On Aug. 4, 2026, the New Jersey Supreme Court issued a decision in connection with J.H. v. Warren Hills Board of Education, addressing “passive abuser” liability under the Child Sexual Abuse Act (CSAA). 

By way of brief background, when the Legislature enacted the CSAA in 1992, it captured passive abuser liability in the definition of child sexual abuse with the following language: “[a] parent, resource family parent, guardian or other person standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by another person also commits sexual abuse…”  (emphasis added). 

Through the Child Victims Act (CVA) in 2019, the Legislature amended the CSAA, among other laws, in order to “greatly increase the ability of victims of sexual abuse to pursue justice through the court system.”  Some examples of the amendments are:

  • The extension of the civil statute of limitations for child sexual abuse claims to permit a person to bring an action based on sexual abuse within 37 years after the minor reaches the age of majority (i.e., by age 55) or within 7 years from discovery of injury, whichever is later.  See N.J.S.A. 2A:14-2a.
  • The elimination of the “within the household” requirement for passive abuser liability under the CSAA.  See N.J.S.A. 2A:61B-1.       

With respect to passive abuser liability, the Legislature explained in a statement to the CVA that: this amendment “is intended to only apply prospectively”; and the removal of the “within the household” language exposes “any individual person, or private or public entity, who takes custody and control of children even on a limited, temporary basis” to potential liability. 

In light of this change, a board of education is one such public entity (along with individuals, such as employees and board members) that could now be considered to have “committed” sexual abuse as a passive abuser under the CSAA.   

In November 2021, a former student, J.H., sued the Warren Hills Board of Education, the junior high school, and the estate of F.M. (deceased in 1995), and alleged that F.M. – a former district custodian and wrestling coach – sexually abused him between 1976 and 1978 on school grounds and at F.M.’s residence.  Although the at-issue conduct occurred in 1976 and 1978, and in light of the amendments that stemmed from the CVA, J.H. argued that the board and the junior high school were liable as passive abusers under the CSAA.

The New Jersey Appellate Division issued a decision issued on April 28, 2025 and agreed with the trial court that the removal of the “within the household” requirement applies to any action filed after Dec. 1, 2019, and is not limited to claims that accrued after Dec. 1, 2019.  In other words, the new definition of passive abuser liability (not requiring a person or entity to reside in the same household as the victim) would apply to J.H.’s claims that accrued in between 1976 and 1978, even though this definition was not in effect at that time. 

On appeal, the New Jersey Supreme Court reviewed both the plain language of the CVA (noting that the Legislature did not specify that this amendment was to apply to acts that occurred prior to the effective date of the CVA, as it did for other amendments) and the Legislature’s statement accompanying the CVA, which explicitly provides that the “within the household” amendment applies “only…prospectively.”  Based upon “the plain language of the CVA and the Legislature’s unequivocal statement that the amendment operates prospectively,” the New Jersey Supreme Court “reverse[d] the judgment of the Appellate Division and [held] that the removal of the ‘within the household’ requirement applies only to instances of sexual abuse committed on or after Dec. 1, 2019” (emphasis added). 

While acknowledging that all sexual abuse victims should be able to seek justice under the new, extended statute of limitations, such lawsuits are difficult for boards of education to defend because the allegations occurred decades ago.  With the J.H. decision, boards of education and individual employees and board members will at least not be subject to heightened exposure as passive abusers for allegations that occurred prior to Dec. 1, 2019.  That said, for older incidents (pre-Dec. 1, 2019), the common law claims of negligent hiring/supervision/retention, among others, still exist. 

As with all specific legal scenarios and litigation matters, NJSBA directs boards of education and charter school boards of trustees to consult with their attorneys for specific legal advice and guidance. 

For further information about this matter, please contact the NJSBA Legal Department at (609) 278-5279, or your board attorney for specific legal advice.