Article 50
Civil Action for Victims of Certain Criminal Conduct
Current through the end of the 2018 Legislative session
60-5001 Civil action for victims of child pornography.
60-5002 Civil action for victims of terrorism or the furtherance of terrorism or illegal use of weapon of mass destruction.
60-5003 Civil action for victims of human trafficking or commercial sexual exploitation of a child.
60-5004 Civil action for victims of wrongful conviction.
60-5001. Civil action for victims of child pornography.
(a) Any person who, while under the age of 18, was a victim of an offense described in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2017 Supp. 21-6419 through 21-6422, and amendments thereto, human trafficking, as defined in K.S.A. 21-3446, prior to its repeal, or K.S.A. 2017 Supp. 21-5426(a), and amendments thereto, aggravated human trafficking, as defined in K.S.A. 21-3447, prior to its repeal, or K.S.A. 2017 Supp. 21-5426(b), and amendments thereto, incest as defined in K.S.A. 21-3602, prior to its repeal, or K.S.A. 2017 Supp. 21-5604(a), and amendments thereto, or aggravated incest as defined in K.S.A. 21-3603(a)(2), prior to its repeal, or K.S.A. 2017 Supp. 21-5604(b)(2), and amendments thereto, where such offense resulted in a conviction and any portion of such offense was used in the production of child pornography, and who suffers personal or psychological injury as a result of the production, promotion, or possession of such child pornography, may bring an action in an appropriate state court against the producer, promoter or intentional possessor of such child pornography, regardless of whether the victim is now an adult.
(b) In any action brought under this section, a prevailing plaintiff shall recover the actual damages such person sustained and the cost of the suit, including reasonable attorney's fees. Any victim who is awarded damages under this section shall be deemed to have sustained damages of at least $150,000.
(c) Notwithstanding any other provision of law, any action commenced under this section shall be filed within three years after the later of:
(1) The conclusion of a related criminal case;
(2) the notification to the victim by a member of a law enforcement agency of the creation, possession, or promotion of the child pornography; or
(3) in the case of a victim younger than 18, within three years after the person reaches the age of 18.
(d) It is not a defense to a civil cause of action under this section that the respondent did not know the victim or commit the abuse depicted in the child pornography.
(e) At the victim's request, the attorney general may pursue cases on behalf of any Kansas victim under this section. All damages obtained shall go to the victim, and the attorney general may seek reasonable attorney's fees and costs.
(f) Any action brought under this section shall be subject to the provisions of K.S.A. 74-7312, and amendments thereto.
(g) As used in this section, "child pornography" includes, but is not limited to, any visual depiction, as described in K.S.A. 21-3516(a), prior to its repeal, or K.S.A. 2017 Supp. 21-5510(a), and amendments thereto, and any performance, as defined in K.S.A. 21-3516(b), prior to its repeal, or K.S.A. 2017 Supp. 21-5510(c), and amendments thereto.
(h) This section shall not apply to acts done in the performance of duty by any: (1) Law enforcement officer of the state of Kansas or any political subdivision thereof; (2) forensic examiner; (3) any prosecuting attorney, as defined in K.S.A. 22-2202, and amendments thereto; or (4) any bona fide child advocacy organization, including, but not limited to, the national center for missing and exploited children.
History: L. 2010, ch. 133, § 1; L. 2011, ch. 30, § 232; L. 2015, ch. 94, § 21; July 1.
60-5002. Civil action for victims of terrorism or the furtherance of terrorism or illegal use of weapon of mass destruction.
(a) A person injured as a result of the conduct of another that would constitute conduct prohibited by K.S.A. 2017 Supp. 21-5421 or 21-5423, and amendments thereto, may bring an action in an appropriate state court against the person or persons who engaged in such conduct.
(b) In any action brought under this section, a prevailing plaintiff shall recover up to three times the actual damages such person sustained or $10,000, whichever is greater, and the cost of the suit, including reasonable attorney's fees.
(c) Notwithstanding any other provision of law, any action commenced under this section shall be filed within five years after the later of:
(1) The date of discovery of the violation of K.S.A. 2017 Supp. 21-5421 or 21-5423, and amendments thereto; or
(2) the conclusion of a related criminal case.
(d) At the victim's request, the attorney general may pursue cases on behalf of any Kansas victim under this section. All damages obtained shall go to the victim, and the attorney general may seek reasonable attorney's fees and costs.
(e) Any action brought under this section shall be subject to the provisions of K.S.A. 74-7312, and amendments thereto.
History: L. 2014, ch. 51, § 1; July 1.
60-5003. Civil action for victims of human trafficking or commercial sexual exploitation of a child.
(a) A victim of the conduct of another that would constitute conduct prohibited by K.S.A. 2017 Supp. 21-5426, and amendments thereto, human trafficking or aggravated human trafficking, or K.S.A. 2017 Supp. 21-6422, and amendments thereto, commercial sexual exploitation of a child, may bring an action in an appropriate state court against the person or persons who engaged in such conduct if the victim suffered personal or psychological injury as a result of the conduct. Such victim may seek actual damages, exemplary or punitive damages, injunctive relief and any other appropriate relief.
(b) In an action under this section, the court shall award a prevailing plaintiff the cost of the suit, including reasonable attorney fees. A victim who is awarded damages under this section shall be deemed to have sustained damages of at least $150,000.
(c) Notwithstanding any other provision of law, any action commenced under this section shall be filed within 10 years after the later of the date on which the victim:
(1) Was freed from the human trafficking situation; or
(2) attained 18 years of age.
(d) At the victim's request, the attorney general may pursue cases on behalf of any Kansas victim under this section. All damages obtained shall go to the victim, and the attorney general may seek reasonable attorney fees and costs.
(e) Any action brought under this section shall be subject to the provisions of K.S.A. 74-7312, and amendments thereto.
(f) This section does not preclude any other remedy available to the victim under federal law or law of this state.
History: L. 2015, ch. 94, § 1; July 1.
60-5004. Civil action for victims of wrongful conviction; Definitions.
(a) As used in this section, "claimant" means a person convicted and subsequently imprisoned for one or more crimes that such person did not commit.
(b) Notwithstanding the provisions of any other law, a claimant may bring an action in the district court seeking damages from the state pursuant to this section.
(c) (1) The claimant shall establish the following by a preponderance of evidence:
(A) The claimant was convicted of a felony crime and subsequently imprisoned;
(B) the claimant’s judgment of conviction was reversed or vacated and either the charges were dismissed or on retrial the claimant was found to be not guilty;
(C) the claimant did not commit the crime or crimes for which the claimant was convicted and was not an accessory or accomplice to the acts that were the basis of the conviction and resulted in a reversal or vacation of the judgment of conviction, dismissal of the charges or finding of not guilty on retrial; and
(D) the claimant did not commit or suborn perjury, fabricate evidence, or by the claimant’s own conduct cause or bring about the conviction. Neither a confession nor admission later found to be false or a guilty plea shall constitute committing or suborning perjury, fabricating evidence or causing or bringing about the conviction under this subsection.
(2) The court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence submitted pursuant to this section, may, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf.
(d)(1) The suit, accompanied by a statement of the facts concerning the claim for damages, verified in the manner provided for the verification of complaints in the rules of civil procedure, shall be brought by the claimant within a period of two years after the: (A) Dismissal of the criminal charges against the claimant or finding of not guilty on retrial; or (B) grant of a pardon to the claimant.
(2) A claimant convicted, imprisoned and released from custody before July 1, 2018, must commence an action under this section no later than July 1, 2020.
(3) All pleadings shall be captioned, "In the matter of the wrongful conviction of."
(4) Any claim filed pursuant to this section shall be served on the attorney general in accordance with the code of civil procedure.
(5) The suit for a claim filed pursuant to this section shall be tried by the court, and no request for a jury trial may be made pursuant to K.S.A. 60-238, and amendments thereto.
(e)(1) Damages awarded under this section shall be:
(A) $65,000 for each year of imprisonment, except as provided in subsection(e)(2); and
(B) not less than $25,000 for each additional year served on parole or postrelease supervision or each additional year the claimant was required to register as an offender under the Kansas offender registration act, whichever is greater.
(2) A claimant shall not receive compensation for any period of incarceration during which the claimant was concurrently serving a sentence for a conviction of another crime for which such claimant was lawfully incarcerated.
(3)(A) Except as provided in subparagraph (B), the court shall order that the award be paid as a combination of an initial payment not to exceed $100,000 or 25% of the award, whichever is greater, and the remainder as an annuity not to exceed $80,000 per year. The claimant shall designate a beneficiary or beneficiaries for the annuity by filing such designation with the court.
(B) The court may order that the award be paid in one lump sum if the court finds that it is in the best interests of the claimant.
(4) In addition to the damages awarded pursuant to subsection (e)(1), the claimant:
(A) Shall be entitled to receive reasonable attorney fees and costs incurred in the action brought pursuant to this section not to exceed a total of $25,000, unless a greater reasonable total is authorized by the court upon a finding of good cause shown;
(B) may also be awarded other non-monetary relief as sought in the complaint including, but not limited to, counseling, housing assistance and personal financial literacy assistance, as appropriate;
(C) shall be entitled to receive tuition assistance pursuant to section 2, and amendments thereto; and
(D) shall be entitled to participate in the state health care benefits program pursuant to K.S.A. 75-6501, and amendments thereto.
(f) (1) If, at the time of the judgment entry referred to in subsection (e), the claimant has won a monetary award against the state or any political subdivision thereof in a civil action related to the same subject, or has entered into a settlement agreement with the state or any political subdivision thereof related to the same subject, the amount of the award in the action or the amount received in the settlement agreement, less any sums paid to attorneys or for costs in litigating the other civil action or obtaining the settlement agreement, shall be deducted from the sum of money to which the claimant is entitled under this section. The court shall include in the judgment entry an award to the state of any amount deducted pursuant to this subsection.
(2) If subsection (f)(1) does not apply and if, after the time of the judgment entry referred to in subsection (e), the claimant wins a monetary award against the state or any political subdivision thereof in a civil action related to the same subject, or enters into a settlement agreement with the state or any political subdivision thereof related to the same subject, the claimant shall reimburse the state for the sum of money paid under the judgment entry referred to in subsection (e), less any sums paid to attorneys or for costs in litigating the other civil action or obtaining the settlement agreement. A reimbursement required under this subsection shall not exceed the amount of the monetary award the claimant wins for damages in the other civil action or the amount received in the settlement agreement.
(g) If the court finds that the claimant is entitled to a judgment, it shall enter a certificate of innocence finding that the claimant was innocent of all crimes for which the claimant was mistakenly convicted. The clerk of the court shall send a certified copy of the certificate of innocence and the judgment entry to the attorney general for payment pursuant to K.S.A. 75-6117, and amendments thereto.
(h) (1) Upon entry of a certificate of innocence, the court shall order the associated convictions and arrest records expunged and purged from all applicable state and federal systems pursuant to this subsection. The court shall enter the expungement order regardless of whether the claimant has prior criminal convictions.
(2) The order of expungement shall state the:
(A) Claimant’s full name;
(B) claimant’s full name at the time of arrest and conviction, if different than the claimant’s current name;
(C) claimant’s sex, race and date of birth;
(D) crime for which the claimant was arrested and convicted;
(E) date of the claimant’s arrest and date of the claimant’s conviction;
and
(F) identity of the arresting law enforcement authority and identity
of the convicting court.
(3) The order of expungement shall also direct the Kansas bureau of investigation to purge the conviction and arrest information from the criminal justice information system central repository and all applicable state and federal databases. The clerk of the court shall send a certified copy of the order to the Kansas bureau of investigation, which shall carry out the order and shall notify the federal bureau of investigation, the secretary of corrections and any other criminal justice agency that may have a record of the conviction and arrest. The Kansas bureau of investigation shall provide confirmation of such action to the court.
(4) If a certificate of innocence and an order of expungement are entered pursuant to this section, the claimant shall be treated as not having been arrested or convicted of the crime.
(i) Upon entry of a certificate of innocence, the court shall order the expungement and destruction of the associated biological samples authorized by and given to the Kansas bureau of investigation in accordance with K.S.A. 21-2511, and amendments thereto. The order shall state the information required to be stated in a petition to expunge and destroy the samples and profile record pursuant to K.S.A. 21-2511, and amendments thereto, and shall direct the Kansas bureau of investigation to expunge and destroy such samples and profile record. The clerk of the court shall send a certified copy of the order to the Kansas bureau of investigation, which shall carry out the order and provide confirmation of such action to the court. Nothing in this subsection shall require the Kansas bureau of investigation to expunge and destroy any samples or profile record associated with the claimant that was submitted pursuant to K.S.A. 21-2511(a), and amendments thereto, related to any offense other than the offense for which the court has entered a certificate of innocence.
(j) The decision to grant or deny a certificate of innocence shall not have a res judicata effect on any other proceedings.
(k) Nothing in this section shall preclude the department of corrections from providing reentry services to a claimant that are provided to other persons, including, but not limited to, financial assistance, housing assistance, mentoring and counseling. Such services shall be provided while an action under this section is pending and after any judgment is entered, as appropriate for such claimant.
(l) The decision of the district court may be appealed directly to the supreme court pursuant to the code of civil procedure.
History: L. 2018, ch. 108, § 1; July 1.