Extending the statute of limitations

Extended Statutes of Limitation for Survivors of Childhood Sexual Abuse. The

majority of the states now have some type of provision extending the statute

of limitations for adult survivors of CSA, although the remedy varies

depending upon state. See National Survey of Extended and Discovery-Based

Statutes of Limitation Applicable to Claims of Childhood Sexual Abuse (rev.

1997). Some of the extended periods are provided for by legislative statute,

and others are contained in "tolling" doctrines adopted by the courts. A

tolling doctrine is a rule that postpones the date from which a statutory

period is counted. A simple example would be a statute that that provides

for "minority tolling." A statute that might runs 3 years from the date of

the injury would run 3 years from achieving the legal age of majority

(usually age 18). In some instances, tolling provisions provide a grace

period if the victim is under a statutorily described disability when the

statute expires (runs out).

Most provisions applicable to victims of CSA fall into basic categories. A

number of states have adopted a combination of rules from one or more

categories:

Minority Tolling. Most states have general minority tolling doctrines which

provide that statutes do not begin to accrue (start counting) until the

injured party reaches the age of majority, usually 18. The minority tolling

provisions are applicable to all claims, regardless of type of injury. Some

states also have extended minority tolling provisions for CSA victims. For

instance, Connecticut's special statute of limitations for victims of

childhood sexual abuse or exploitation (Conn. Gen. Stats. 52-577d), claims

must be brought within 17 years of the victim's age of majority. There is no

need for the survivor to prove that memory was repressed or that some other

disability existed preventing the victim from bringing an action.

Delayed Discovery. Provisions based upon delayed discovery of the fact of

the injury, i.e. the recovery of repressed memory. The statute of

limitations would begin to accrue on the date that the memory was recovered.

Delayed discovery provisions have been instituted by legislative statues and

by courts adopting or applying "common law" (judge made) doctrines.

Delayed Discovery/Realization. Provisions based upon discovery of the injury

and/or the fact that the injury or illness suffered by the victim was caused

by the abuse. For an example, see Atty. Jo-Hanna Read's explanation of how

Washington's statute works.

Incapacity Tolling. Many states have general provisions which toll statutes

in the event of mental incapacity or insanity. Some jurisdictions have held

that repressed memory or post-traumatic stress disorder constitutes

"insanity" sufficient to toll the limitations period. See, e.g. Jones v.

Jones, 242 N.J. Super. 195, 576 A.2d 316 (App. Div.) cert. denied, 122 N.J.

418, 585 A.2d 412 (1990); Phillips v. Sugrue, 800 F. Supp. 789 (E.D. Ark.

1992); Leonard v. England, 115 N.C. App. 103, 445 S.E.2d 50 (1994). A

contrary result, however, has been reached in other states. See, e.g. Travis

v. Ziter, ___ Ala. ___ (1996); Lemmerman v. Fealk, 534 N.W.2d 695 (Mich.

1995); Lovelace v. Keohane, 831 P.2d 624 (Okla. 1992); O'Neal v. Division of

Family Services, 821 P.2d 1139 (Utah 1991); Burpee v. Burpee, 152 Misc. 2d

466, 578 N.Y.S.2d 359 (Sup. Ct. 1991); Hildebrand v. Hildebrand, 736 F.

Supp. 1512 (S.D. Ind. 1990).

Other Tolling Doctrines. Your jurisdiction may have other tolling doctrines,

available, i.e. fraudulent concealment or to cover the circumstance of the

defendant being beyond the reach of service of process. For an example, see

a discussion of Connecticut's fraudulent concealment doctrine.

The Claims. Victims are bringing actions seeking accountability as well as

damages for the cost of past and future therapy, loss of childhood, failure

to fulfill potential and the long-term emotional damage resulting from the

abuse. Claims can be lodged for sexual abuse, assault and battery, unlawful

restraint, invasion of privacy, and intentional or negligent infliction of

emotional distress.

Survivors Victimized as Adults. Persons victimized as adults do not have the

benefit of extended statutes of limitation adopted for the benefit of

survivors who were abused as children. Statutes of limitation may be as

short as one (1) year, but are typically 2 or 3 years. In some states, the

statute of limitation may be tolled if a victim is "under a disability,"

(i.e. mental illness). The degree to which courts are willing to toll

statutes for emotional distress varies depending on the state. Depending

upon the language of the discovery-based tolling statute or doctrine, it

might be feasible for an adult victim suffering from repressed memory to use

a discovery doctrine.

Professional Exploitation. Adult victims who have been exploited by medical

professionals (i.e., doctors, therapists and psychiatrists) also have a

civil damages remedy. It is fairly well-established in most states that

mishandling of the "transference/counter -transference" phenomenon that

arises in therapy is malpractice that is covered by insurance. The statutes

of limitation will be typically shorter than those available for survivors

of CSA. In most instances an ongoing physician/patient relationship can

extend the time period. See Liability of Physicians, Therapists and Other

Health Professionals for Sexual Misconduct With Patients by Linda Jorgenson

and Pamela K. Sutherland.

Security Cases. In some settings, adult victims may have remedies against

property owners for failure to provide adequate security. For example,

successful suits have been brought against parking lot and garage owners,

hotel/motels, private owners of buildings open to the public and apartment

building owners.

Domestic Torts. Most states have fully or partially abandoned the doctrine

of spousal immunity and suits can now be brought against spouses for

physical, sexual and emotional abuse. Most jurisdictions require that the

abuse involved be of a magnitude that is considered "extreme and outrageous"

in order to discourage suits for minor incidents. Although the trend is to

allow spousal tort claims to be brought after the conclusion of a divorce

case, jurisdictions vary as to whether claims should be before or after the

divorce goes to judgment. See generally Taking abusers to court: civil

remedies for domestic violence victims by Linda K. Meier; Brian K. Zoeller

(1995).