Compensate Child Sex Abuse Victims

Section 1. Legislative findings. The Legislature hereby finds that a number of individuals within the state have been unable to seek redress for sexual abuse suffered as a child. Due to the unique nature of child sexual abuse and fears of reprisal, child victims often suffer for years in silence and are often unable to comprehend the fact that they have been victimized. This can lead to repression of the abuse and often results in the victim's confusion, anger and associated difficulties later in life. Due to the nature of abuse a victim has been subject to, and their perceived or actual inability to pursue legal action at the time of the abuse, many victims have been psychologically unable to file a civil litigation claim within the requisite statute of limitations. Due to the amount of time that may have transpired since the instance or

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD04024-01-9

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instances of abuse, the claim may no longer be pursued through typical litigation. In some instances, the sexual abuser may now be impoverished, unavailable, unable to be located, or may have passed away, making it impossible or impractical for the victim to seek redress through the court system. In order to afford those victims an opportunity to seek the redress due to them, the legislature hereby establishes a New York child victim reconciliation and compensation fund, which is intended to provide assistance to those who were sexually abused as children.

§ 2. The state finance law is amended by adding a new article 17 to read as follows:

ARTICLE 17

NEW YORK CHILD VICTIM RECONCILIATION AND COMPENSATION FUND Section 300. Purpose.

301. Definitions.

302. New York child victim reconciliation and compensation fund.

303. Filing of claim.

304. Hearing officers; powers and duties.

305. Claims administrator review.

306. Payments to eligible individuals.

307. Regulations.

§ 300. Purpose. It is the purpose of this article to provide compensation and assistance to any individual who has incurred physical and psychological damages based upon the result of childhood sexual abuse who has not previously been compensated for such alleged abuse and is now barred from pursuing a civil action for damages against the abuser.

§ 301. Definitions. For the purposes of this article, the following terms shall have the following meanings:

1. "claimant" means any individual who:

(a) suffered sexual abuse as defined in subdivision five of this section; and

(b) such abuse occurred prior to the claimant's eighteenth birthday; and

(c) such individual is barred by article two of the civil practice law and rules from instituting a civil action or proceeding; and

(d) such individual has not otherwise received compensation for damages resulting from, or on account of, such sexual abuse by civil settlement, judgment or other private method, including but not limited to arbitration; and

(e) no other individual on behalf of the claimant during the period of the claimant's minority has received compensation for the same claim.

2. "economic loss" means any identifiable pecuniary loss from employment, medical expenses, loss of business, loss of economic opportunities to the extent that such loss would be recoverable had the statute of limitations not expired and for which the claimant has not previously received compensation;

3. "eligible individual" means an individual determined to be eligible for compensation pursuant to section three hundred five of this article;

4. "noneconomic losses" means losses for physical and emotional pain, suffering inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind of nature; and

5. "sexual abuse" means acts proscribed under article one hundred thirty of the penal law, acts constituting incest as defined in section

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255.27, 255.26 or 255.25 of the penal law, or acts including the individual in a sexual performance as defined in section 263.05 of the penal law, or a predecessor statute that prohibited such conduct at the time of the act.

§ 302. New York child victim reconciliation and compensation fund. 1. There is hereby created in the joint custody of the state comptroller and a chief administrator, who shall be appointed as provided in subdivision three of this section, a special fund to be known as the "New York child victim reconciliation and compensation fund."

2. (a) Such fund shall consist of three hundred million dollars transferred from the state asset forfeiture funds and funds secured by payments associated with state sanctioned deferred prosecution agreements currently held on deposit with the office of the Manhattan district attorney.

(b) The office of the Manhattan district attorney shall additionally remit five percent of the total of any future state asset forfeiture funds which have been secured by such district attorney by January first of the subsequent year.

(c) The chief administrator is authorized to accept such amounts as may be contributed by individuals, business concerns, or other entities to carry out the purposes of this article.

3. (a) The chief administrator shall be selected by the state comptroller in consultation with the leaders of the senate and assembly.

(b) The chief administrator shall be qualified by previous experience, training and education to administer such a fund. The chief administrator shall be subject to removal pursuant to the public officers law and shall be subject to the jurisdiction of the joint commission on public ethics for all disciplinary matters. No bond shall be required before entering into service.

(c) Prior to entering into service, the chief administrator shall be required to file a long form ethics filing with the joint commission on public ethics.

4. The chief administrator shall appoint a claims administrator. The claims administrator, in consultation with the chief administrator, shall promulgate procedural and substantive rules for the administration of the fund.

5. (a) The chief administrator shall appoint hearing officers who have a record of substantive experience in the investigation, prosecution and defense of child sexual abuse allegations. Such hearing officers shall receive the same remuneration as hearing officers in a comparable agency.

(b) The chief administrator shall have the power to appoint and pay such experts as sought by hearing officers in aid of the determination.

6. The chief administrator shall have the power to appoint administrative personnel to administer the provisions of this section pursuant to a hiring plan approved by the state comptroller.

7. The claims administrator, in conjunction with the state comptroller, shall be responsible for the administration of funds deposited in the New York child victim reconciliation and compensation fund established pursuant to this section.

§ 303. Filing of claim. 1. The claims administrator shall develop a claim form that claimants shall use when submitting claims under this section and shall ensure that such form may be submitted electronically if determined to be practicable.

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2. A claimant may file a claim for compensation under this article with the claims administrator. The claim shall state the factual basis for eligibility for compensation and the amount of compensation sought.

3. The form required under subdivision one of this section shall be under oath and shall provide the following information:

(a) a narrative of the events containing Information from the claimant concerning the identity of the alleged abuser, the physical or mental harm that the claimant suffered, is suffering from, and/or may reasonably be expected to suffer in the future.

(b) information from the claimant concerning any possible economic losses that the claimant has suffered or is expected to suffer as the result of sexual abuse.

(c) information regarding collateral sources of compensation the claimant has received or is entitled to receive as a result of such abuse.

(d) any other material that the claimant wishes to present in aid of the determination of the claim.

§ 304. Hearing officers; powers and duties. 1. Proceedings conducted pursuant to this article shall be presided over by a hearing officer who shall have substantial experience relating to the litigation, investigation, prosecution or defense of child sexual abuse claims.

2. The hearing officer shall set the time and place of any hearing and shall give reasonable notice to the parties.

3. The hearing officer shall conduct a fair and impartial hearing and take all action necessary to avoid delay in the disposition of proceedings and to maintain order. The hearing officer shall have all powers necessary to those ends, including, but not limited to, the power to:

(a) administer oaths and affirmations;

(b) cause subpoenas to be issued as authorized by law;

(c) rule upon offers of proof and receive evidence;

(d) order or limit discovery as the interests of justice may require;

(e) regulate the course of the hearing and the conduct of the parties and their counsel;

(f) hold conferences for the settlement or simplification of the issues by consent of the parties;

(g) consider and rule upon all procedural and other motions appropriate in adjudicative proceedings;

(h) take notice of any material fact not appearing in evidence in the record that is properly a matter of judicial notice;

(i) make and file determinations to the claims administrator; and

(j) exercise such other authority as is necessary to carry out the responsibilities of the hearing officer under this section.

4. Claimants and defendants taking part in a proceeding under this section shall have:

(a) the right to be represented by an attorney, and upon a showing of indigence, may obtain appointed counsel;

(b) the right to present evidence, including the presentation of witnesses and documents, expert testimony; and

(c) any other due process rights deemed appropriate by the claims administrator.

§ 305. Claims administrator review. 1. The claims administrator shall review all findings made by a hearing officer in each case submitted under this section and shall determine:

(a) whether the defendant is responsible for the conduct alleged by the claimant; and

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(b) whether the claimant is an eligible individual under this section.

2. A claimant shall be deemed an eligible individual under this section when the claim administrator determines the claimant:

(a) was a victim of the alleged conduct;

(b) is an individual who has suffered economic or noneconomic loss as a result of sexual abuse which occurred within the state; and

(c) the individual has been unable to pursue a civil claim for damages resulting from the loss described in paragraph (b) of this subdivision due to the failure to file a judicial claim for damages resulting from such abuse within the requisite statute of limitations.

3. The following factors shall be considered in determining the amount of compensation to be paid to such eligible individuals:

(a) the nature, extent and frequency of the sexual abuse that was found to have occurred;

(b) the extent of the harm to the claimant, including any economic and noneconomic loss; and

(c) the extent to which aggravating circumstances are alleged, such as:

(i) the age of the claimant;

(ii) the severity of the abuse;

(iii) the location of the abuse;

(iv) threats of physical harm and/or retaliation;

(v) significant, verifiable and life altering psychological damage; and/or

(vi) any other significant information relevant to the claim or the defense of the claim.

4. No later than ninety days after that date on which a claim is filed under section three hundred three of this article, unless good cause can be demonstrated, the claim administrator shall complete a review, make a determination, and provide written notice to the claimant, with respect to the matters that were the subject of the claim under review. Such a determination shall be final and not subject to judicial review.

5. The claims administrator may not include punitive damages in any compensation paid under a claim under this article.

6. The claims administrator shall reduce the amount of compensation determined under this section solely by the amount of any collateral compensation the claimant has received or is entitled to receive as a result of such sexual abuse.

§ 306. Payments to eligible individuals. 1. No later than twenty days after the date on which a determination is made by the claims administrator regarding the amount of compensation due a claimant under this article, the claims administrator shall authorize payment to such claimant of the amount determined with respect to such claimant.