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2024 Regular Session
SENATE CONCURRENT RESOL UTION NO. 26
BY SENATOR LUNEAU
PRESCRIPTION. Provides relative to legislative intent of certain Acts relating to causes of
action for abuse of a minor.
1 A CONCURRENT RESOL UTION
2 To provide for legislative intent of certain Acts of the Legislature relating to causes of action
3 for abuse of a minor.
4 WHEREAS, prior to the adoption of Act No. 322 of the 2021 Regular Session of the
5 Legislature of Louisiana, R.S. 9:2800.9 provided for a liberative prescriptive period of ten
6 years for an action against a person for sexual abuse of a minor, commencing to run from
7 the day the minor attained the age of majority; and
8 WHEREAS, Act No. 322 became effective on June 14, 2021, and eliminated the
9 ten-year prescriptive period, providing instead that actions against a person for sexual abuse
10 of a minor do not prescribe; and
11 WHEREAS, Section 2 of Act No. 322 authorized any party whose action against a
12 person under R.S. 9:2800.9, but would have been barred by the ten-year liberative
13 prescriptive period eliminated by the Act, to file the action for a period of three years from
14 the effective date of the Act, thus reviving, for three years, any claim against a party that
15 would have been barred prior to the enactment of the Act; and
16 WHEREAS, the legislature intended that Act No. 322 be applied retroactively; and
17 WHEREAS, Act No. 386 of the 2022 Regular Session of the Legislature affirmed
18 the legislature's intent that the provisions of R.S. 9:2800.9, as amended by Act No. 322
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1 providing that actions against a person for sexual abuse of a minor do not prescribe, be
2 applied retroactively to permit those persons who may have had a cause of action barred by
3 the previous ten-year liberative prescriptive period to file an action under R.S. 9:2800.9 until
4 June 14, 2024; and
5 WHEREAS, there have been numerous constitutional challenges to the retroactive
6 application reviving previously prescribed causes of action for sexual abuse against minors,
7 alleging that retroactive application violates Art. I, Sec. 2 of the Constitution of Louisiana;
8 and
9 WHEREAS, pending the outcome of these various legal challenges and considering
10 the expiration of the revival period established in Act No. 322 of the 2021 Regular Session
11 and Act No. 386 of the 2022 Regular Session, Senate Bill No. 246 of the 2024 Regular
12 Session of the Legislature of Louisiana was prefiled in the legislature on March 1, 2024, and
13 was introduced in the Senate on March 11, 2024, in order to preserve the retroactive
14 application and revival of claims for those victims of acts of sexual abuse suffered as a
15 minor who are now adults and whose claims were barred by the previous ten-year
16 prescriptive period of R.S. 9:2800.9 that existed prior to the enactment of Act No. 322 of the
17 2021 Regular Session; and
18 WHEREAS, on March 22, 2024, the Louisiana Supreme Court issued a ruling in
19 Douglas Bienvenu, et al. vs. Defendant 1 and Defendant 2, C/W John Doe, et al., vs
20 Defendant 1 and Defendant 2, 23-01194, (La. 03/22/24), wherein the court found defendants
21 have a vested property right in accrued prescription, that the Legislature of Louisiana lacks
22 the authority to revive prescribed claims for cases of sexual abuse against minors, and
23 declared Sections 2 of Act No. 322 of the 2021 and Act No. 386 of the 2022 Regular
24 Sessions of the Legislature of Louisiana unconstitutional; and
25 WHEREAS, Article II of the Constitution of Louisiana provides that the powers of
26 the government of the state of Louisiana are exercised by the legislative, executive, and
27 judicial branches of government and prohibits any branch from exercising power belonging
28 to either of the other unless explicitly provided by the constitution; and
29 WHEREAS, Art. I, Sec. 2 of the Constitution of Louisiana provides that no person
30 shall be deprived of life, liberty, or property, except by due process of law; and
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1 WHEREAS, it is well settled that the legislature may enact any legislation that the
2 Constitution of Louisiana does not prohibit and the burden of proving a constitutional
3 provision prohibits the enactment of a statute rests with the party challenging the
4 constitutionality; and
5 WHEREAS, the legislature respects that interpretation of the laws is vested with the
6 judiciary, but does take note of the distinction between liberative prescription, which serves
7 to bar an action as a result of inaction for a certain period of time, and peremption, which
8 acknowledges the existing of a right and the extinguishing of that right upon the expiration
9 of the preemptive period – this is not a distinction without a difference; and
10 WHEREAS, the Legislature of Louisiana does hereby recognize the hierarchy of the
11 sources of law in the state of Louisiana, established in Civil Code, making superior
12 legislative enactment over custom; and
13 WHEREAS, the constitution does not anticipate that the rights afforded under Art.
14 I, Sec. 2 are absolute, instead they are conditioned upon whether the guarantee of due
15 process has been met; and
16 WHEREAS, whether a right is a vested property right or a fundamental right is not
17 dispositive of whether a due process analysis is required in the court's evaluation of the
18 constitutionality of an enactment of the legislature under Art. I, Sec. 2 of the Constitution
19 of Louisiana; rather this determination is necessary and relevant only for the purposes of
20 determining the applicable standard the court should apply in evaluating whether an action
21 of the government violates a party's substantive due process protections; and
22 WHEREAS, in the case of fundamental rights, government restrictions are subject
23 to a strict scrutiny analysis, compared to the rational basis analysis that is applicable to
24 evaluation of government action as it relates to rights that are not fundamental; and
25 WHEREAS, sexual abuse of a minor is a unique tort to which ordinary laws of
26 prescription should not apply.
27 THEREFORE, BE IT RESOLVED that the Legislature of Louisiana hereby finds
28 that laws requiring claims of sexual abuse of a minor be filed within a certain period of time
29 of the actions that serve as the basis of the cause of action do not create vested rights for the
30 alleged perpetrator against whom the action is claimed.
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1 BE IT FURTHER RESOLVED that the Legislature of Louisiana does hereby find
2 that the time within which a cause of action may be filed by an adult, who is a victim of acts
3 of sexual abuse committed against him as a minor, should not be limited in time by
4 legislative enactment.
5 BE IT FURTHER RESOLVED that the Legislature of Louisiana does hereby find
6 that the Constitution of Louisiana requires any restriction on rights enumerated in Art. I, Sec.
7 2 of the Constitution be balanced against the protections required by due process.
8 BE IT FURTHER RESOLVED that the Legislature of Louisiana hereby finds that
9 due process does not require the outright prohibition of retroactive application of substantive
10 law when the legislature's intent on retroactivity is clear, but instead requires an analysis of
11 whether implementation of retroactive application survives due process scrutiny.
12 BE IT FURTHER RESOLVED that the Legislature of Louisiana recognizes that the
13 judiciary has established different levels of due process analyses depending on the right
14 alleged to be violated by government action.
15 BE IT FURTHER RESOLVED that the Legislature of Louisiana hereby asserts that
16 the passage of the provisions of Act No. 322 of the 2021 Regular Session of the Legislature
17 of Louisiana, and each amending Act relative to retroactive application, is rationally related
18 to the legitimate governmental interest of addressing a systemic societal problem impacting
19 children, who are the most vulnerable among us, that has remained hidden for years and
20 serves a public purpose by preventing abuse of children in the future by identifying hidden
21 child predators, educating the public about the prevalence and harm from child sex abuse in
22 an effort to prevent future abuse, and shifting the costs of abuse to the predator rather than
23 the victim and the public in general.
24 BE IT FURTHER RESOLVED that, in addition to the original Acts of the legislature
25 themselves, the Legislature of Louisiana does hereby expressly declare its intent that the
26 provisions of Act No. 322 of the 2021 Regular Session of the Legislature, as amended by
27 Act No. 386 of the 2022 Regular Session of the Legislature and the Act that originated as
28 Senate Bill No. 246 of the 2024 Regular Session of the Legislature, be applied retroactively
29 for the limited period of time contained in those Acts to permit child victims of sexual abuse
30 who have attained the age of majority and would otherwise be barred from a cause of action
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1 against the alleged perpetrators under prior law, to assert claims in furtherance of the
2 legitimate government interests enumerated by the legislature in the passage of Act No. 322,
3 each amending provision thereafter, and this Concurrent Resolution.
4 BE IT FURTHER RESOLVED that a copy of this Resolution be transmitted
5 individually to the justices of the Louisiana Supreme Court.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Dawn Romero Watson.
DIGEST
SCR 26 Engrossed 2024 Regular Session Luneau
Expressly declares that the Legislature's intent in enacting Act No. 322 of the 2021 Regular
Session of the Legislature, as amended by Act No. 386 of the 2022 Regular Session of the
Legislature and by the Act that originated as Senate Bill No. 246 of the 2024 Regular
Session of the Legislature, be applied retroactively for the limited period of time contained
in those Acts to permit child victims of sexual abuse who have attained the age of majority
and would otherwise be barred from a cause of action against the alleged perpetrators under
prior law, to assert claims in furtherance of the legitimate government interests enumerated
by the legislature in the passage of Act No. 322, each amending provision thereafter, and this
Concurrent Resolution.
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