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
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
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
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
Civil Suit time limitations:
Child victims generally may bring claims until they are 21
age or 3 years after the abuse, whichever is later. There are
important exceptions however that may allow you to enter a
claim much later.
In Massachusetts, victims of childhood sexual abuse
rape of a minor, a criminal charge may be brought as late as
fifteen years from the date of the rape.
Senate Bill would drop statute of limitations, Unfortunately NOT retroactive, but a start! for victims in New York
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