Sex abuse is an epidemic that has left victims in a tragic wake of physical, emotional and psychological turmoil that affects their daily life, health and social interactions. Studies by David Finkelhor, Director of the Crimes Against Children Research Center, show that 1 in 5 girls and 1 in 20 boys is a victim of child sexual abuse. A little over 25% of this abuse occurs between the ages of 14 to 17 years old, when children are most impressionably and vulnerable. Consequently, due to the immaturity of these victims, the embarrassment, the self-loathing, and other combined factors, many push these demonic memories deep into their subconscious as a coping mechanism. Like a volcano, the memories lie dormant until a triggering event results in the recall of events which have festered below the surface for years.
With recent changes in legislation across the country, people with freshly unearthed memories now have the ability to address these claims against their perpetrators for events that may have happened 20, 30, even over 40 years earlier. This begs the question—when is a victim too late to bring a claim?
The viability for sexual abuse claim within the appropriate statute of limitations requires a more in-depth analysis than a traditional personal injury action addressing:
- When did the action accrue in relation to the applicable statute for that time?
- What is the applicable statutory for that time period?
- Does the statute allow for equitable principles of delayed discovery or estoppel?
Accrual of Cause of Action
A cause of action accrues, and the limitations period begins to run, when “the cause of action is complete with all of its elements.” Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 Cal.4th 797, 806. This could also mean, when the final abusive act occurred. John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 444; V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 510. Under certain circumstances, however, the accrual of the action may be postponed, and the running of the limitations period tolled “until the plaintiff discovers or has reason to discover the cause of action”. [Citations.] A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ [Citations.] Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” Id. at p. 807. In sexual abuse cases, ordinarily the cause of action accrued at the time of the alleged abuse. Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 210.
Applicable Statute of Limitations
In the early 1970’s the limitations period for claims alleging sexual abuse of a child was one year from the time the cause of action accrued. It was not until 1986 that California Code of Civil Procedure 340.1 was first enacted for actions alleging sexual abuse of a minor when the perpetrator was a member of the minor’s household. The 1986 statute did not apply to third party claims.
It was not until 1990 that the delayed discovery rule of 8 years following the age of majority was enacted. However, it did not apply to third-party defendants such as schools or religious institutions. In fact, it was not until 1998 that the statute permitted actions against third party defendant. Even with this new relief, it did not revive claims for any victims that had already reached the age of 26. It also specifically stated that the amendment did not create a new theory of liability as against third parties.
With the growing concern and continuing pressure to permit sexual abuse victims a longer time period in which to learn of their psychological injuries and remain eligible to sue their abusers, in 2002 the legislature enacted a subcategory of third party defendants against whom actions could be brought within eight years of majority or three years of discovery of the injury to the victim. Third parties were no longer subject to the absolute cut-off of age 26, where the delayed discovery rule applied to them. Under the 2002 amended statute, a category of third-party defendants would be exposed to liability in any action by a plaintiff to recover damages suffered because of childhood sexual abuse for the same extended period as direct perpetrators.
The California Child Victims Act SB 218(q) (effective January 1, 2020) provides “Notwithstanding any other provision of law, any claim for damages . . . that has not been litigated to finality and that would otherwise be barred as of January 1, 2020, because the applicable statute of limitations, claim presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision.”
Under the simplest interpretation of this statutory language, it suggests that any claim barred by January 1, 2020 can be brought before January 1, 2023. This new statutory scheme presents an interesting quandary. If there is an individual who suffered sexual abuse in 1990 that is now purportedly revived, are they barred from asserting a claim against anyone other than the perpetrator? If it is against a government entity for an abuse that occurred before January 1, 2009, which would have required compliance with the Government Tort Claims Act under Government Code section 945.6, does that mean it would be revived for statute of limitations, but dismissed for failure to comply with the government tort claims requirements. Accordingly, the revival period inquiry may require a more in-depth review than anticipated.
Equitable Tolling
The last area to explore concerns equitable principles that toll the accrue date which, by its very nature, could change which statutory scheme is at issue when the claim is presented. This generally falls into two categories: delayed discovery and equitable estoppel.
A cause of action is postponed until the plaintiff discovers, or has reason to discover, the cause of action under the delayed discovery doctrine. K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1233. Suspicion of one or more elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 516. For delayed discovery, courts have invoked the equitable delayed discovery rule if the victim can allege that he or she, given their youth, ignorance, and inexperience, lacked a real awareness that what happened to them was wrong. The terrorization which allows an abuser to groom and take advantage of a child does not suddenly cease. Indeed, it can continue into the victim’s adulthood. That is exactly why the Legislature drafted the delayed discovery provisions of section 340.1 to provide that the limitations period begins to run only after the victim, who is then an adult, appreciates the wrongfulness of the abuser’s conduct. Any other conclusion would contradict the goal of the statute and serve only to reward perpetrators who engage in long-term abuse.
- Delayed Discovery
An illustration of delayed discovery is oftentimes simply based upon the age of the victim. In K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229 the delayed discovery rule applied where the perpetrator “took advantage of his position of authority as [her] teacher to cause her to have a dependent, sexual relationship with him. [He] exploited [K.J.’s] age of minority, vulnerability and confidence to seduce her into an unlawful and harmful sexual relationship,” a relationship which continued for 2 ½ years, until K.J. graduated from high school. Even after the arrest, K.J. believed that she was in love with her teacher and that he had done nothing wrong.” It was not until years later, because of psychotherapy, that she first realized that she had been victimized when she was most vulnerable.
Delayed discovery can also be encapsulated in the concept of delayed or repressed memory. It is possible for adults to not remember episodes of childhood abuse, even if definitive records of abuse occurred. Most people remember bad things, but sometimes extreme trauma is buried in the subconscious. This type of dissociative disorder is not well understood and often questioned. Until the mind of the victim makes an association with the feelings or senses connected with the trauma, the memory of the event could remain dormant to be discovered at a much later time. These memories can be triggered by reading stories about other people’s trauma, information on the news, reviewing photographs, or even a phone call from someone in the past. These temporal experiences can unearth the floodgates of frightful and horrible memories hidden in the shadows.
Memory, unfortunately, does not capture and retain every moment like a recording device. The brain processes information and stores it in different ways some of which is easily accessible, others remote, and some just get forgotten. Extreme trauma such as sexual abuse can interrupt a person’s ability to store that information as a defense mechanism through dissociation, or as a way of sheltering himself or herself from the pain of the memory. Consequently, there is no requirement in section 340.1 that, as a prerequisite to making a delayed discovery claim, a victim have repressed the memories of the abuse, in order to plead such delayed discovery. Rather, the Legislature accepts the concept that a plaintiff may not be able to make the connection between early mistreatment and adult psychological problems until reaching adulthood and obtaining insights gained through triggering events and experiences.
It’s difficult to scrutinize exactly what causes a repressed memory because what’s considered traumatic for one individual may manifest differently for another. As a protection mechanism, some brains find it easier to forgot in the hope these nightmares do not resurface. Repressed memory can protect an abuse victim from other extreme emotions, such as anger, fear, and negative ideations. The brain simply tells the bodies that it cannot handle the reality of trauma. Even the victims can be blinded from the emotional symptoms tied to the sexual abuse. It is often only through serial psychological counseling and trauma therapy that these individuals can begin to unravel the causal nexus between the conduct and the manifestation of their losses.
- Equitable Estoppel
Another equitable principle to toll the accrue period for sexual abuse is where a victim has been prevented or deterred from filing of a timely claim by some affirmative act. Estoppel most commonly results from misleading statements about the need for or advisability of a claim. John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445. It can also be established by acts of intimidation or violence intended to prevent filing a claim. In John R., the court found that the doctrine of equitable estoppel applicable when a student failed to tell his parents about a teacher’s sexual abuse because the teacher threatened to retaliate if he disclosed the incidents. The Supreme Court held that the teacher’s threats prevented the student from pursuing his claim within the statutory period. A directive by an authority figure to a child not to tell anyone of the molestation is a sufficient inducement of delay to invoke an estoppel.
In Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4th 556, 559 the court applied estoppel where the counselor made ongoing threats to publicly humiliate plaintiff if he ever disclosed the molestation. The counselor, using his position as an authority figure, cunningly played off plaintiff’s typical adolescent concerns about his popularity among his classmates. Even after Doe graduated, the counselor actively pursued Doe, subjecting him to threatening telephone calls, discovering where he lived, and ingratiating himself with plaintiff’s roommate in order to gain access to their apartment when he was absent. The court concluded that the threats had a deterrent effect until he disclosed the abuse for the first time in late 2001 after being enrolled in a witness protection program and receiving counseling for a psychotherapist.
A delay in reporting abuse under these circumstances is a common phenomenon. Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, 173. When the abuse is coupled with ongoing threats, this may be sufficient evidence to support an estoppel. In Christopher P. v. Mojave Unified School Dist. an 11–year–old student, molested by a teacher, was told not to tell anyone. The student waited over six months to report the abuse. The court opined a directive by an authority figure to a child not to tell anyone of the molestation is a sufficient inducement of delay to invoke an estoppel.
Conclusion
Unlike a car crash which has a definitive date of occurrence, the statute of limitations for sexual abuse victims requires a more in-depth calculation depending upon when the conduct occurred, what was the manifestation of injury, when did the victim realize the conduct caused the harm, and during what particular time frame did this realization take place. With the new law, it behooves attorneys take that extra step to find arguments which will preserve victim’s rights. It is up to us to give voice to hundreds, if not thousands, of victims who need an advocate to frame what happened to them and let the world know it was wrong. We must give them empowerment. Otherwise, even with legislative efforts, the recovery process cannot commence.