O.C.G.A. § 9-3-33.1 (2019)
Actions for childhood sexual abuse
(a)(1) As used in this subsection, the term “childhood sexual abuse” means any act committed by the defendant against the plaintiff which occurred when the plaintiff was under 18 years of age and which would be in violation of: (A) Rape, as prohibited in Code Section 16-6-1; (B) Sodomy or aggravated sodomy, as prohibited in Code Section 16-6-2; (C) Statutory rape, as prohibited in Code Section 16-6-3; (D) Child molestation or aggravated child molestation, as prohibited in Code Section 16-6-4; (E) Enticing a child for indecent purposes, as prohibited in Code Section 16-6-5; (F) Pandering, as prohibited in Code Section 16-6-12; (G) Reserved; (H) Solicitation of sodomy, as prohibited in Code Section 16-615; (I) Incest, as prohibited in Code Section 16-6-22; (J) Sexual battery, as prohibited in Code Section 16-6-22.1; or (K) Aggravated sexual battery, as prohibited in Code Section (2) Notwithstanding Code Section 9-3-33 and except as provided in subsection (d) of this Code section as it existed on June 30, 2017, any civil action for recovery of damages suffered as a result of childhood sexual abuse committed before July 1, 2015, shall be commenced on or before the date the plaintiff attains the age of 23 years. (b)(1) As used in this subsection, the term “childhood sexual abuse” means any act committed by the defendant against the plaintiff which occurred when the plaintiff was under 18 years of age and which would be in violation of: (A) Trafficking a person for sexual servitude, as prohibited in Code Section 16-5-46; (B) Rape, as prohibited in Code Section 16-6-1; (C) Statutory rape, as prohibited in Code Section 16-6-3, if the defendant was 21 years of age or older at the time of the act;
(D) Aggravated sodomy, as prohibited in Code Section 16-6-2; (E) Child molestation or aggravated child molestation, as prohibited in Code Section 16-6-4, unless the violation would be subject to punishment as provided in paragraph (2) of subsection (b) of Code Section 16-6-4 or paragraph (2) of subsection (d) of Code Section 16-6-4; (F) Enticing a child for indecent purposes, as prohibited in Code Section 16-6-5, unless the violation would be subject to punishment as provided in subsection (c) of Code Section 16-6-5; (G) Incest, as prohibited in Code Section 16-6-22; (H) Aggravated sexual battery, as prohibited in Code Section 16-6-22.2; or (I) Part 2 of Article 3 of Chapter 12 of Title 16. (2)(A) Notwithstanding Code Section 9-3-33, any civil action for recovery of damages suffered as a result of childhood sexual abuse committed on or after July 1, 2015, shall be commenced: (i) On or before the date the plaintiff attains the age of 23 years; or (ii) Within two years from the date that the plaintiff knew or had reason to know of such abuse and that such abuse resulted in injury to the plaintiff as established by competent medical or psychological evidence. (B) When a plaintiff’s civil action is filed after the plaintiff attains the age of 23 years but within two years from the date that the plaintiff knew or had reason to know of such abuse and that such abuse resulted in injury to the plaintiff, the court shall determine from admissible evidence in a pretrial finding when the discovery of the alleged childhood sexual abuse occurred. The pretrial finding required under this subparagraph shall be made within six months of the filing of the civil action. (c)(1) As used in this subsection, the term: (A) “Entity” means an institution, agency, firm, business, corporation, or other public or private legal entity. (B) “Person” means the individual alleged to have committed the act of childhood sexual abuse. (2) If a civil action for recovery of damages suffered as a result of childhood sexual abuse is commenced pursuant to division (b)(2)(A)(i) of this Code section and if the person was a volunteer or employee of an entity that owed a duty of care to the plaintiff, or the person and
the plaintiff were engaged in some activity over which such entity had control, damages against such entity shall be awarded under this Code section only if by a preponderance of the evidence there is a finding of negligence on the part of such entity. (3) If a civil action for recovery of damages suffered as a result of childhood sexual abuse is commenced pursuant to division (b)(2)(A)(ii) of this Code section and if the person was a volunteer or employee of an entity that owed a duty of care to the plaintiff, or the person and the plaintiff were engaged in some activity over which such entity had control, damages against such entity shall be awarded under this Code section only if by a preponderance of the evidence there is a finding that there was gross negligence on the part of such entity, that the entity knew or should have known of the alleged conduct giving rise to the civil action and such entity failed to take remedial action.
History
Code 1981, § 9-3-33.1, enacted by Ga. L. 1992, p. 2473, § 1; Ga. L. 2015, p. 675, § 2-2/SB 8; Ga. L. 2015, p. 689, § 2/HB 17; Ga. L. 2018, p. 1112, § 9/SB 365; Ga. L. 2019, p. 74, § 2-1/SB 158.
Annotations
Code Commission notes. Pursuant to Code Section 28-9-5, in 2015, the amendment of paragraph (b)(2) of this Code section by Ga. L. 2015, p. 675, § 2-2/SB 8, was treated as impliedly repealed and superseded by Ga. L. 2015, p. 689, § 2/HB 17, due to irreconcilable conflict. Editor’s notes. Ga. L. 1992, p. 2473, § 2, not codified by the General Assembly, provides: “No action for childhood sexual abuse which, prior to July 1, 1992, has been barred by the provisions of Title 9, relating to actions, shall be revived by this Act.” Ga. L. 2015, p. 675, § 1-1/SB 8, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Safe Harbor/Rachel’s Law Act.’” Ga. L. 2015, p. 675, § 1-2/SB 8, not codified by the General Assembly, provides: “(a) The General Assembly finds that arresting, prosecuting, and incarcerating victimized children serves to retraumatize children and increases their feelings of low self-esteem, making the process of recovery more difficult. The General Assembly acknowledges that both federal and state laws recognize that
sexually exploited children are the victims of crime and should be treated as victims. The General Assembly finds that sexually exploited children deserve the protection of child welfare services, including family support, crisis intervention, counseling, and emergency housing services. The General Assembly finds that it is necessary and appropriate to adopt uniform and reasonable assessments and regulations to help address the deleterious secondary effects, including but not limited to, prostitution and sexual exploitation of children, associated with adult entertainment establishments that allow the sale, possession, or consumption of alcohol on premises and that provide to their patrons performances and interaction involving various forms of nudity. The General Assembly finds that a correlation exists between adult live entertainment establishments and the sexual exploitation of children. The General Assembly finds that adult live entertainment establishments present a point of access for children to come into contact with individuals seeking to sexually exploit children. The General Assembly further finds that individuals seeking to exploit children utilize adult live entertainment establishments as a means of locating children for the purpose of sexual exploitation. The General Assembly acknowledges that many local governments in this state and in other states found deleterious secondary effects of adult entertainment establish-
ments are exacerbated by the sale, possession, or consumption of alcohol in such establishments. “(b) The purpose of this Act is to protect a child from further victimization after he or she is discovered to be a sexually exploited child by ensuring that a child protective response is in place in this state. The purpose and intended effect of this Act in imposing assessments and regulations on adult entertainment establishments is not to impose a restriction on the content or reasonable access to any materials or performances protected by the First Amendment of the United States Constitution or Article I, Section I, Paragraph V of the Constitution of this state.” Ga. L. 2015, p. 689, § 1/HB 17, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Hidden Predator Act.’” Former subsection (d) was repealed on its own terms effective July 1, 2017. Ga. L. 2019, p. 74, § 1-1/SB 158, not codified by the General Assembly, provides: “This Act shall be known and may
be cited as the ‘Anti-Human Trafficking Protective Response Act.’” Ga. L. 2019, p. 74, § 3-1/SB 158, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2019, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2019, shall be governed by the statute in effect at the time of such offense, and any resulting conviction shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction.” Law reviews. For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 154 (1992). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 43 (2015). For note, “I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99,” see 68 Mercer L. Rev. 557 (2017).
JUDICIAL DECISIONS Substantive law to be applied. - In the daughter’s revived civil claims for childhood sexual abuse against her parents under O.C.G.A. § 9-3-33.1, as the continuing tort theory did not apply, the substantive law of Quebec applied to those torts that were completed there, and the substantive law of Georgia applied to torts committed in Georgia. Harvey v. Merchan, 311 Ga. 811, 860 S.E.2d 561, 2021 Ga. LEXIS 469 (2021). Action time-barred. - In the six plaintiffs’ lawsuit alleging sexual abuse by two scoutmasters, whose troop meetings were hosted on the churches’ property from the 1950s to the 1980s, the plaintiffs’ claims against the churches were timebarred because O.C.G.A. § 9-3-33.1 was a statute of repose that could not be tolled; the deadline for filing an action was a plaintiff’s 23rd birthday; and the plaintiffs did not file their lawsuits before their 23rd
birthdays. McArthur v. Beech Haven Baptist Church of Athens, 361 Ga. App. 877, 864 S.E.2d 189, 2021 Ga. App. LEXIS 517 (2021). Acts occurring outside of Georgia. - Daughter could pursue a cause of action for childhood sexual abuse acts that occurred in Quebec as well as Georgia, because this statute’s definition of childhood sexual abuse was broad enough to cover acts that occurred outside of Georgia because, applying O.C.G.A. § 9-3-33.1 to acts that occurred in Quebec would not create a substantive cause of action unrecognized under Quebec law, as the former revival provision of § 9-3-33.1 was simply a procedural rule governing the limitations period for causes of action based on childhood sexual abuse already recognized under the law. Harvey v. Merchan, 311 Ga. 811, 860 S.E.2d 561, 2021 Ga. LEXIS 469 (2021).
RESEARCH REFERENCES Am. Jur. Trials. - When Clergy Fail Their Flock: Litigating the Clergy Sexual Abuse Case, 91 Am. Jur. Trials 151.
ALR. Running of limitations against action for civil damages for sexual abuse of child, 9 A.L.R.5th 321.