Reasonable for Whom? Developing a More Sensible Approach to the Discovery Rule in Civil Actions Based on Childhood Sexual Abuse

Author:Theodore R.A. Ovrom
Position:J.D. Candidate, The University of Iowa College of Law, 2018; B.A., Reed College, 2013
Pages:1843-1877
SUMMARY

Civil actions based on childhood sexual abuse ("CSA"), like all other actions in tort, are subject to fixed limitations periods. A substantial majority of states apply the discovery rule to actions based on CSA, putatively as a tolling mechanism for plaintiffs who reasonably failed to discover their causes of action within the limitations period. In these states, judges often dismiss actions... (see full summary)

 
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Reasonable for Whom? Developing a
More Sensible Approach to the Discovery
Rule in Civil Actions Based on Childhood
Sexual Abuse
Theodore R.A. Ovrom*
ABSTRACT: Civil actions based on childhood sexual abuse (“CSA”), like all
other actions in tort, are subject to fixed limitations periods. A substantial
majority of states apply the discovery rule to actions based on CSA, putatively
as a tolling mechanism for plaintiffs who reasonably failed to discover their
causes of action within the limitations period. In these states, judges often
dismiss actions based on CSA after deciding that the plaintiff failed to exercise
reasonable diligence and discover his or her action sooner. This Note argues
that imposing a traditional standard of reasonable diligence to dispose of CSA
cases as a matter of law is a mistake in view of CSA’s unique impact on its
victims and the complex factual and legal allegations that typify CSA
litigation. This Note contends that a jury is in a much better position to judge
the reasonableness of a CSA survivor’s discovery of his or her action, and
proposes legislative and judicial reform to preserve such questions for the trier
of fact.
I.INTRODUCTION ........................................................................... 1844
II.THE SOCIAL AND LEGAL FRAMEWORK OF CSA LITIGATION........ 1846
A.SOCIAL BACKGROUND ............................................................ 1846
B.LEGAL BACKGROUND ............................................................. 1848
1.Statutes of Limitations ................................................ 1848
i.In General ............................................................... 1848
ii.In CSA Cases ........................................................... 1849
2.The Discovery Rule ..................................................... 1850
i.In General ............................................................... 1850
ii.In CSA Cases ........................................................... 1850
*
J.D. Candidate, The University of Iowa College of Law, 2018; B.A., Reed College, 2013.
1844 IOWA LAW REVIEW [Vol. 103:1843
III.THE PROBLEMS INHERENT IN DECIDING THE DISCOVERY
QUESTION AS A MATTER OF LAW ............................................... 1853
A.THE PROBLEM IN ACTION: PARKS V. KOWNACKI .................... 1853
1.The Facts ...................................................................... 1854
2.The Lawsuit.................................................................. 1858
B.THE COMPLICATIONS OF CSA AND CSA LITIGATION ............... 1860
1.The Unique Effects of CSA on the Victim................. 1860
2.The Factual and Legal Complexity of CSA Cases ..... 1862
i.Injury ...................................................................... 1863
ii.Liability .................................................................. 1865
C.THE DEMAND FOR A SOLUTION .............................................. 1867
IV.A PROPOSAL FOR REFORM ........................................................... 1868
A.THEORY ................................................................................ 1868
B.IMPLEMENTATION ................................................................. 1871
1.Legislative Reform ....................................................... 1872
2.Judicial Reform ............................................................ 1873
C.POTENTIAL OBJECTIONS ........................................................ 1874
V.CONCLUSION .............................................................................. 1877
I. INTRODUCTION
Childhood sexual abuse (“CSA”) is a well-recognized epidemic in which
older individuals in positions of power exploit and abuse children for sexual
gratification.1 Children, who are tormented with such abuse before reaching
an age at which they can fully appreciate the nature of sexual contact,2
frequently suffer severe developmental, psychological, and emotional
impairments because of such exploitation.3 These injuries can be both short-
term and long-term, and may have a delayed onset.4 In short, CSA can inflict
a lifetime of suffering.
Understandably, CSA survivors often wish to sue their abusers and any
third parties that enabled the abuse to demand compensation for their
injuries. Civil actions based on CSA serve a number of important functions:
They vindicate survivors’ suffering, hold culpable parties accountable, deter
the future commission of such intentional or negligent acts, compensate
1. See Marci A. Hamilton, The Time Has Come for a Restatement of Child Sex Abuse, 79 BROOK.
L. REV. 397, 398–400 (2014).
2. Id. at 399–400 (“Social science studies have shown that children in fact do not full y
understand (if they understand it at all) what sex is, and certainly have no idea of the lifelong
consequences of being sexually assaulted.”).
3. DARKNESS TO LIGHT, CHILD SEXUAL ABUSE STATISTICS: CONSEQUENCES 1–4 (2015), https://
www.d2l.org/wp-content/uploads/2017/01/Statistics_5_Consequences.pdf.
4. Id.
2018] REASONABLE FOR WHOM 1845
victims for their ongoing injuries and the expenses of treating such injuries,
and educate the public about CSA.5 However, because of the unique
characteristics of CSA and the injuries it creates, it takes victims decades to
report the abuse, and most never do.6 CSA thus poses a difficult problem for
the legal system, which generally imposes short and inflexible time limits on
bringing civil actions.7
While civil actions based on CSA were traditionally lumped in with other
personal-injury actions, most states have developed an individualized
treatment of CSA.8 Today, the vast majority of states have a special limitations
period for CSA lawsuits.9 Moreover, most of these states allow the discovery
rule to toll the statute of limitations for survivors who were blamelessly
unaware of their claims during the limitations period.10 Nevertheless, courts
still deny many CSA victims the opportunity to prove their allegations.11 This
dismissal often occurs when judges applying the discovery rule conclude at
the outset that a plaintiff failed to exercise reasonable diligence in the
aftermath of the abuse, such that the plaintiff’s claims are time-barred.12
As this Note will demonstrate, the traditional legal standard of reasonable
diligence is entirely inapposite in CSA litigation. CSA lawsuits often present
intricate factual and legal allegations, which reflect CSA’s extraordinary
nature as a social and legal harm.13 For instance, psychological defense
mechanisms can work in tandem with abusers’ manipul ation and coercion to
block victims’ memories of abuse and deter them from reporting.14 Those
victims who eventually do report frequently allege multifaceted injuries and
complex theories of liability, especially where negligent third parties enabled
the abuse.15 The traditional discovery rule—which asks a simple yes or no
question—was not built to handle these allegations. As a result, judges trying
to answer the discovery question as a matter of law invariably oversimplify or
5. See Cynthia Grant Bowman, The Manipulation of Legal Remedies to Deter Suits by Survivors of
Childhood Sexual Abuse, 92 NW. U. L. REV. 1481, 1481 (1998).
6. See Hamilton, supra note 1, at 398 (“[T]he vast majority of [CSA] victims need decades
to come forward, and many never do.”); infra note 19 and accompanying text.
7. Andrew J. Wistrich, Procrastination, Deadlines, and Statutes of Limitation, 50 WM. & MARY
L. REV. 607, 609–10 (2008).
8. See infra Part II.B.1.ii.
9. See infra Part II.B.1.ii.
10. See infra Part II.B.2.
11. See Joshua Lushnat, Note, Sexual Abuse Memory Repression: The Questionable Injustice of
Demeyer, 13 J.L. SOCY 529, 531 (2012) (“Absent a slam-dunk-case brought immediately after
the incident, civil vindication for [CSA] victim[s] is rather difficult to obtain.”).
12. See infra Part III.A.2.
13. See infra Part III.B.
14. See infra Part III.B.1.
15. See infra Part III.B.2.

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