S08736 Summary:

BILL NOS08736A
 
SAME ASNo Same As
 
SPONSORYOUNG
 
COSPNSRLANZA, PHILLIPS, AMEDORE, FELDER, FUNKE, GALLIVAN, GOLDEN, GRIFFO, HANNON, HELMING, JACOBS, LITTLE, MARCELLINO, MURPHY, ORTT, RANZENHOFER, RITCHIE, ROBACH, SERINO, SEWARD, TEDISCO
 
MLTSPNSR
 
Add Art 17 300 - 307, St Fin L; amd 30.10, CP L; amd 413, add Art 6 Title 6-B 429-a - 429-d; Soc Serv L; add 113, BC L; add 116, N-PC L; add 28, Rel Corp L; add 6, Coop Corps L; amd Part J 14, Chap 62 of 2003
 
Relates to establishing the New York child victim reconciliation and compensation fund; relates to the statute of limitations for sex offenses committed against a child; relates to the reporting of child abuse; relates to child protection and criminal history searches; and relates to providing for the reimbursement of not-for-profit corporations for fees collected for criminal history searches by the office of court administration.
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S08736 Actions:

BILL NOS08736A
 
05/10/2018REFERRED TO FINANCE
05/24/2018AMEND AND RECOMMIT TO FINANCE
05/24/2018PRINT NUMBER 8736A
06/05/2018REPORTED AND COMMITTED TO RULES
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S08736 Committee Votes:

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S08736 Floor Votes:

There are no votes for this bill in this legislative session.
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S08736 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8736--A
 
                    IN SENATE
 
                                      May 10, 2018
                                       ___________
 
        Introduced  by  Sens.  YOUNG,  LANZA,  PHILLIPS, AMEDORE, FELDER, FUNKE,
          GALLIVAN, GRIFFO, HELMING, JACOBS, LITTLE, MARCELLINO,  MURPHY,  ORTT,
          RANZENHOFER, RITCHIE, ROBACH, SERINO, SEWARD -- read twice and ordered
          printed,  and when printed to be committed to the Committee on Finance
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and recommitted to said committee

        AN  ACT  to amend the state finance law, in relation to establishing the
          New York child victim reconciliation and compensation fund;  to  amend
          the  criminal procedure law, in relation to the statute of limitations
          for sex offenses committed  against  a  child;  to  amend  the  social
          services  law,  in  relation to the reporting of child abuse; to amend
          the business corporation law, the not-for-profit corporation law,  the
          religious  corporations  law  and the cooperative corporations law, in
          relation to child protection and criminal  history  searches;  and  to
          amend part J of chapter 62 of the laws of 2003 amending the county law
          and  other  laws  relating to fees collected, in relation to providing
          for  the  reimbursement  of  not-for-profit  corporations   for   fees
          collected  for criminal history searches by the office of court admin-
          istration

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Legislative findings. The Legislature hereby finds that a
     2  number of individuals within the state have been unable to seek  redress
     3  for  sexual abuse suffered as a child. Due to the unique nature of child
     4  sexual abuse and fears of reprisal, child victims often suffer for years
     5  in silence and are often unable to comprehend the fact  that  they  have
     6  been  victimized.  This  can  lead  to repression of the abuse and often
     7  results in the victim's confusion,  anger  and  associated  difficulties
     8  later  in life. Due to the nature of abuse a victim has been subject to,
     9  and their perceived or actual inability to pursue legal  action  at  the
    10  time of the abuse, many victims have been psychologically unable to file
    11  a  civil  litigation  claim within the requisite statute of limitations.
    12  Due to the amount of time that may have transpired since the instance or
    13  instances of abuse, the claim may no longer be pursued  through  typical
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15716-05-8

        S. 8736--A                          2
 
     1  litigation.  In  some  instances,  the sexual abuser may now be impover-
     2  ished, unavailable, unable to be  located,  or  may  have  passed  away,
     3  making  it  impossible  or  impractical  for  the victim to seek redress
     4  through  the  court system. In order to afford those victims an opportu-
     5  nity to seek the redress due to them, the legislature hereby establishes
     6  a New York child victim reconciliation and compensation fund,  which  is
     7  intended  to  provide  assistance  to  those who were sexually abused as
     8  children.
     9    § 2. The state finance law is amended by adding a new  article  17  to
    10  read as follows:
    11                                 ARTICLE 17
    12         NEW YORK CHILD VICTIM RECONCILIATION AND COMPENSATION FUND
    13  Section 300. Purpose.
    14          301. Definitions.
    15          302. New York child victim reconciliation and compensation fund.
    16          303. Filing of claim.
    17          304. Hearing officers; powers and duties.
    18          305. Claims administrator review.
    19          306. Payments to eligible individuals.
    20          307. Regulations.
    21    §  300.  Purpose. It is the purpose of this article to provide compen-
    22  sation and assistance to any individual who has  incurred  physical  and
    23  psychological  damages  based  upon the result of childhood sexual abuse
    24  who has not previously been compensated for such alleged  abuse  and  is
    25  now barred from pursuing a civil action for damages against the abuser.
    26    §  301.  Definitions.  For the purposes of this article, the following
    27  terms shall have the following meanings:
    28    1. "claimant" means any individual who:
    29    (a) suffered sexual abuse as  defined  in  subdivision  five  of  this
    30  section; and
    31    (b)  such  abuse occurred prior to the claimant's eighteenth birthday;
    32  and
    33    (c) such individual is barred by article two of the civil practice law
    34  and rules from instituting a civil action or proceeding; and
    35    (d) such  individual  has  not  otherwise  received  compensation  for
    36  damages  resulting  from,  or  on account of, such sexual abuse by civil
    37  settlement, judgment or other private method, including but not  limited
    38  to arbitration; and
    39    (e) no other individual on behalf of the claimant during the period of
    40  the claimant's minority has received compensation for the same claim.
    41    2.  "economic loss" means any identifiable pecuniary loss from employ-
    42  ment, medical expenses, loss of business, loss of economic opportunities
    43  to the extent that such loss would be recoverable  had  the  statute  of
    44  limitations  not  expired  and for which the claimant has not previously
    45  received compensation;
    46    3. "eligible individual" means an individual determined to be eligible
    47  for compensation pursuant to section three hundred five of this article;
    48    4. "noneconomic losses" means losses for physical and emotional  pain,
    49  suffering inconvenience, physical impairment, mental anguish, disfigure-
    50  ment, loss of enjoyment of life, loss of society and companionship, loss
    51  of  consortium  (other  than loss of domestic service), hedonic damages,
    52  injury to reputation, and all other nonpecuniary losses of any  kind  of
    53  nature; and
    54    5.  "sexual  abuse"  means  acts  proscribed under article one hundred
    55  thirty of the penal law, acts constituting incest as defined in  section
    56  255.27,  255.26  or 255.25 of the penal law, or acts including the indi-

        S. 8736--A                          3
 
     1  vidual in a sexual performance as defined in section 263.05 of the penal
     2  law, or a predecessor statute that prohibited such conduct at  the  time
     3  of the act.
     4    §  302. New York child victim reconciliation and compensation fund. 1.
     5  There is hereby created in the joint custody of  the  state  comptroller
     6  and  a chief administrator, who shall be appointed as provided in subdi-
     7  vision three of this section, a special fund to be  known  as  the  "New
     8  York child victim reconciliation and compensation fund."
     9    2. (a) Such fund shall consist of three hundred million dollars trans-
    10  ferred  from  the  state  asset  forfeiture  funds  and funds secured by
    11  payments associated with state sanctioned  deferred  prosecution  agree-
    12  ments  currently  held  on  deposit  with  the  office  of the Manhattan
    13  district attorney.
    14    (b) The office of the Manhattan district attorney  shall  additionally
    15  remit  five  percent  of  the total of any future state asset forfeiture
    16  funds which have been secured by such district attorney by January first
    17  of the subsequent year.
    18    (c) The chief administrator is authorized to accept  such  amounts  as
    19  may  be contributed by individuals, business concerns, or other entities
    20  to carry out the purposes of this article.
    21    3. (a) The chief administrator shall be selected by  the  state  comp-
    22  troller in consultation with the leaders of the senate and assembly.
    23    (b) The chief administrator shall be qualified by previous experience,
    24  training  and education to administer such a fund. The chief administra-
    25  tor shall be subject to removal pursuant to the public officers law  and
    26  shall  be  subject to the jurisdiction of the joint commission on public
    27  ethics for all disciplinary matters. No bond shall  be  required  before
    28  entering into service.
    29    (c)  Prior  to entering into service, the chief administrator shall be
    30  required to file a long form ethics filing with the joint commission  on
    31  public ethics.
    32    4.  The chief administrator shall appoint a claims administrator.  The
    33  claims administrator, in  consultation  with  the  chief  administrator,
    34  shall promulgate procedural and substantive rules for the administration
    35  of the fund.
    36    5. (a) The chief administrator shall appoint hearing officers who have
    37  a record of substantive experience in the investigation, prosecution and
    38  defense  of  child sexual abuse allegations. Such hearing officers shall
    39  receive the same remuneration as hearing officers in a comparable  agen-
    40  cy.
    41    (b)  The  chief  administrator shall have the power to appoint and pay
    42  such experts as sought by hearing officers in aid of the determination.
    43    6. The chief administrator shall have the power to appoint administra-
    44  tive personnel to administer the provisions of this section pursuant  to
    45  a hiring plan approved by the state comptroller.
    46    7.  The  claims  administrator,  in  conjunction  with the state comp-
    47  troller, shall be responsible for the administration of funds  deposited
    48  in the New York child victim reconciliation and compensation fund estab-
    49  lished pursuant to this section.
    50    §  303.  Filing  of claim. 1. The claims administrator shall develop a
    51  claim form that claimants shall use when submitting  claims  under  this
    52  section  and shall ensure that such form may be submitted electronically
    53  if determined to be practicable.
    54    2. A claimant may file a claim for  compensation  under  this  article
    55  with  the  claims administrator. The claim shall state the factual basis
    56  for eligibility for compensation and the amount of compensation sought.

        S. 8736--A                          4
 
     1    3. The form required under subdivision one of this  section  shall  be
     2  under oath and shall provide the following information:
     3    (a) a narrative of the events containing Information from the claimant
     4  concerning  the  identity  of the alleged abuser, the physical or mental
     5  harm that the claimant suffered, is suffering from, and/or  may  reason-
     6  ably be expected to suffer in the future.
     7    (b)  information  from  the  claimant concerning any possible economic
     8  losses that the claimant has suffered or is expected to  suffer  as  the
     9  result of sexual abuse.
    10    (c)  information  regarding  collateral  sources  of  compensation the
    11  claimant has received or is entitled to receive  as  a  result  of  such
    12  abuse.
    13    (d)  any  other material that the claimant wishes to present in aid of
    14  the determination of the claim.
    15    § 304. Hearing officers; powers and duties. 1.  Proceedings  conducted
    16  pursuant to this article shall be presided over by a hearing officer who
    17  shall  have  substantial experience relating to the litigation, investi-
    18  gation, prosecution or defense of child sexual abuse claims.
    19    2. The hearing officer shall set the time and place of any hearing and
    20  shall give reasonable notice to the parties.
    21    3. The hearing officer shall conduct a fair and impartial hearing  and
    22  take  all  action  necessary  to  avoid  delay  in  the  disposition  of
    23  proceedings and to maintain order. The hearing officer  shall  have  all
    24  powers necessary to those ends, including, but not limited to, the power
    25  to:
    26    (a) administer oaths and affirmations;
    27    (b) cause subpoenas to be issued as authorized by law;
    28    (c) rule upon offers of proof and receive evidence;
    29    (d) order or limit discovery as the interests of justice may require;
    30    (e)  regulate the course of the hearing and the conduct of the parties
    31  and their counsel;
    32    (f) hold conferences for  the  settlement  or  simplification  of  the
    33  issues by consent of the parties;
    34    (g)  consider and rule upon all procedural and other motions appropri-
    35  ate in adjudicative proceedings;
    36    (h) take notice of any material fact not appearing in evidence in  the
    37  record that is properly a matter of judicial notice;
    38    (i) make and file determinations to the claims administrator; and
    39    (j)  exercise  such  other  authority as is necessary to carry out the
    40  responsibilities of the hearing officer under this section.
    41    4. Claimants and defendants taking part in  a  proceeding  under  this
    42  section shall have:
    43    (a)  the right to be represented by an attorney, and upon a showing of
    44  indigence, may obtain appointed counsel;
    45    (b) the right to  present  evidence,  including  the  presentation  of
    46  witnesses and documents, expert testimony; and
    47    (c)  any  other  due  process  rights deemed appropriate by the claims
    48  administrator.
    49    § 305. Claims administrator review. 1. The claims administrator  shall
    50  review  all  findings  made  by a hearing officer in each case submitted
    51  under this section and shall determine:
    52    (a) whether the defendant is responsible for the  conduct  alleged  by
    53  the claimant; and
    54    (b) whether the claimant is an eligible individual under this section.
    55    2.  A  claimant  shall  be  deemed  an  eligible individual under this
    56  section when the claim administrator determines the claimant:

        S. 8736--A                          5
 
     1    (a) was a victim of the alleged conduct;
     2    (b)  is an individual who has suffered economic or noneconomic loss as
     3  a result of sexual abuse which occurred within the state; and
     4    (c) the individual has been unable to pursue a civil claim for damages
     5  resulting from the loss described in paragraph (b) of  this  subdivision
     6  due  to  the failure to file a judicial claim for damages resulting from
     7  such abuse within the requisite statute of limitations.
     8    3. The following factors shall be considered in determining the amount
     9  of compensation to be paid to such eligible individuals:
    10    (a) the nature, extent and frequency of  the  sexual  abuse  that  was
    11  found to have occurred;
    12    (b) the extent of the harm to the claimant, including any economic and
    13  noneconomic loss; and
    14    (c)  the  extent  to which aggravating circumstances are alleged, such
    15  as:
    16    (i) the age of the claimant;
    17    (ii) the severity of the abuse;
    18    (iii) the location of the abuse;
    19    (iv) threats of physical harm and/or retaliation;
    20    (v) significant, verifiable and life  altering  psychological  damage;
    21  and/or
    22    (vi)  any  other  significant information relevant to the claim or the
    23  defense of the claim.
    24    4. No later than ninety days after that date on which a claim is filed
    25  under section three hundred three of this article, unless good cause can
    26  be demonstrated, the claim administrator shall complete a review, make a
    27  determination, and provide written notice to the claimant, with  respect
    28  to  the  matters that were the subject of the claim under review. Such a
    29  determination shall be final and not subject to judicial review.
    30    5. The claims administrator may not include punitive  damages  in  any
    31  compensation paid under a claim under this article.
    32    6.  The  claims  administrator shall reduce the amount of compensation
    33  determined under this section solely by the  amount  of  any  collateral
    34  compensation  the  claimant  has received or is entitled to receive as a
    35  result of such sexual abuse.
    36    § 306. Payments to eligible individuals. 1. No later than twenty  days
    37  after  the  date on which a determination is made by the claims adminis-
    38  trator regarding the amount of compensation due a  claimant  under  this
    39  article, the claims administrator shall authorize payment to such claim-
    40  ant of the amount determined with respect to such claimant.
    41    2.  The  chief  administrator  shall  maintain  a  publicly accessible
    42  website which lists the name of the perpetrator of the abuse  which  was
    43  found  to have occurred, and which also includes the approximate date or
    44  dates the abuse occurred and the approximate geographic location of each
    45  instance of abuse, as well as any other identifying  information  deemed
    46  by the chief administrator to be appropriate.
    47    § 307. Regulations. No later than ninety days after the effective date
    48  of this article, the chief administrator, in consultation with the state
    49  comptroller  and  the claims administrator, shall promulgate regulations
    50  to carry out this article, including regulations prescribing:
    51    1. forms to be used in submitting claims under this article;
    52    2. the information to be included in such forms;
    53    3. procedures for hearings and the presentation of evidence;
    54    4. procedures to assist an individual in filing  and  pursuing  claims
    55  under this article; and

        S. 8736--A                          6

     1    5. other matters determined by the chief administrator and approved by
     2  the  state comptroller necessary to carry out the purposes of this arti-
     3  cle.
     4    §  3.  Paragraph (f) of subdivision 3 of section 30.10 of the criminal
     5  procedure law, as separately amended by chapters 3 and 320 of  the  laws
     6  of 2006, is amended to read as follows:
     7    (f)  [For  purposes  of a] A prosecution involving a sexual offense as
     8  defined in article one hundred thirty of the penal  law,  other  than  a
     9  sexual  offense  delineated  in paragraph (a) of subdivision two of this
    10  section, committed against a child less  than  eighteen  years  of  age,
    11  incest  in  the  first,  second  or  third degree as defined in sections
    12  255.27, 255.26 and 255.25 of the penal law  committed  against  a  child
    13  less  than eighteen years of age, or use of a child in a sexual perform-
    14  ance as defined in section 263.05 of the penal law, [the period of limi-
    15  tation shall not begin to run until the child has  reached  the  age  of
    16  eighteen  or  the  offense  is  reported  to a law enforcement agency or
    17  statewide central register of child abuse  and  maltreatment,  whichever
    18  occurs earlier] may be commenced at any time.
    19    §  4.  Paragraph  (a)  of  subdivision  1 of section 413 of the social
    20  services law, as amended by section 7 of part C of  chapter  57  of  the
    21  laws of 2018, is amended to read as follows:
    22    (a)  The  following  persons  and  officials are required to report or
    23  cause a report to be made in accordance with this title when  they  have
    24  reasonable  cause  to  suspect  that a child coming before them in their
    25  professional or official capacity is an abused or maltreated  child,  or
    26  when  they have reasonable cause to suspect that a child is an abused or
    27  maltreated child where the parent, guardian, custodian or  other  person
    28  legally  responsible  for  such child comes before them in their profes-
    29  sional or official capacity and states from  personal  knowledge  facts,
    30  conditions or circumstances which, if correct, would render the child an
    31  abused  or maltreated child: any physician; registered physician assist-
    32  ant; surgeon; medical  examiner;  coroner;  dentist;  dental  hygienist;
    33  osteopath;  optometrist;  chiropractor;  podiatrist;  resident;  intern;
    34  psychologist; registered nurse; social worker; emergency medical techni-
    35  cian; licensed creative arts therapist;  licensed  marriage  and  family
    36  therapist;  licensed  mental  health  counselor; licensed psychoanalyst;
    37  licensed behavior analyst; certified behavior analyst assistant;  hospi-
    38  tal  personnel  engaged in the admission, examination, care or treatment
    39  of persons; member of the  clergy;  a  Christian  Science  practitioner;
    40  school  official,  which  includes but is not limited to school teacher,
    41  school guidance counselor, school psychologist,  school  social  worker,
    42  school nurse, school administrator or other school personnel required to
    43  hold  a teaching or administrative license or certificate; full or part-
    44  time compensated school employee required to hold a  temporary  coaching
    45  license  or  professional  coaching certificate; social services worker;
    46  employee of a publicly-funded emergency shelter for families with  chil-
    47  dren;  director of a children's overnight camp, summer day camp or trav-
    48  eling summer day camp, as such camps are  defined  in  section  thirteen
    49  hundred  ninety-two  of  the  public health law; day care center worker;
    50  school-age child care worker; provider of family  or  group  family  day
    51  care;  employee or volunteer in a residential care facility for children
    52  that is licensed, certified or operated by the office  of  children  and
    53  family  services;  or any other child care or foster care worker; mental
    54  health professional; substance abuse  counselor;  alcoholism  counselor;
    55  all persons credentialed by the office of alcoholism and substance abuse
    56  services;  employees,  who  are expected to have regular and substantial

        S. 8736--A                          7
 
     1  contact with children, of a health home or health home  care  management
     2  agency contracting with a health home as designated by the department of
     3  health  and  authorized under section three hundred sixty-five-l of this
     4  chapter  or such employees who provide home and community based services
     5  under a demonstration program pursuant to section eleven hundred fifteen
     6  of the federal social security act who are expected to have regular  and
     7  substantial  contact  with  children;  peace  officer;  police  officer;
     8  district attorney or assistant district attorney; investigator  employed
     9  in the office of a district attorney; or other law enforcement official.
    10    §  5.  Subdivision  1  of  section  413  of the social services law is
    11  amended by adding five new paragraphs (e), (f), (g), (h) and (i) to read
    12  as follows:
    13    (e) Unless the person confessing or confiding waives the privilege,  a
    14  member  of the clergy, or other minister of any religion or duly accred-
    15  ited Christian Science practitioner, shall not be  required  to  make  a
    16  report  as  required  by  paragraph  (a)  of  this  subdivision  if  the
    17  confession or confidence was made to him or her in his  or  her  profes-
    18  sional character as spiritual advisor.
    19    (f) When a member of the clergy has reasonable cause to suspect that a
    20  child  is  an  abused  or  maltreated  child  based upon any information
    21  received other than through a confession or confidence made pursuant  to
    22  paragraph  (e) of this subdivision, then such member of the clergy shall
    23  promptly make a report as required by paragraph (a) of this  subdivision
    24  notwithstanding  the fact that he or she may have also received a report
    25  of abuse or maltreatment through a confession or confidence made  pursu-
    26  ant to paragraph (e) of this subdivision.
    27    (g)  The  provisions of paragraph (e) of this subdivision shall not be
    28  deemed to exempt a member of the clergy from any other  requirements  of
    29  law to prevent the perpetrator from committing additional acts of abuse.
    30    (h) For the purposes of this subdivision the term "member of the cler-
    31  gy"  shall have the same definition as the term "clergyman" as set forth
    32  in section two of the religious corporations law and shall also  include
    33  any person responsible for supervising a member of the clergy of a reli-
    34  gious  institution  or responsible for the administration of a religious
    35  institution.
    36    (i) For the purposes of this subdivision the term "religious  institu-
    37  tion"  shall  mean a religious corporation created to enable its members
    38  to meet for divine worship or other religious observances or  a  congre-
    39  gation,  society,  or  other assemblage of persons who are accustomed to
    40  statedly meet for divine worship or other religious observances, without
    41  having been incorporated for that purpose, as provided in section two of
    42  the religious corporations law.
    43    § 6. Article 6 of the social services law is amended by adding  a  new
    44  title 6-B to read as follows:
    45                                  TITLE 6-B
    46                  REPORTS OF CHILD ABUSE TO LAW ENFORCEMENT
    47  Section 429-a. Persons   and  officials  required  to  report  cases  of
    48                   suspected child abuse to  appropriate  law  enforcement
    49                   agency.
    50          429-b. Penalties for failure to report.
    51          429-c. Immunity from liability.
    52          429-d. Review  of  existing records for allegations that a child
    53                   is an abused child; district attorney; penalty.
    54    § 429-a. Persons and officials required to report cases  of  suspected
    55  child  abuse to appropriate law enforcement agency. 1. (a) The following
    56  persons and officials are required to report or cause  a  report  to  be

        S. 8736--A                          8
 
     1  made  to an appropriate law enforcement agency when they have reasonable
     2  cause to suspect in their professional or official capacity that a child
     3  is an abused  child:  any  physician;  registered  physician  assistant;
     4  surgeon;  medical  examiner;  coroner; dentist; dental hygienist; osteo-
     5  path; optometrist; chiropractor; podiatrist; resident; intern;  psychol-
     6  ogist;  registered nurse; emergency medical technician; hospital person-
     7  nel engaged in the admission, examination, care or treatment of persons;
     8  member of the clergy; a Christian Science practitioner; school official;
     9  social services worker; day care center worker; provider  of  family  or
    10  group  family  day  care;  employee  or  volunteer in a residential care
    11  facility or any other child care or foster care  worker;  mental  health
    12  professional;  substance  abuse  counselor;  alcoholism counselor; peace
    13  officer; police officer; district attorney or assistant district  attor-
    14  ney;  investigator  employed  in  the  office of a district attorney; or
    15  other law enforcement official.
    16    (b) For the purposes of this section the  term  "abused  child"  shall
    17  mean a child under the age of eighteen years upon whom a person eighteen
    18  years of age or more who is defined in paragraph (a) of this subdivision
    19  and  who  is not the parent or other person legally responsible for such
    20  child's care:
    21    (i) intentionally or  recklessly  inflicts  physical  injury,  serious
    22  physical injury or death, or
    23    (ii)  intentionally  or  recklessly engages in conduct which creates a
    24  substantial risk of such physical injury,  serious  physical  injury  or
    25  death, or
    26    (iii)  commits  or  attempts  to  commit  against a child the crime of
    27  disseminating indecent materials  to  minors  pursuant  to  article  two
    28  hundred thirty-five of the penal law, or
    29    (iv)  engages  in any conduct prohibited by article one hundred thirty
    30  or two hundred sixty-three of the penal law.
    31    (c) For the purposes of this section the term "law enforcement author-
    32  ities" shall mean a municipal police department,  sheriff's  department,
    33  the division of state police or any officer thereof or a district attor-
    34  ney  or assistant district attorney. Notwithstanding any other provision
    35  of law, law enforcement authorities shall not include any child  protec-
    36  tive service or any society for the prevention of cruelty to children as
    37  such  terms  are  defined  in  section four hundred twenty-three of this
    38  article.
    39    (d) For the purposes of this section the term "member of  the  clergy"
    40  shall  have  the same definition as the term "clergyman" as set forth in
    41  section two of the religious corporations law and shall also include any
    42  person responsible for supervising a member of the clergy of a religious
    43  institution or responsible for the administration of a religious  insti-
    44  tution.
    45    (e)  For the purposes of this section the term "religious institution"
    46  shall mean a religious corporation created to enable its members to meet
    47  for divine worship or other religious  observances  or  a  congregation,
    48  society,  or  other assemblage of persons who are accustomed to statedly
    49  meet for divine worship or other religious observances,  without  having
    50  been  incorporated  for  that purpose, as provided in section two of the
    51  religious corporations law.
    52    2. (a) Unless the person confessing or confiding waives the privilege,
    53  a member of the clergy, or  other  minister  of  any  religion  or  duly
    54  accredited Christian Science practitioner, shall not be required to make
    55  a report as required by paragraph (a) of subdivision one of this section

        S. 8736--A                          9

     1  if  the  confession  or  confidence was made to him or her in his or her
     2  professional character as spiritual advisor.
     3    (b) When a member of the clergy has reasonable cause to suspect that a
     4  child  is an abused child based upon any information received other than
     5  through a confession or confidence made pursuant  to  paragraph  (a)  of
     6  this  subdivision,  then such member of the clergy shall promptly make a
     7  report as required by paragraph (a) of subdivision one of  this  section
     8  notwithstanding  the fact that he or she may have also received a report
     9  of abuse through a confession or confidence made pursuant  to  paragraph
    10  (a) of this subdivision.
    11    (c)  The  provisions of paragraph (a) of this subdivision shall not be
    12  deemed to exempt a member of the clergy from any other  requirements  of
    13  law to prevent the perpetrator from committing additional acts of abuse.
    14    3.  Nothing  in this title shall be construed to require the report of
    15  information by a person required to report herein when such  information
    16  is otherwise privileged from disclosure by law.
    17    §  429-b.  Penalties  for failure to report. 1. Any person required by
    18  this title to report a case of suspected child abuse who willfully fails
    19  to do so shall be guilty of a class A misdemeanor.
    20    2. Any person required by this title to report  a  case  of  suspected
    21  child  abuse who knowingly and willfully fails to do so shall be civilly
    22  liable for the damages proximately caused by such failure.
    23    § 429-c. Immunity from liability. 1. Any  person  who  in  good  faith
    24  makes  a report of allegations of child abuse as required by this title,
    25  including those who in good faith make a report to the wrong  recipient,
    26  shall have immunity from criminal liability which might otherwise result
    27  by reason of such actions.
    28    2. Any person who reasonably and in good faith makes a report of alle-
    29  gations  of  child  abuse as required by this title, shall have immunity
    30  from civil liability which might otherwise  result  by  reason  of  such
    31  actions.
    32    § 429-d. Review of existing records for allegations that a child is an
    33  abused  child; district attorney; penalty. 1. Within three months of the
    34  effective date of this section, all members of  the  clergy  shall:  (a)
    35  review  all  institutional  records  within  their control and any other
    36  information they have obtained regarding allegations that a child is  an
    37  abused  child by a member of the clergy within twenty years prior to the
    38  effective date of this section; and (b) review whether they are aware of
    39  any other allegations that a child is an abused child  alleged  to  have
    40  been  abused  by  a  member  of  the  clergy who remains actively in the
    41  service of a religious institution, regardless of the date on which such
    42  allegation was made; and where such information or records raise reason-
    43  able cause to suspect that a child is an abused child, report such alle-
    44  gation to the district attorney. This section shall not apply to  infor-
    45  mation  obtained  through  confidential  communications  with clergy and
    46  privileged under law and no report need be made of allegations against a
    47  deceased individual.
    48    2. The willful failure of an individual defined in  paragraph  (a)  of
    49  subdivision  one  of section four hundred twenty-nine-a of this title to
    50  review existing records and information and report allegations contained
    51  therein, as provided by this section, shall be a class A misdemeanor.
    52    § 7. The commissioner of the office of children  and  family  services
    53  shall  review  the  reporting  form used to report suspected child abuse
    54  pursuant to section 429-a of  the  social  services  law,  as  added  by
    55  section  six  of  this act, and, if necessary, shall revise such form to
    56  make it appropriate for reporting to law enforcement agencies.

        S. 8736--A                         10
 
     1    § 8. The business corporation law is amended by adding a  new  section
     2  113 to read as follows:
     3  § 113. Child protection and criminal history searches.
     4    Any  corporation as defined by section one hundred two of this article
     5  shall perform a criminal history search on all individuals that may work
     6  or otherwise have reason in their duties to be engaged  in  unsupervised
     7  activities  with children under the age of eighteen; or individuals that
     8  may participate in activities with children under the age of eighteen in
     9  a setting without constant agency or parental oversight.
    10    § 9. The not-for-profit corporation law is amended  by  adding  a  new
    11  section 116 to read as follows:
    12  § 116. Child protection and criminal history searches.
    13    Any  corporation as defined by section one hundred two of this article
    14  shall perform a criminal history search on all individuals that may work
    15  or otherwise have reason in their duties to be engaged  in  unsupervised
    16  activities  with children under the age of eighteen; or individuals that
    17  may participate in activities with children under the age of eighteen in
    18  a setting without constant agency or parental oversight.
    19    § 10. The religious corporations  law  is  amended  by  adding  a  new
    20  section 28 to read as follows:
    21    §  28.  Child protection and criminal history searches.  Any religious
    22  corporation as defined by section two of this chapter  shall  perform  a
    23  criminal  history  search  on all individuals that may work or otherwise
    24  have reason in their duties to be  engaged  in  unsupervised  activities
    25  with children under the age of eighteen; or individuals that may partic-
    26  ipate in activities with children under the age of eighteen in a setting
    27  without constant agency or parental oversight.
    28    §  11.  The  cooperative  corporations  law is amended by adding a new
    29  section 6 to read as follows:
    30    § 6. Child protection and criminal history searches.  Any  cooperative
    31  corporation  as defined by section three of this article shall perform a
    32  criminal history search on all individuals that may  work  or  otherwise
    33  have  reason  in  their  duties to be engaged in unsupervised activities
    34  with children under the age of eighteen; or individuals that may partic-
    35  ipate in activities with children under the age of eighteen in a setting
    36  without constant agency or parental oversight.
    37    § 12. Section 14 of part J of chapter 62 of the laws of 2003  amending
    38  the  county law and other laws relating to fees collected, as amended by
    39  section 7 of part K of chapter 56 of the laws of  2010,  is  amended  to
    40  read as follows:
    41    §  14.  Notwithstanding  the  provisions of any other law: (a) the fee
    42  collected by the office of court administration  for  the  provision  of
    43  criminal  history  searches  and  other searches for data kept electron-
    44  ically by the unified court system  shall  be  sixty-five  dollars;  (b)
    45  thirty-five dollars of each such fee collected shall be deposited in the
    46  indigent  legal  services  fund established by section 98-b of the state
    47  finance law, as added by section twelve of this act, (c) nine dollars of
    48  each such fee collected shall be deposited in the legal services assist-
    49  ance fund established by section 98-c of the state finance law, as added
    50  by section nineteen of this act, (d) sixteen dollars of  each  such  fee
    51  collected  shall  be  deposited  to the judiciary data processing offset
    52  fund established by section 94-b of the state finance law, [and] (e) the
    53  remainder shall be deposited in the general fund[.], and  (f)  provided,
    54  however,  if  a  criminal history search or other searches for data kept
    55  electronically by the unified court system is being requested by  or  on
    56  the behalf of a not-for-profit corporation, to perform a criminal histo-

        S. 8736--A                         11
 
     1  ry search on an individual that would be working with children under the
     2  age  of  eighteen,  the office of court administration shall, subject to
     3  the approval of the director of the budget, establish protocols to reim-
     4  burse  the  not-for-profit  corporation  for searches conducted and such
     5  reimbursement shall come from the general fund. The division  of  budget
     6  shall also promulgate regulations to prevent not-for-profit corporations
     7  from  over utilizing this reimbursement mechanism and to assure that all
     8  reimbursed search fees are used for criminal history searches  of  posi-
     9  tions that would have direct interaction with children.
    10    §  13.  The  provisions  of  this  act  shall be severable, and if any
    11  clause, sentence, paragraph, subdivision or part of this  act  shall  be
    12  adjudged  by  any  court  of  competent jurisdiction to be invalid, such
    13  judgment shall not affect, impair, or invalidate the remainder  thereof,
    14  but  shall  be  confined in its operation to the clause, sentence, para-
    15  graph, subdivision or part thereof directly involved in the  controversy
    16  in which such judgment shall have been rendered.
    17    §  14.  This  act  shall  take effect on the one hundred eightieth day
    18  after it shall have become a law.
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