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

1843

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. SOC’Y 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.