Child Sexual Abuse

Introduction

For a variety of reasons victims of child sexual abuse do not or cannot report their sexual abuse until well into adulthood – usually some time after age 30.

A 6-year-old girl is fondled while sitting on the lap of the kindly minister from the monastery down the street. The good minister is helping out with the young girl because the dad is gone and the mom is sick. The fondling continues until the girl is 13 and she runs away from home to live her life on the street and eventually finds a living as a stripper in the North Woods of Wisconsin. Another victim of the same minister had her first child at age 13 and had three illegitimate children by age 18.

A 13-year-old altar boy is groomed by the parish priest who is good friends with mom and dad. Over a period of months the cool priest gains the boy's trust and convinces the boy that the priest should teach him about sex through experimentation. The priest plies him with alcohol to loosen him up. The boy becomes an alcoholic, gets married and has a son of his own. Unable to cope with his shame and alcoholism, he takes his own life at age 30.

A well respected coach at the high school and former semi-pro sports player convinces several boys on the varsity football team that pro sport players give each other massages including their genitals to relax before games. One of the boys at age 32 finally realizes the nature of the act. Concerned that the coach is still molesting boys, he confronts the coach though an attorney. Angered when the coach denies the abuse, he finds two more victims, files suit and holds a press conference. Several more boys, now all in their 30s, come forward to help publicly expose the coach.

A 14-year-old boy is repeatedly molested by an older man who was friends with the boy's family. Years later when the boy has his own children, he molests his own daughter and spends three years in prison for his crime.

A 4-year-old girl is forced to do terrible acts with her father who threatens to kill her if she tells anyone. It continues until the girl is 14. The mother is aware of what is going on and does nothing to stop it. Decades later the girl and her mother learn that the estranged father is volunteering at a grade school special education center. The now divorced mother contacts the police to report the abuse she knew had happened to her daughter. The police can take no action against the father.

What do all these cases have in common? Aside from involving acts of sexual abuse, none of the victims ever told anyone about the abuse until after the age of 30. None of the perpetrators were subject to criminal prosecution. All of the perpetrators were exposed (some more publicly than others) through aggressive civil prosecution made possible by expanded statutes of limitations.

The sexual abuse of children is nothing new – it can be found in ancient literature. What is new is that more victims are being believed and more perpetrators are being called to answer both criminally and civilly.

Discussion

For centuries, victims of child sexual abuse have not been fully represented in the courts. The primary reason for this grave societal error is that the statutes of limitations for prosecuting perpetrators and compensating victims have been inadequate to take into account the psychological realities that prevent victims from disclosing their abuse, and they have not recognized that the crime of abuse itself keeps the victim from coming forward until much later in life. Usually, victims have been unable to recognize their abuse or the injuries caused by their abuse until at least their 30s. This has, in the past, been long after it was too late for the courts to intervene to either punish the abuser or compensate the victim.

A significant side effect created by these time limitations is that the public was unaware of the extent of the problem because if lawsuits could not be brought or crimes could not be prosecuted, the press would not publish facts about abuse. This further shrouded the issue in secrecy and made it that much easier for child sexual abusers to get away with their crimes. The lack of public awareness also caused victims to feel isolated and feel that they were the only one – making it that much harder for them to come forward.

The extent of the problem of child sexual abuse only began to be known after the courts became involved. The reason the courts became involved is because lawyers began to find ways around the statutes of limitations. As a natural fallout, the problem began to be revealed by the press, and the legislators began to take notice and began to struggle with how to change the limitations periods to allow victims sufficient time to come forward. As a result of the courts and legislators getting involved, lawsuits have been filed, the press became legally comfortable reporting about the problem and the public has become aware of the extent and severity of the abuse of children. As a result of this awareness, many children have been spared the horror of abuse because patterns of abuse have been exposed, parents have become more vigilant in protecting their children from potential abusers, and abusers are being prosecuted both civilly and criminally.

The consequences to the victim of sexual abuse are often severe and debilitating. Victims suffer from a variety of psychological problems including post-traumatic stress disorder, alcoholism, drug addiction, gambling addiction, sexual dysfunction, sexual addiction, difficulty in maintaining family relationships and personal relationships, depression, low self-esteem and suicide. 1

There is a growing body of scientific data that demonstrates that childhood trauma victims including victims of childhood sexual abuse can suffer from psychological injuries that can either cause them to lose some memory of the trauma or inhibits their ability to process the memory of the trauma in a verbal or cognitive way. 2

Clearly, to address this problem, statutes of limitations in general need to be expanded in order to allow victims to recover from the guilt, shame, and complications caused by the trauma they suffer before requiring them to file suit. Different states have dealt with this in different ways.

While many states have expanded both the criminal and civil statutes of limitations, this article will be dealing mainly with civil statutes of limitations.

Many states have addressed the inadequate statutes of limitations either in the courts, the legislature or both. Wisconsin allows a victim of childhood sexual abuse to file suit by age 35. 3 Maine has abolished the statute of limitations for childhood sexual abuse. 4 In Arizona, the Supreme Court has specifically recognized repressed memory as a basis to apply the "unsound mind" tolling provision of their statute of limitations. 5 California created a "window of opportunity" when they allowed victims of childhood sexual abuse to file suit no matter when the abuse occurred for a period of one year commencing January 1, 2003. 6 Most states have made some modification to their statutes of limitations. 7

The majority of states that have addressed the issue have created some form of discovery rule tolling provision to stop the running of the statutes of limitations centering either on the discovery of the abuse, the discovery of the injury caused by the abuse or the discovery of the injury and the connection between the abuse and the injury. There still needs to be a more comprehensive response that considers all of the reasons victims wait so long to report.

Illinois' Response

The first recognition of a need for some form of tolling of the statute of limitations by a court in Illinois was in the 1988 Northern District case of Johnson v. Johnson. 8 The Johnson court ruled that the statute of limitations would be tolled for the 36-year-old plaintiff because she claimed that she suppressed all memories of the sexual abuse by her father until it was recovered in therapy shortly before she filed suit.

The discovery rule was codified by the Illinois legislature shortly thereafter in 1990. 9

"…..An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the date the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the sexual abuse…."

Unfortunately for victims of sexual abuse and the greater public good, the legislative process forced a compromise and included language that placed an age thirty repose cap on the filing of sexual abuse claims.

Wisely this age 30 repose cap was removed by amendment effective January 1, 1994.

Throughout the 1990s various Illinois courts have grappled with the interpretation and applicability of this statute.

The difficulty that most courts have had in analyzing the application of the tolling provisions in childhood sexual abuse cases is that they misunderstand and misinterpret how childhood sexual abuse normally occurs. It comes from a general societal misunderstanding that sexual abuse is most often perpetrated by some stranger when quite the contrary is true. Ordinarily, childhood sexual abuse is perpetrated by an individual who is trusted by the child and the family and who grooms the child into accepting the sexual acts as a bond between the child and the perpetrator. 10 Often, the trauma comes later when the child realizes that they have been taken advantage of and that societal norms are not what they were taught by the perpetrator. 11 The child internalizes the guilt and shame and is traumatized with the overlay of societal norms. This takes place over a period of many, many years and culminates into various forms of stress-related injuries already described in this article. While it is not clear from recent social events why victims have not come forward earlier in their lives, it is quite clear from pervasive media reports that most victims are over thirty before they are able to report and act against their abuser.

Broadly speaking, the primary issue of controversy in Illinois was whether to apply the tolling provision only when the victim represses or suppresses the memory of the abuse or whether the tolling provision would be applied if the victim was always consciously aware of the abuse but was unaware that it caused the injury.

The Illinois Supreme Court addressed this issue in the case of Clay v. Kuhl. 11 In Clay the plaintiff alleged she was abused from age four or five through age fourteen or fifteen. The plaintiff did not claim that she repressed or suppressed the memory of the abuse. The plaintiff did claim that she was not aware that the abuse caused her injury until shortly before filing suit. The Clay court in a four-to-two decision with Justice Rathje recusing himself ruled that because she was always aware of the abuse, her claim was barred. As a practical result of this decision, only victims who claim repressed memory could maintain claims.

This was not the last word on this issue. In the wake of the Boston Diocese sexual abuse scandal, victims groups mobilized and sought more inspired victim-friendly changes to the statutes of limitations. In July 2003 the Illinois legislature passed the 2003 Child Protection Act which included victim-friendly changes to the civil tolling provisions of §735 ILCS 5/13-202.2. Those provisions essentially overruled the opinion of the Clay court and now allow the victim much more time to file suit - giving the victim until at least age twenty-eight, but more importantly, allowing them five years from when the victim draws the connection between their sexual abuse and the injury that they suffered from the abuse, and allowing tolling when the victim is subject to threats, intimidation, manipulation or fraud. 11

§5/13-202.2. Childhood sexual abuse.

(a) In this Section:
"Childhood sexual abuse" means an act of sexual abuse that occurs when the person abused is under 18 years of age.

"Sexual abuse" includes but is not limited to sexual conduct and sexual penetration as defined in Section 12-12 of the Criminal Code of 1961.

(b) Notwithstanding any other provision of law, an action for damages for personal injury based on childhood sexual abuse must be commenced within 10 years of the date the limitation period begins to run under subsection (d) or within 5 years of the date the person abused discovers or through the use of reasonable diligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse. The fact that the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred is not, by itself, sufficient to start the discovery period under this subsection (b). Knowledge of the abuse does not constitute discovery of the injury or the causal relationship between any later-discovered injury and the abuse.

(c) If the injury is caused by 2 or more acts of childhood sexual abuse that are part of a continuing series of acts of childhood sexual abuse by the same abuser, then the discovery period under subsection (b) shall be computed from the date the person abused discovers or through the use of reasonable diligence should discover both (i) that the last act of childhood sexual abuse in the continuing series occurred and (ii) that the injury was caused by any act of childhood sexual abuse in the continuing series. The fact that the person abused discovers or through the use of reasonable diligence should discover that the last act of childhood sexual abuse in the continuing series occurred is not, by itself, sufficient to start the discovery period under subsection (b). Knowledge of the abuse does not constitute discovery of the injury or the causal relationship between any later-discovered injury and the abuse.

(d) The limitation periods under subsection (b) do not begin to run before the person abused attains the age of 18 years; and, if at the time the person abused attains the age of 18 years he or she is under other legal disability, the limitation periods under subsection (b) do not begin to run until the removal of the disability.

(d-1)The limitation periods in subsection (b) do not run during a time period when the person abused is subject to threats, intimidation, manipulation, or fraud perpetrated by the abuser or by any person acting in the interest of the abuser.

(e) This Section applies to actions pending on the effective date of this amendatory Act of 1990 as well as to actions commenced on or after that date. The changes made by this amendatory Act of 1993 shall apply only to actions commenced on or after the effective date of this amendatory Act of 1993. The changes made by this amendatory Act of the 93rd General Assembly apply to actions pending on the effective date of this amendatory Act of the 93rd General Assembly as well as actions commenced on or after that date.

(Adopted, eff. Jan. 1, 1991 amended,
Effective Jan. 1, 1993; Jan. 1, 1994; July 24, 2003).

While not all inclusive, the 2003 Illinois civil tolling statute takes into account many of the reasons victims do not or cannot come forward until many years after the abuse occurred.

Conclusion

A comprehensive tolling statute needs to take into account that there are many reasons victims cannot or will not report their abuse until they are older. In order to prevent abuse there is a need for the opportunity to prosecute perpetrators. ­While the courts and legislature have still not carved out a completely satisfactory solution with regard to the statute of limitations in childhood sexual abuse cases, many advances have occurred and much need for light has been shed on this very dark subject. The progress in the courts on this subject in the last fifteen years is a glowing example of how effective tort claims can be in correcting societal wrongs.


Notes

1 Dale, Peter, Adults Abused As Children, Sage Press (1999).
2 Journal of Consulting and Clinical Psychology 1994, Vol. 62, No. 6, 1167-1176
Journal of Consulting and Clinical Psychology 1994, Vol. 62. No. 3, 636-639
Statement on Memories of Sexual Abuse, American Psychiatric Association,
American Psychiatric Association Board of Trustee (1933)
vanderKolk, McFarlane, Weisaeth, Traumatic Stress (The Effects of Overwhelming Experience on
Mind, Body and Society), pp. 568-569 (vanderKolk, McFarlane, Weisaeth, eds. 1996)
vanderKolk, McFarlane, Weisaeth, Traumatic Stress (The Effects of Overwhelming Experience on
Mind, Body and Society), pp. 285-287 (vanderKolk, McFarlane, Weisaeth, eds. 1996)
vanderKolk, McFarlane, Weisaeth, Traumatic Stress (The Effects of Overwhelming Experience on
Mind, Body and Society), p. 290 (vanderKolk, McFarlane, Weisaeth, eds. 1996)
vanderKolk, McFarlane, Weisaeth, Traumatic Stress (The Effects of Overwhelming Experience on
Mind, Body and Society), pp. 290-291 (vanderKolk, McFarlane, Weisaeth, eds. 1996)
3 Section 8983587 Wisconsin Revised Statutes
4 Maine Revised Statute Annotated 14 §752-C
5 Doe v. Roe, 955 P.2d 951 (April 7, 1998)
6 California Civil Procedure Code Section 340.1
7 ALASKA STAT. Sec. 09.10.140 (1994)
ARK. CODE ANN. Sec. 16-56-130 (Michie Supp. 1995)
CAL. CIV. PROC. CODE Sec. 340.1 (West Supp. 1996)
COLO. REV. STAT. Sec. 13-80-103.7 (West. Supp. 1995)
CONN. GEN. STAT. Sec. 52-577d (West 1991) (extending period with no delayed accrual)
FLA. STAT. ANN Sec. 95.11(7)(1996)
GA. CODE ANN. Sec. 9-3-33.1 (Michie Supp. 1995)(extending period with no delayed accrual)
IDAHO CODE Sec. 6-1701-6-1705 (1990) (extending period with no delayed accrual)
3 1 IOWA CODE ANN. Sec. 614.8A (West Supp. 1995)
KAN. STAT. ANN. Sec. 60-523 (1994)
9 LA. REV. STAT. ANN. Sec. 2800.9 (West Supp. 1997) (extending period with no delayed accrual)
ME. REV. STAT. ANN. tit. 14, Sec. 752-C (West Supp. 1995)
MASS. ANN. LAW Ch. 260, Sec. 4c (West. Supp. 1995)
MINN. STAT. ANN. Sec. 541.073 (West Supp. 1996)
MO. ANN. STAT. Sec. 537-046 (Vernon Supp. 1996) MONT. CODE ANN. Sec. 27-2-216 (1995)
2 NEV. REV. STAT. Sec. 11.215 (1993)
N.J. STAT. ANN. Sec. 2A:61B-1 (West Supp. 1995)
N.M. STAT. ANN. Sec. 37-1-30, as amended by 1995 N.M. Laws 626
OKLA. STAT. ANN. tit. 12, Sec. 3-95(6)(West Supp. 1996)
2 OR. REV. STAT. Sec. 12.117 (1995); R.I. GEN. LAWS Sec. 9-1-51 (Michie Supp. 1995)
S.D. CODIFIED LAWS ANN. Sec. 26-10-25 (1992)
TEX. CIV. PRAC. & REM. CODE ANN. Sec. 16.0045 (1997) (extending period with no delayed accrual)
UTAH CODE ANN. Sec. 78-12-25.1 (Michie Supp. 1995)
VT. CODE ANN. tit. 12, Sec. 23-522 (Michie Supp. 1995)
VA. CODE ANN. Sec. 8.01-249 (Michie Supp. 1995)
WASH. REV. CODE Sec. 4/16/.340 (West Supp. 1996)
WISC. STAT. ANN. Sec. 893.587 (1995-96)
WYO. STAT. Sec. 1-3-105(b)(Michie Supp. 1995)
8 701 F. Supp. 1363
9 ILCS 5/13-202.2 (including 2003 amendments)
10 Finkelhor, David Sexually Victimized Children Free Press 1981, p. 21.
12 Finkelhor, David Sexually Victimized Children Free Press 1981 pp.105-106.
12 Clay v. Kuhl 189 Ill. 2d 603 727 N.E. 2d 217
13 735 ILCS 5/13-202.2

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