Summary of Proposed Changes
to the
Kentucky Criminal Child Sexual Abuse Laws
HB 211
Background 2008
Under Kentucky law any crime that is a felony has no statute of limitations (SOL). Generally, any crime that is a misdemeanor has a 1 year statute of limitation (SOL) from the time a crime is committed. A SOL is the time an individual has to bring charges against another person.
The SOL for civil cases is 1 year or in the case of a minor 1 year from the individual’s 18th birthday. The SOL for civil cases varies depending on the underlying cause of action. (See KRS Chapter 413 below, for example.)
In the last several of years Kentucky’s civil SOL on child sexual abuse has been extended to
These changes in the civil law reflect, to some degree, the fact that most children do not speak to anyone about what has happened until years later if ever.
Additional background on the Kentucky laws is as follows:
1. First degree of any law is a more serious offense.
2. There may be several degrees under many laws including rape, sodomy and sexual abuse.
3. Felonies are designated as offenses from Class A (most serious) to Class D.
4. Misdemeanor penalties range from Class A (highest) to class B.
There are 4 basic changes being proposed in HB 211. Several other changes must be made if these four (4) things are changed to bring other statutes into conformity with these changes.
The legislature made several important changes in 2006. What is contained here is needed to take Kentucky laws another step.
The source for much of the statistics about the laws in other states was found at www.childwelfare.gov. The differences in how the laws are written make comparison difficult so the reader will find the use of the words “approximately” in several places in this text.
Change One:
If passed HB 211 would change the ages in child sexual abuse in the first degree. At the present child sexual abuse in the first degree applies to a child less than 12 years old and this bill would increase the age up to 16 years old. This would bring a 12, 13, 14 and 15 year old to be covered by first degree abuse. First degree abuse is a class D felony and therefore has no SOL.
Why this change:
There are multiple abusers walking in our communities today because by the time the child remembers or understands what has happened it is too late to bring charges. Most child abusers will abuse multiple children. Some studies say an average of 75 and other studies place the count in the hundreds for each abuser. Bringing abusers into the court system may not change them but getting a conviction and the name on the sexual abuser registry may help to protect other children.
12 and 13 year olds are still in elementary or middle school but it is only a misdemeanor to sexually abuse them. Even then the charges at the present time must be brought within 1 year. When it doesn’t happen it leaves the abuser free to continue to abuse and no way for other parents to even know this person is out there.
Other state and federal law:
The Federal law CAPTA (the Child Abuse Prevention and Treatment Act) defines a child as someone under 18 years old. At least 9 states include the age of 18 in their state child abuse laws. The nine (9) states are Arkansas, California, Massachusetts, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, and Virginia.
A recent trial (October 2007) in Colorado found a man guilty of sexual abuse for touching the breasts and buttocks of a 12 year old and two (2) 14 year olds. It occurred in a public setting. This would have been a misdemeanor in Kentucky but was a felony with a prison sentence of 6 years on each count in Colorado. They were not concurrent years to be served.
Change two:
Adding to child sexual abuse in the first degree, a person is guilty of sexual abuse in the first degree when:
At the present time an adult that masturbates in front of a child is not guilty of child abuse but only of indecent exposure. This change would bring the offense into this area.
Why this change:
Examples exist that show children can be impacted by this as much as other forms of abuse. A training website for foster parents (www.parenttoolbox.com) lists the following as abuse: (Bold added)
According to the American Psychological Association (APA) at www.apa.org child sexual abuse is:
“… Child sexual abuse may include fondling a child's genitals, masturbation, oral-genital contact, digital penetration, and vaginal and anal intercourse….”
Other states:
This is addressed in other states in two slightly different ways. The first direct approach is found in Florida, Colorado and Georgia law which contain the word masturbation in the child sexual abuse laws. At least 10 other states contain language such as “watching live sexual activity” (Arkansas), “causing a child to view or listen to sexual activity” (Wisconsin), “exposing the genitals to a child” (Washington) or “exposing a child to nudity-oriented matter: (Ohio).
Change three:
The penalty for not reporting sexual abuse at the present time is a misdemeanor (found in KRS 620.099) and requirement to report is located in 620.030. Like all misdemeanors after one (1) year the statute of limitations makes it impossible to bring charges under this law. The change here would take the present class B misdemeanor and make the second failure to report a class A misdemeanor and with a third offense of not reporting a class D felony.
Why this change:
Under the existing law (KRS 510.015)
“…a person who commits a third or subsequent misdemeanor offense under this chapter, except for violations of KRS 510.150, may be convicted of a Class D felony. …” KRS 510.150 is second degree indecent exposure.
We are recommending amending 620.099 to maintain the current penalty of Class B misdemeanor, but give a gradual increase for additional failures to report.
Other states:
Approximately 46 states have at least a misdemeanor associated with failure to report abuse of children. Illinois and Guam make a second offense a felony while in Arizona, Florida and Minnesota a misdemeanor can be upgraded to a felony for a first offense if the offense committed by the perpetrator is serious. Upon conviction a mandated reporter can be required to serve from 10 days to 5 years in jail and be fined $100. to $5,000. In seven states the mandated reporter is also civilly liable for any damages for failure to report. (See: Child Welfare Information Gateway at www.childwelfare.gov)
Change four:
The statute of limitations (SOL) for child sexual abuse in Kentucky is 1 year after the last offense for any misdemeanors. Most children are not able to share what happened at the time it occurs. Studies show that between one-half and ninety percent (90%) never tell anyone. A common time for a survivor to become aware of the abuse, if it has been repressed, is around the mid-life changes at 40 years of age. This proposed change would extend the SOL for criminal offenses to the same as the changes for civil suits. The proposal is to make the SOL:
Conclusion:
The recommended change to 510.110 first degree child sexual abuse requires changes to 510.111 and 510.112 which are second and third degree sexual abuse. The changes here are to the ages and conditions and not to the penalties to these statues.
See: www.lrc.ky.gov and click on Kentucky Law in the left hand margin for more information about present laws.