Topic:
CRIMINAL PROCEDURE; STATUTE OF LIMITATIONS; SEX CRIMES; RAPE;
Location:
CRIMINAL PROCEDURE;
Scope:
Court Cases; Other States laws/regulations;

OLR Research Report


March 12, 2002

 

2002-R-0258

STATUTES OF LIMITATIONS FOR SEXUAL ASSAULT CRIMES IN NEW ENGLAND, NEW YORK, AND NEW JERSEY

 

By: Jason K. Matthews, Research Fellow

You asked us to describe (1) the statutes of limitations for sexual assault in the New England States, New York, and New Jersey; (2) identify recent changes that have expanded such statutes; (3) indicate whether it is explicitly clear that the statutes apply retroactively; and (4) summarize the courts' interpretation of the retroactive application of the statutes.

SUMMARY

The statutes of limitations for sexual assault crimes in New England, New York, and New Jersey, vary greatly, depending on the state, the severity of the offense, whether there are aggravating circumstances, the victim's age, and whether the state has an extension for particular circumstances.

For the most serious crimes, there is no statute of limitations in New Jersey, Rhode Island, and Vermont. For the other states, the statute of limitations is:

1. Massachusetts—15 years;

2. Maine—six years, but there is no statute of limitations if the victim is under age 16;

3. New Hampshire—six years, but for victims under age 18, a prosecution can occur at anytime within 22 years of the victim's 18th birthday;

4. New York—five years, but if the victim was under age 18, the statute of limitations will not start until the child has reached age 18 or the offense is reported to a law enforcement agency or central register of child abuse, whichever occurs earlier.

Five states—Maine, Massachusetts, New Hampshire, New Jersey, and Vermont—have recently increased the statutes of limitations for sexual assault crimes.

The Maine, New Hampshire, and New Jersey laws address the retroactivity of changes to the statute of limitations. The Maine and New Jersey law apply to all future crimes and all prior crimes where the previous statute of limitation has not yet run out. The New Hampshire law applies to victims injured before, on, or after its effective date.

In four states—Massachusetts, New Hampshire, New Jersey, and Vermont—the courts have upheld the retroactive application of changes to the statutes of limitations, provided certain conditions are met.

MAINE

The statute of limitations for gross sexual assault is six years. The law defines “gross sexual assault” as a sexual act committed in one of 12 aggravating circumstances. These include the use of force or threat, the assault of a victim who is under age 14 and is not the perpetrator's spouse, and the perpetrator's use of drugs to impair the victim's perception (Me. Rev. Stat. Ann. 17-A 253).

The statute of limitations for sexual abuse of a minor is three years, but it is six years if the state proves that the perpetrator was more than 10 years older than the victim or knew that they were related. Also, if the victim is under age 16, there is no statute of limitations for incest, unlawful sexual contact, sexual abuse of a minor, or rape or gross sexual assault. “Sexual abuse of a minor” can occur under any of four circumstances. It includes a sexual act between a perpetrator and a 14-or 15-year old victim who is not his spouse and is at least five years younger than the perpetrator (Me. Rev. Stat. Ann. 17-A 8, 253, 254).

The statute of limitations for unlawful sexual contact is three years, but it is six years if (1) the victim is under age 18 and the perpetrator is a parent, stepparent, foster parent, guardian or other person responsible for the victim's long-term care; (2) the victim is forced to submit; or (3) the state can prove sexual penetration. “Unlawful sexual contact” is sexual contact that occurs in any of 10 aggravating circumstances. These include any circumstance in which the victim (1) does not consent, (2) is unconscious or otherwise physically unable to resist sexual contact, or (3) suffers from a mental disability that renders her incapable of understanding the nature of the contact (Me. Rev. Stat. Ann. 17-A 8 and 255).

The statute of limitations is three years for sexual misconduct with a child under age 14. The crime occurs when the perpetrator is at least age 18 and shows a victim under age 14 sexually explicit material in order to encourage the victim to engage in a sexual act or sexual contact (Me. Rev. Stat. Ann. 17-A 8 and 258).

For any of the above crimes, the statute of limitations will not run (1) for a maximum of five years when the perpetrator is not in Maine or (2) while a prosecution against the perpetrator for the same crime, based on the same conduct, is pending in Maine.

Legislation Expanding the Statute of Limitations

In 1991, the legislature amended the statute of limitations and allowed prosecution at any time if the victim was under age 16 when incest, rape, or gross sexual assault were committed (1991 Me. Laws 585 2). In 1999, it added unlawful sexual contact and sexual abuse of a minor to this list (1999 Me. Laws 438 1). Both laws apply to future crimes and prior crimes where the previous statute of limitation had not run out (1991 Me. Laws 585 3).

MASSACHUSETTS

The statute of limitations is 15 years for rape, rape of a child under age 16, rape of a child, assault with the intent to commit rape, and assault of a child under age 16 with intent to commit rape. In cases where the victim was under age 16, the statute of limitations will not begin to run until the victim reaches age 16 or the violation is reported to a law enforcement agency, whichever occurs earlier. This statute of limitations also applies to allegations of conspiracy and accessory to the above crimes (Mass. Gen. Laws Ann. Ch. 277 63).

“Rape” is defined as sexual, or unnatural sexual, intercourse with a person while (1) using force, (2) threatening bodily injury, (3) acting with someone else or (4) committing any of 12 listed crimes (Mass. Gen. Laws Ann. Ch. 265 22).

“Rape of a child under age 16” occurs when the perpetrator uses either force or the threat of bodily injury to have sexual, or unnatural sexual, intercourse with a child under age 16 (Mass. Gen. Laws Ann. Ch. 265 22A).

“Rape of a child” occurs when the perpetrator has sexual, or unnatural sexual, intercourse with a child under age 16 (Mass. Gen. Laws Ann. Ch. 265 23).

Legislation Expanding the Statute of Limitations

In 1985, the legislature increased the statute of limitations for the following crimes from six to 10-years: (1) rape of a child under age 16, (2) rape of a child, (3) assault with intent to commit rape, and (4) assault on a child under age 16 with intent to commit rape.

In 1987, the legislature added rape to the crimes for which there is a 10-year statute of limitation. The law also added the provision extending the time period for victims who were under age 16 at the time of the offense.

In 1996, the legislature extended the statute of limitations for the above crimes from 10 to 15 years.

Caselaw Interpreting Retroactivity of the Statute of Limitations

In 1991, the Massachusetts Appellate court held that the court could retroactively apply a change in a statute of limitations to those offenses that were not time-barred when the change occurred (Commonwealth v. Cogswell, 31 Mass. App. Ct. 691 (1991) (See also Commonwealth v. Rocheleau, 404 Mass. 129, 130 (1989) citing Commonwealth v. Bargeron, 402 Mass. 589, 592 (1988)).

NEW HAMPSHIRE

The statute of limitations is six years for aggravated felonious sexual assault and for felonious sexual assault. “Aggravated felonious sexual assault” is sexual penetration under any of 13 circumstances. This includes using or threatening to use physical force or having sex when the victim says “no.” “Felonious sexual contact” is sexual contact during any of the circumstances that apply to aggravated felonious sexual assault or three additional circumstances (N.H. Rev. Stat. Ann. 632-A:3).

The statute of limitations is one year for sexual assault. “Sexual assault” is sexual contact with anyone age 13 or older under any of the circumstances that apply to aggravated felonious sexual assault (N.H. Rev. Stat. Ann. 625:8 and 632-A:4).

For all the above offenses, the statute of limitations does not run whenever (1) the perpetrator is not in the state or has no reasonably known residence or work in the state or (2) a prosecution based on the same conduct is pending against the perpetrator in New Hampshire. Finally, for victims under age 18, a prosecution can occur at anytime within 22 years of the victim's 18th birthday (N.H. Rev. Stat. Ann. 625:8).

Legislation Expanding the Statute of Limitations

In 1986, the legislature amended language to the statute of limitations for victims under age 18. The 1986 law required that the statute of limitations begin to run when the victim turned age 18. Since the statute of limitations was six years, it would run for six years after the victim's 18th birthday. In 1990, the legislature changed this to within 22 years of the victim's 18th birthday. The legislature intended the act to apply to victims injured before, on, or after April 27, 1990 (1990 N.H. 213:4).

Caselaw Interpreting Retroactivity of the Statute of Limitations

The New Hampshire Supreme Court held that changes to the statute of limitations could be applied retroactively (State v. Hamel, 138 N.H. 392 (1994)). In New Hampshire, if a law affects substantive rights and liabilities, it is presumed to apply only to future cases. But, laws that affect procedural rights usually apply retroactively. The court found that this statute was procedural and thus applied it retroactively (see also State v. Martin, 138 N.H. 508 (1994)).

NEW JERSEY

There is no statute of limitations for sexual assault. “Sexual assault” is aggravated sexual assault and sexual assault. “Aggravated sexual assault” is sexual penetration in any of 10 circumstances. These include any circumstance in which the victim is under age 13 or the perpetrator (1) is related to the victim, (2) supervises the victim, or (3) is armed. “Sexual assault” involves (1) sexual contact between a victim under age 13 and a perpetrator who is at least four years older and (2) sexual penetration in any of seven circumstances. These seven circumstances include any circumstance involving (1) the use of force but in which the victim does not sustain severe injury, (2) a victim at least age 16 but less than age 18, or (3) the victim is related to the perpetrator (N.J. Stat. Ann. 2C:14-2, 2a, 2b, and 2c).

The statute of limitations for aggravated criminal sexual contact or criminal sexual contact is five years. But, if the victim was under age 18, the statute of limitations is five years after the victim's 18th birthday or within two years of the discovery of the offense by the victim, whichever is later. “Aggravated criminal sexual contact” is sexual contact in one of the circumstances that apply to aggravated sexual assault. “Criminal sexual contact” is sexual contact in one of the circumstances that apply to sexual assault (N.J. Stat. Ann. 2C:14-2, 3a, and 3b).

The statute of limitations does not run (1) whenever a prosecution against the accused for the same conduct is pending in New Jersey or (2) for any person fleeing from justice.

If the prosecution is supported by physical evidence that identifies the perpetrator by DNA testing or fingerprint analysis, time does not start to run until the state has possession of both the physical evidence and DNA or fingerprint necessary to establish the identification of the perpetrator (2001 N.J. Sess. Law Ch. 308, effective January 3, 2002).

Legislation Expanding the Statute of Limitations

In 1986, the legislature added the exception for a victim under age 18. This law stated that the statute of limitations was five years or two years after the victim turned age 18, whichever was later.

In 1989, the legislature extended the time for a prosecution for a victim under age 18 to within five years after the victim turned age 18.

In 1996, the legislature changed the statute of limitations to permit prosecution for sexual assault at any time. This law stated the act took effect immediately [May 1, 1996] and applied to all “offenses not yet barred from prosecution under the statute of limitations as of the effective date” (1996 N.J. Laws 22 2).

Caselaw Interpreting Retroactivity of the Statute of Limitations

In 1988, the New Jersey Superior Court, Appellate Division, held that an extended statute of limitations may constitutionally apply to a crime committed before its effective date, if that date is before the expiration of the prior statute of limitations (State of New Jersey v. Nagle, 226 N.J. Super. 513 (1988)). The court followed the reasoning of Judge Learned Hand, who wrote “for the state to assure a man that he had become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest; but while the chase is on, it does not shock us to have it extended beyond the time first set, or if it does, the stake forgives it” (Falter v. United States, 23 F.2d 420, 425-426 (2d Cir. 1928)).

NEW YORK

The statute of limitations is five years for (1) first, second, and third- degree rape; (2) first, second, and third-degree sodomy; (3) first, second, third, and fourth-degree aggravated sexual; (4) first-and second-degree sexual conduct against a child; and (5) facilitating a sex offense with a controlled substance (N.Y. Crim. Pro. Law 30.10).

For first- and second-degree sexual conduct against a child, a prosecution can occur within five years of the most recent act of sexual conduct.

The statute of limitations is two years for sexual misconduct, forcible touching, and second- and third-degree sexual abuse.

For all of the above crimes, if the victim was under age 18, the statute of limitations will not start until the child has reached age 18 or the offense is reported to a law enforcement agency or central register of child abuse, whichever occurs earlier.

The statute of limitations will not run for a maximum of five years when the perpetrator was continuously outside the state or could not be located through due diligence.

Sexual Assault Crimes Defined

“First-degree rape” is sexual intercourse (1) involving force or lack of consent because the victim is helpless, (2) with a child under age 11, or (3) between a person older than age 18 and a victim less than age 13 (N.Y. Penal 130.35, see also second-and third-degree rape, 130.30 and 130.25).

“First-degree sodomy” is deviate sexual intercourse (1) involving force or lack of consent because the victim is physically helpless, (2) with a child under age 11, or (3) between a person older than age 18 and a victim less than age 13 (N.Y. Penal 130.50, see also second- and third-degree sodomy, 130.45 and 130.40).

“First-degree sexual abuse” is sexual contact (1) involving force or lack of consent because the victim is physically helpless or (2) with a child under age 11 (N.Y. Penal 130.65, see also second- and third-degree sexual abuse, 130.60 and 130.55).

“First-degree aggravated sexual abuse” occurs when a perpetrator inserts a foreign object in the vagina, urethra, penis or rectum of another person causing physical injury in any circumstance where (1) force was used, (2) the victim did not consent because of being physically helpless, or (3) the victim was under age 11. Valid medical conduct does not violate this statute (N.Y. Penal 130.70, see also second, third, and fourth-degree aggravated sexual abuse, 130.67, 130.66, and 130.65-a).

“First-degree sexual conduct against a child” involves victims (1) under age 11 or (2) under age 13 and perpetrators over age 18. The conduct must occur for over three months and include two or more acts of sexual contact with at least one act of intercourse, deviate sexual intercourse, or aggravated sexual contact (N.Y. Penal 130.75, see also second-degree sexual conduct against a child, 130.80).

“Facilitating a sex offense with a controlled substance” is knowingly giving someone a controlled substance with the intent to commit a felony sex offense and either attempting or committing the sex offense (N.Y. Penal 130.90).

“Sexual misconduct” is (1) having sexual intercourse or deviate sexual intercourse with another person without the person's consent or (2) engaging in sexual conduct with an animal or a dead body (N.Y. Penal 130.20).

“Forcible touching” is intentionally and for no legitimate purpose touching a person's sexual or other intimate parts to either (1) degrade or abuse the person or (2) gratify the perpetrator's sexual desire. Forcible touching includes squeezing, grabbing, and pinching (N.Y. Penal 130.52).

RHODE ISLAND

There is no statute of limitations for rape, first-degree sexual assault, and first- and second-degree child molestation sexual assault (R.I. Gen. Laws 12-12-17).

The statute of limitations is three years for second- and third-degree sexual assault.

Sexual Assault Crimes Defined

The rape statute was repealed in 1981 and re-enacted as first-degree sexual assault (1981 Pub. Law 119 1). “First-degree sexual assault” is sexual penetration involving a perpetrator who (1) knows that the victim is mentally incapacitated, mentally disabled, or physically helpless; (2) uses force or coercion; (3) is able to overcome the victim by concealment or surprise; or (4) uses medical treatment for sexual arousal, gratification, or stimulation (R.I. Gen. Laws 11-37-2).

“First-degree child molestation sexual assault” is sexual penetration of a person age 14 or younger (R.I. Gen. Laws 11-37-8.1).

“Second-degree child molestation sexual assault” is sexual contact with a person age 14 or younger (R.I. Gen. Laws 11-37-8.3).

“Second-degree sexual assault” is sexual contact by a perpetrator who (1) knows that the victim is mentally incapacitated, mentally disabled, or physically helpless; (2) uses force or coercion; (3) is able to overcome the victim by concealment or surprise; or (4) uses medical treatment for sexual arousal, gratification, or stimulation (R.I. Gen. Laws 11-37-4).

“Third-degree sexual assault” is sexual penetration of a person between ages of 14 and 16 by a person age 18 or older (R.I. Gen. Laws 11-37-6).

VERMONT

There is no statute of limitations for aggravated sexual assault. “Aggravated sexual assault” is sexual assault in any of nine circumstances. These include situations in which the perpetrator (1) causes serious bodily injury to the victim at the time of the assault, (2) physically retrains the victim with the help of one or more persons, or (3) assaults the victim during a kidnapping (VT. Stat. Ann. 13 4501 and 3253).

The statute of limitations for sexual assault is six years. But, if the victim is age 16 or younger, prosecution must occur by the victim's 24th birthday or six years from the date the offense is reported, whichever is earlier. Sexual assault is separated into two main categories with several sub-categories. First, engaging in sex act (1) with another person under one of six circumstances including where force or coercion is used. Second, engaging in a sex act when the victim is under age 16 and is entrusted to the perpetrator's care by law or the perpetrator is at least age 18, resides in the victim's home, and is a parental figure to the victim (VT. Stat. Ann. 13 4501 and 3252).

Legislation Expanding the Statute of Limitations

In 1985, the legislature increased the statute of limitations for aggravated sexual assault to six years.

In 1989, the legislature increased the statute of limitations for aggravated sexual assault from six years to anytime after the date of the offense. Also, it increased the statute of limitations for sexual assault from three to six years. Finally, it added the extension for victims age 16 or younger and eliminated the old extension of six years from the date of the offense.

Caselaw Interpreting Retroactivity of the Statute of Limitations

In 1991, the Vermont Supreme Court held that the 1985 amendment could be applied retroactively for a 1987 prosecution of a crime committed in 1985 (Vermont v. Petrucelli, 156 Vt. 382 (1991). The court looked to a Vermont statute that prevents a statutory amendment from affecting any right, privilege, obligation, or liability that existed prior to the change. The court noted that the criminal can acquire a right to escape prosecution only if the statute of limitations in effect at the time of the offense has run out. In this case, since the statute of limitations that was in effect at the time of the offense had not run out when the amendment extended the time limit, the court found that the statute could be applied retroactively.

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