Senate Bill 199 Implications and Implementation for Law

Senate Bill 199 Implications and Implementation for Law Enforcement Skye David, Staff Attorney for North Carolina Coalition Against Sexual Assault; Lobbyist for Child Advocacy Centers of North Carolina and NCCASA

Highlights of New Legislation (S 199; SL 2019 -245) ● ● ● ● Increases prosecutorial options when there are delayed reports of juveniles who are victims of violent offenses, sexual offenses, or child abuse. Expands the duty to report child abuse. Protects children from online predators. Extends the statute of limitations for a civil action for child sexual abuse so that a plaintiff has until age twenty-eight to commence an action; and Requires training related to child sexual abuse and sex trafficking for school personnel. Closes the incapacitation loophole Closes the withdrawal of consent loophole

Mandatory Reporting to Law Enforcement 14 -318. 6(b). Any person 18 years or older who knows or should have reasonably known that a juvenile has been or is the victim of a violent offense, sexual offense, or misdemeanor child abuse under G. S. 14 -318. 2 shall immediately report the case of that juvenile to the appropriate local law enforcement agency in the county where the juvenile resides or is found. ● Crimes Included: ● Serious Bodily Injury ● Serious Physical Injury ● Sexually violent Offense (Including attempt, solicitation, or conspiracy to commit) ● Violent Offenses: any offense that inflicts serious bodily injury or serious physical injury that is not by accident (including attempt, solicitation or conspiracy to commit)

Reporting Details ● ● Reports can be made orally or by telephone. The report shall include information as is known to the person making it: ○ ○ ○ ○ o Name, address, age of juvenile; o Name and address of juvenile’s parent, guardian, or caretaker; o Name, address, and age of person who committed the reported offense; o Location of reported offense; o Names and ages of other juveniles present or in danger; o Current whereabouts of juvenile (if not juvenile’s home address); o Nature and extent of any injury or condition resulting from the reported offense; o Any other information in which the officer/report taker feels is relevant for establishing law enforcement involvement

Law Enforcement Duty to Report ● Duties Established from Mandated Reporting Changes ○ If any law enforcement officer finds as a result from a report that a juvenile may be abused, neglected, or dependent (7 B-101) the law enforcement officer shall: ○ Make an oral report as soon as practicable; and ○ Make a subsequent written report of the findings to the director of the department of social services within 48 hours after discovery of evidence

What Constitutes a Mandated Report? 1. 2. 3. 4. A cause to suspect Abuse or neglect Of a juvenile By a parent, guardian, caretaker, or custodian 1. This law includes “any adult entrusted with the child’s care” rather than only adult relatives

A Cause to Suspect ● This one is easy. Just like it reads – completely expansive. Open ended. Whether to report or not does not usually hinge on whether you have cause to suspect or not.

Abuse or Neglect, Dependency or Maltreatment Abuse (NCGS 7 B-101(1)) ● ● ● ● Inflicts, allows other to inflict a serious physical injury that is not accidental Creates or allows other to create a sub. risk that child will suffer physical injury Use/allow cruel or grossly inappropriate procedures or devices to modify behavior Commits/permits other to commit sex offenses Commits/permits the offense of unlawfully selling, surrendering, or purchasing child Create/allow serious emotional damage to the child Encourage, direct, approve delinquent acts of moral turpitude Commits/allows trafficking

Abuse or Neglect, Dependency or Maltreatment Neglect (NCGS 7 B-101(15)) ● ● ● Does not receive proper care, supervision, or discipline Has been abandoned Not provided necessary medical care Not provided necessary remedial care Lives in an environment injurious to child’s welfare Has been placed for care or adoption in violation of law

Abuse or Neglect, Dependency or Maltreatment Dependency (NCGS 7 B-101(9)) ● A child is dependent if they need assistance or placement because: ○ ○ ○ No parent, guardian, custodian is responsible for the child’s care/supervision; OR The child’s parent, guardian, or custodian is not able to provide for the child’s care of supervision and does not have an appropriate alternative

Abuse or Neglect, Dependency or Maltreatment ● ● ● The Juvenile Code doesn’t define this one. It’s mostly used when a child dies DSS determines if it was via maltreatment in order to establish files on other remaining children.

Exemptions from Reporting Unlike G. S. 7 B-310, which says that privilege is not grounds for failure to report to DSS, this provision explicitly states that if a conversation is privileged and that privilege would prevent a person from reporting, this statute does not require that person to report. ● Exempt: Those exempted from reporting: ○ Attorneys with attorney-client privilege ○ Agents of rape crisis centers and sexual assault agencies ○ Agents of domestic violence service providers ○ Counselors/Therapists/Social Workers ○ Psychologists

Statute of Limitations Changes While there is no statute of limitations for felonies in North Carolina, the current statute of limitations for misdemeanors is only two years. Part II of the Act expands the statute of limitations to ten years for the following offenses: 1. 2. 3. 4. 5. N. C. G. S. 7 B-301(b) – failure to report abuse, neglect and/or dependency N. C. G. S. 14 -27. 33 – sexual battery N. C. G. S. 14 -202. 2 – indecent liberties between children N. C. G. S. 14 -318. 2 – misdemeanor child abuse N. C. G. S. 14 -318. 6 – failure to report crimes against juveniles

High Risk Sex Offenders: Old Law G. S. 14 -202. 5 bans the use of commercial social networking Web sites by registered sex offenders. In 2017 this statute was found to be unconstitutional by the United States Supreme Court, holding that while protecting children from sex crimes is a legitimate governmental interest, the statute impermissibly restricts lawful speech in violation of the First Amendment. See, Packingham v. North Carolina, 582 U. S. ___ (2017).

High Risk Sex Offenders: New Law ● New law makes it unlawful for a high-risk sex offender to do any of the following online: ○ ○ ○ To communicate with a person that the offender believes is under 16 years of age. To contact a person that the offender believes is under 16 years of age. To pose falsely as a person under 16 years of age with the intent to commit an unlawful sex act with a person the offender believes is under 16 years of age. To use a Web site to gather information about a person that the offender believes is under 16 years of age. To use a commercial social networking Web site in violation of a policy posted in a manner reasonably likely to come to the attention of users, prohibiting convicted sex offenders from using the site.

Civil Statute of Limitations ● This new law also extends the civil statute of limitations for a victim to file a civil claim for child sexual abuse so plaintiffs now have until age twenty-eight to commence an action (There is no statute of limitations for criminal felony level violations).

Date Rape/Drugging Drink Changes ● ● Updates G. S. 14 -401. 11, which makes it illegal to distribute food, which contains anything that could be injurious to a person’s health, to include beverages. Among other things, this will ensure that offenders who add something to a person’s drink in order to sexually assault him or her can be liable under this statute.

Right to Revoke Consent ● § 14 -27. 20. Definitions. The following definitions apply in this Article: (1 a) Against the will of the other person. – Either of the following: ○ a. Without consent of the other person. ○ b. After consent is revoked by the other person, in a manner that would cause a reasonable person to believe consent is revoked. …. "

Incapacitation Changes ● Mentally incapacitated. – A victim who due to any act is rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act. " ○ This is a significant law change from only allowing second degree rape charges for those who are incapacitated due to someone else’s actions.

School Training Requirements ● Requires that local boards of education and charter schools adopt a sex trafficking training program for school personnel who work directly with students in grades kindergarten through 12 by January 1, 2020 with training to begin with the 2020 -2021 school year.

Questions, Comments, Concerns with Implementation? Contact me at skye@nccasa. org or CACNC Attorney Audra Padget at audra@cacnc. org