Creating a Civil Remedy in Georgia for Survivors of Out-of-state Childhood Sexual Abuse

Publication year2022

Creating a Civil Remedy in Georgia for Survivors of Out-of-State Childhood Sexual Abuse

Alexandra H. Bradley

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Creating a Civil Remedy in Georgia for Survivors of Out-of-State Childhood Sexual Abuse*

Alexandra H. Bradley

I. Introduction

Sexual abuse casts long shadows and causes long-lasting effects on its survivors, particularly children.1 Especially tragic, most abused children are abused by an adult whom that child knows and trusts.2 This abuse by anyone, especially by a child's parents or close family friend, often causes lifelong emotional damage. Survivors generally do not recognize the extent of their abuse until many years later.

This late onset or delayed discovery has made it difficult for courts to provide redress. Although technically children could sue their abuser when the abuse occurs, children generally do not know they have a cause of action, nor do they have structures around them directing them to

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their legal rights.3 For this reason, in 2015, Georgia's legislature provided survivors with a statutory civil cause of action via the Hidden Predator Act (HPA), Official Code of Georgia Annotated section 9-3-33.1.4 The HPA allows survivors to bypass what would otherwise be time-barred claims and, in theory, to sue their abusers for monetary damages during adulthood once the survivors become aware of their abuse.5

The HPA provided a brief period that allowed for childhood sexual abuse survivors to sue for previously time-barred civil claims arising out of their abuse.6 Under this brief period, the plaintiff in Harvey v. Merchan,7 Joy Caroline Harvey Merchan (Merchan), sued her parents for twenty-two years of sexual abuse.8 With Harvey, the Georgia Supreme Court paved the way for childhood sexual assault survivors to sue in Georgia for their abuse that occurred out of the state.9

While the Harvey decision and implementation of the HPA were important steps towards providing survivors full redress for their abuse

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and deterring future abuse, the legislature still has steps it needs to take to achieve these goals adequately.10


Merchan allegedly endured sexual abuse by her parents throughout her childhood, from her earliest memories, to when she moved out of her parents' home.11 This abuse occurred in Quebec, Canada and Savannah, Georgia.12 When Merchan and her parents (Harveys) lived in Quebec, she was "sexually abused . . . frequently and repeatedly."13 Merchan and her parents left Quebec and moved to Savannah when Merchan was fifteen.14 After moving to Savannah, Merchan stated the "physical abuse 'died down' and 'seemed to not be as prevalent,'" but her father would continue to watch her shower and comment on her body.15 After Merchan moved out, she experienced the trauma that often follows abuse.16 She is still dealing with the damages to her mental and emotional health today.17

Merchan moved out of her parents' home at twenty-two, but did not sue her parents until she turned forty.18 She was able to sue under the revival window in the HPA.19 She sued for negligence, intentional infliction of emotional distress, sexual battery, and assault.20 The Harveys responded by filing a motion to dismiss and a motion for summary judgment.21 In their motions, the Harveys argued that the HPA did not create a cause of action for acts of abuse that occurred after the

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age of eighteen or for acts that occurred outside Georgia.22 The motions also argued that the HPA violated the Due Process Clause, the Equal Protection Clause, and Georgia's constitutional prohibition against retroactive laws. The Carroll Superior Court granted the motion to dismiss the negligence claim, but otherwise denied the motions. The trial court concluded that if the mens rea and actus reus elements of the action under the HPA are met, a tort from another jurisdiction can be brought in Georgia.23

Ultimately, these questions were before the Georgia Supreme Court.24 The first was whether Georgia or Canadian law applied to Merchan's claims.25 The second was whether O.C.G.A. § 9-3-33.1 applies to the incidents that occurred in Quebec.26 The third was whether Quebec's or Georgia's statute of limitations applies.27 The fourth was whether the continuing tort theory applies to Merchan's claims.28 The final was if O.C.G.A § 9-3-33.1 is unconstitutional.29

On the first, the court held that Georgia procedural law applied to all incidents, Georgia substantive law applies only to the incidents that occurred in Georgia, and Quebec substantive law applies to the incidents that occurred in Quebec.30 On the second, the court concluded that Merchan could press a claim for the abuse that occurred in Quebec

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alongside her claims from Georgia.31 On the third, the Court determined that whichever statute of limitations was shorter—Georgia's or Quebec's—would apply.32 The court remanded this case to the trial court to determine which statute of limitations is shorter and should apply.33 On the fourth, the court determined the continuing tort theory does not apply to sexual assault claims.34 Finally, the court held that the HPA is constitutional.35 The court expanded the scope of the Hidden Predator Act to include civil claims for acts of abuse occurring outside of Georgia.36

III. Legal Background

A. An Overview of the Hidden Predator Act

1. Hidden Predator Act of 2015

a. Hidden Predator Act Today

Georgia's Hidden Predator Act of 2015 opened the door for childhood sexual assault survivors to sue as an adult if their claims had become time-barred.37 Currently, the wording of the HPA allows survivors to sue "on or before" they turn twenty-three and within two years of when they "knew or had reason to know" of their abuse.38 A brief, two-year revival period in the Act allowed "time-barred" plaintiffs of a "civil action for injuries resulting from childhood sexual abuse" to be revived, but this revival time has since been closed.39

The HPA has led to certain instances of redress for survivors. It helped lead to the wave of sexual abuse claims against USA Gymnastics (USAG) doctors and coaches, which ultimately led to the Larry Nassar (Nassar)

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sexual abuse scandal.40 A Georgia case was "'ground zero [for] the litigation and fallout of USA Gymnastics.'"41 In Jane Doe v. USA Gymnastics, a Savannah resident sued her USAG coach, William McCabe (McCabe), for sexual abuse.42 Jane Doe was not the only victim, and McCabe is now serving a thirty-year sentence for child sexual exploitation from a separate case.43 After Jane Doe, The Indianapolis Star (IndyStar) launched multiple investigations into USAG and their coverup of sexual abuse.44 IndyStar intervened in Jane Doe's suit, and the HPA allowed them to retrieve documents from USAG, proving it was covering up abuse.45 These documents exposed allegations and sexual harassment complaints against McCabe.46 IndyStar published an article about the case and investigation, which encouraged over 150 survivors to come forward about their abuse by Nassar and about their reports to USAG.47 Jane Doe's courage compelled these survivors to speak out against USAG, and the investigation results exposed the coverup, which led to USAG's leadership upheaval. Jane Doe also encouraged the fight for HPA legislation to hold organizations liable for coverups.48

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b. Statute of Limitations

Prior to the implementation of the HPA, Georgia's statute of limitations against claims of childhood sexual abuse was one of the narrowest in the United States because it did not provide survivors time to process or acknowledge their abuse.49 The civil statute of limitations applied to abuse up until the survivor was twenty-three for claims against individual perpetrators and twenty for claims against all other defendants.50 Georgia's current statute of limitations covers abuse that occurred until the survivor turned twenty-three and allows for a delayed discovery window of two years.51

c. Delayed Discovery Window

The delayed discovery window allows survivors of abuse "committed on or after July 1, 2015," to sue their abuser "[o]n or before the date the plaintiff attains the age of 23 years; or [w]ithin two years from the date the plaintiff knew or had reason to know of such abuse and that such abuse resulted in injury to the plaintiff as established by competent medical or psychological evidence."52 The delayed discovery window of two years after the date of discovery allows survivors time to acknowledge or process their abuse in therapy. If a survivor files under the delayed discovery window, there must be a pretrial hearing within six months of filing the action to prove the true date of discovery.53 With this window in place, childhood sexual abuse claims "do not accrue until the victim knows two things: (1) that the conduct was abuse, and (2) that the abuse resulted in an injury. From that point, they have two years to bring a civil suit against the perpetrator."54

As this delayed discovery window is only open to people twenty-three or older that suffered abuse occurring on or after July 1, 2015, the courts

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have not seen much litigation under this provision yet.55 Increased litigation may begin over the next several years due to the maturing age of the survivors, which will qualify them under the delayed discovery window.

2. Georgia's Attempts to Amend the Hidden Predator Act

Legislators have been seeking to raise the age limit for the tolling statute of limitation for the past few years.56 Advocates for the age range increase have argued that many survivors do not realize they experienced abuse or cannot fully process their childhood sexual abuse until they reach a mature age.57 Advocates for this change compare the long-term effects of childhood abuse to post-traumatic stress disorder that is experienced by veterans.58

The proposed, updated version of HPA legislation will revisit the terms of the HPA and will be voted on in the Georgia...

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