establish that the imposition of the burden on that person:

(a) is in furtherance of a compelling governmental interest; and (b) is the least restrictive means of furthering that compelling governmental interest. (3) A government entity that meets the requirements of Subsection (2) need not separately prove that the remedy and penalty provisions of the land use regulation are the least restrictive means to ensure compliance or to punish the failure to comply. (4) This act shall not impair the ability of local government to impose costs and fees reasonably necessary to mitigate the off-site impacts of development. Renumbered and Amended by Chapter 382, 2008 General Session

Read More 63L-5-301. Remedies. (1) A person whose free exercise of religion has been substantially burdened by a government entity in violation of Section 63L-5-201 may bring an action in the district court of the county where the largest portion of the property subject to the land use regulation is located. (2) Any person who asserts a claim or defense against a government entity under this chapter may request:

(a) declaratory relief; (b) temporary or permanent injunctive relief to prevent the threatened or continued violation; or (c) a combination of declaratory and injunctive relief. (3) A person may not bring an action under this chapter against an individual, other than an action against an individual acting in the individual’s official capacity as an officer of a government entity. Renumbered and Amended by Chapter 382, 2008 General Session

63L-5-302. Notice of claim — Government’s right to accommodate.

(1) A person may not bring an action under Section 63L-5-301 unless, 60 days before bringing the action, the person sends written notice of the intent to bring an action. (2) The notice shall be addressed to the government entity imposing the land use regulation, and shall be prepared and delivered according to the requirements of Subsection 63G-7-401(3). (3) Mailing of the notice required by Subsection (1) tolls the limitation period for bringing an action under this chapter for a period of 75 days, starting on the day the notice was mailed. (4) Notwithstanding Subsection (1), a person may bring an action under Section 63L-5-301 before the expiration of the 60-day notice period if:

(a) the imposition of a substantial burden on the person’s free exercise of religion by the land use regulation is imminent; and (b) the person was not informed of and did not otherwise have knowledge of the land use regulation in time to reasonably provide 60 days notice. (5)

(a) A government entity provided with the notice required by Subsection (2) may remedy the substantial burden on the person’s free exercise of religion: (i) before the expiration of the 60-day notice period; or (ii) in the case of an action properly brought according to Subsection (4), before the adjudication of a court hearing on the action. (b) Nothing in this section prevents a government entity from providing a remedy after these time periods. (6) The court may not award compensatory damages, attorney’s fees, costs, or other expenses to a person if the substantial burden has been cured by a remedy implemented by the government entity according to Subsection (5)(a). Renumbered and Amended by Chapter 382, 2008 General Session

63L-5-401. Burden on exercise of religion as defense. A person whose free exercise of religion has been substantially burdened in violation of this chapter may assert that violation as a defense in a judicial or administrative proceeding without regard to whether the proceeding is brought in the name of the state or by any other person.Renumbered and Amended by Chapter 382, 2008 General Session

63L-5-402. Establishment clause unaffected. (1) This chapter does not authorize government to burden a person’s free exercise of religion. (2) The protection of religious freedom afforded by this chapter is in addition to the protections provided under federal law and the constitutions of Utah and the United States. (3) Nothing in this chapter may be construed to affect, interpret, or in any way address that portion of the First Amendment to the United States Constitution prohibiting laws respecting an establishment of religion. Renumbered and Amended by Chapter 382, 2008 General Session

63L-5-403. Application to certain cases. This chapter does not affect and is not intended to affect the authority of government entities to adopt or apply land use regulations that do not involve the free exercise of religion. Renumbered and Amended by Chapter 382, 2008 General Session

View PDF of Statute

Pending 2015 Religious Freedom Legislation

PROPOSAL TO AMEND UTAH CONSTITUTION – PROTECTION OF RELIGIOUS RIGHTS 2015 GENERAL SESSION

STATE OF UTAH

Chief Sponsor: Jacob L. Anderegg LONG TITLE General Description: 1This joint resolution of the Legislature proposes to amend the Utah Constitution to enact a provision relating to religious rights.

Highlighted Provisions: This resolution proposes to amend the Utah Constitution to: prevent a religious organization, institution, or entity, or individual acting in a role connected with a religious organization, institution, or entity, from being required or compelled to perform, solemnize, execute, or recognize any rite, ceremony, service, or ordinance that the religious organization, institution, or entity determines to be inconsistent with its tenets, doctrines, or beliefs.

Special Clauses: This resolution directs the lieutenant governor to submit this proposal to voters. This resolution provides a contingent effective date of January 1, 2017, for this proposal.

Utah Constitution Sections Affected: AMENDS: ARTICLE I, SECTION 4

Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each of the two houses voting in favor thereof:

Section 1. It is proposed to amend Utah Constitution, Article I, Section 4, to read:

Article I, Section 4. [Religious liberty.]

The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. No religious organization, institution, or entity, regardless of denomination, and no individual acting in a role connected with a religious organization, institution, or entity, may be required or compelled to perform, solemnize, execute, or recognize any rite, ceremony, service, or ordinance that the religious organization, institution, or entity determines to be inconsistent with its tenets, doctrines, or beliefs.

Section 2. Submittal to voters. The lieutenant governor is directed to submit this proposed amendment to the voters of the state at the next regular general election in the manner provided by law.

Section 3. Effective date. If the amendment proposed by this joint resolution is approved by a majority of those voting on it at the next regular general election, the amendment shall take effect on January 1, 2017.