Adult Survivors of Childhood Sexual Abuse and the Statute of Limitations: The Need for Consistent Application of the Delayed Discovery Rule

• NCJ Number: 154422
• Journal: Pepperdine Law Review Volume: 20 Issue: 4 Dated: (1993) Pages: 1359-1405
• Author(s): G G Gordon
• Date Published: 1993
• Length: 47 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

After analyzing the dynamics of childhood sexual abuse and its damaging effects on its victims, this article argues that adult survivors of childhood sexual abuse currently lack a consistent, adequate legal remedy for the harm they experience; remedial legislation that circumvents the statute of limitations on childhood sexual victimization is proposed.

Abstract

Recently a number of courts have recognized the harsh consequences of a strict application of the statute of limitations in cases where severe childhood sexual abuse has not come to the conscious awareness of the victim until adulthood. These courts have applied the delayed discovery rule, a common law equitable exception to strict adherence to the time bar that statute of limitations present. The discovery rule tolls the statute of limitations until the plaintiff knows, or reasonably should have known, of her/his injury. Judicial expansion of this rule into the area of childhood sexual abuse, however, has been inconsistent and erratic. This article recommends a uniform legislative approach to the delayed discovery rule and outlines a legislative proposal. The proposed statute defines childhood sexual abuse and includes psychological and emotional illnesses within its definition of injury. The statute allows an action to be brought anytime within 8 years after reaching majority. It also incorporates additional flexibility by adding a discovery- based tolling provision available to plaintiffs beyond the age of 26. Also, the proposal affords the entire class of sexual abuse victims an equal opportunity to reach the merits of their cases. This is achieved through specific language that tolls the limitations period until the plaintiff discovers both the injury and its causal connection to the past sexual abuse. The responsibility for determining the reasonableness of the plaintiff's discovery is left to the trier of fact. 280 footnotes