Limitation: A look at the state of North Carolina

A number of significant changes to the law in the state of North Carolina have now taken effect. The changes looked to modernise and strengthen the existing laws on sexual assault.

Before the passing of the recent laws, there was no statute of limitations for felony sex crimes in any event. A two year statute of limitations applies to misdemeanour crimes.

The statute of limitations for civil actions for sexual abuse previously provided that adults must file a claim within three years of the event, and for minors, three years from the date of their eighteenth birthday, much like in England and Wales.

There were, however, exceptions which would allow a plaintiff to argue they suffered repressed memories and therefore were unaware of the abuse. This could constitute “delayed discovery” of the injury and therefore the viability of arguing the statute of limitations should not start to run until the abuse was “discovered”. In some respects, this would be an argument not unlike that of the discretion the courts can apply in England and Wales pursuant to s33 of the Limitation Act 1980.

The new laws implemented make the following provisions:

  • It is now mandatory for any person aged 18 years or older to report any violent or sexual offence against a juvenile, or any misdemeanour child abuse to the appropriate law enforcement agencies, where they know or ought to know about said abuse or offence. Failure to do so constitutes an offence in itself.
  • Misdemeanour crimes involving abuse against children now have a statute of limitations of 10 years.
  • It is an offence for a high-risk sex offender to communicate or contact a person online that the offender believes to be aged 16 or under. It is also an offence for said high-risk sex offender to pose falsely as a person under 16 years with intent to commit an unlawful sex act with a person the offender believes to be under 16 years.
  • Commercial social networking sites have to make reasonable efforts to prevent high-risk sex offenders from using their sites to avoid civil liability for damages arising out of the sex offender’s use of the social networking sites.
  • Plaintiffs now have until the age of 28 to file a civil action for child sexual abuse against a defendant, whereas previously plaintiffs only had until their twenty-first birthday.
  • Plaintiffs also have a two year extension to bring a civil claim for child sexual abuse. The two year period commences from the date of the conviction of a defendant for a felony sexual offence.
  • Plaintiffs not falling into the categories above are afforded a limitation window effective from 1 January 2020 to 31 December 2021. This applies to those whose claims were previously time-barred.
  • Local boards of education are required to adopt and implement a child sexual abuse and sex trafficking training programme for school personnel working with children from kindergarten through to age 12.
  • It is now possible for consent to sexual activity to be revoked. This overrules the state’s 1979 Supreme Court case of State v Way, which held that once consent to sexual intercourse is given, it cannot be withdrawn.
  • A victim no longer needs to be mentally incapacitated due to any act committed upon them, or by a substance being provided to them without consent. Now any act which renders the victim “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act” means that the sexual activity would be rendered unlawful. This overturns a 2008 ruling of State v Haddock, which previously meant that if someone became incapacitated through their own actions, i.e. due to voluntary consumption of alcohol, sexual activity would be lawful.

The changes to the law are no doubt welcomed by the North Carolina Coalition Against Sexual Assault. Along with state senators, they had lobbied for some time for the laws to be changed. Skye David, an attorney for the advocacy group, stated, “In the past [the proposed changes to the law] had been led by one political party, but this year we had a strong coalition of members who were bipartisan and bicameral”.

The amendments to the statute of limitations for civil claims means that those whose claims were previously time-barred may now bring an action in 2020. It is anticipated that North Carolina will see an increase in the number of these lawsuits, similar to other states where limitation windows have been implemented.


Munro_Amanda_web

Written by Amanda Munro at BLM

amanda.munro@blmlaw.com

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