THE INEQUITY AND INAPPROPRIATENESS OF APPLYING STATUTES OF LIMITATIONS TO CIVIL ACTIONS ARISING FROM CHILDHOOD SEXUAL ABUSE

• Published date: 01 January 1993
• Date: 01 January 1993
• Author: Beth Beattie
• DOI: http://doi.org/10.1111/j.174-1617.1993.tb00283.x

1992

LAW SCHOOL ESSAY CONTEST WINNER

THE INEQUITY AND INAPPROPRIATENESS

OF APPLYING STATUTES OF LIMITATIONS

TO CML ACTIONS ARISING FROM

CHILDHOOD

SEXUAL ABUSE

Beth Beattie

This research examines the long-term consequences

of

childhood sexual abuse, the unique

circumstances surrounding such abuse, and how these circumstances lead to victims being

unable

to

expeditiously initiate civil action against fheir abusers.

The

unfairness and

the

inappropriateness

of

applying traditional time limitation principals to plaintiff victims

of

childhood sexual abuse are then discussed

Finally,

a more equitable test to

be

applied to mses

involving actions by adult victims

of

childhood sexual abuse against iheir abusers is proposed.

In recent years, there has been a growing recognition of the problem of

child sexual abuse. It has only been in

the

past few years that civil actions

have been brought by victims

of

child sexual abuse against their assailants

for injuries resulting from that abuse. Often, a victim of childhood sexual

abuse is unable to bring an action against her abuser until years after the abuse

has ended and she has entered adulthood.

This

delay may be because the

victim cannot remember the abuse or does not realize the long-term

effects

of the abuse until she is

an

adult or is not psychologically or emotionally able

to bring such action until later in life. Unfortunately, statutes of limitations

often act to prevent such victims from bringing actions against their abusers,

and

thus

victims

of

childhood sexual abuse are denied their just awards. This

essay discusses the ways in which limitation legislation creates procedural

and substantive obstacles that are inequitable and inappropriate in light of

policy considerations that favor compensation for childhood sexual-abuse-

related injuries.

FORMAT

In this essay, the purpose and policy behind limitation statutes is dis-

cussed. How a court applies limitation statutes to a case

of

an

adult survivor

FAMILY

AND CONCILIATION COURTS

REVIEW,

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1

No.

1,

January

1993 65-89

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Publications,

Inc.

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FAh4EY

AND CONCLIATION

COURTS

REVIEW

of childhood sexual abuse suing her assailant’ after the limitation period has

passed is examined by reference to the British Columbia (Canada) case

K.E.G.

v.

G.R.

Although a plaintiff might

be

able to proceed with an action

despite the expiration of the statutory time period by invocation of postpone-

ments provisions, given the reasoning of the

court

in

K.E.G. G.R.

it will be

seen that this

is

only permitted in very limited circumstances.

The different limitation legislation in the Canadian provinces of British

Columbia, Nova Scotia, and Ontario and their impact on potential plaintiffs

are considered. The long-term consequences of childhood sexual abuse, the

unique circumstances surrounding such abuse, and how these circumstances

lead to victims being unable

to

expeditiously initiate civil action against their

abusers are examined. The unfairness and the inappropriateness of applying

traditional time limitation principles

to

plaintiff victims of childhood sexual

abuse are then discussed. Finally, a more equitable test to

be

applied to cases

involving actions by adult victims of childhood sexual abuse against their

abusers is proposed.

STATUTES

OF

LIMITATIONS

The most serious procedural obstacle confronting the adult survivor of

child sexual abuse (CSA) trying to pursue a civil suit against her abuser is

the application of statutes of limitations to traditional tort claims. The purpose

of limitation statutes is to provide a wrongfully injured party with a reason-

able opportunity to secure compensation while protecting potential defen-

dants from the

risk

of perpetual liability for past actions. In addition, these

statutes are designed to maximize judicial fairness and reliability of outcome

by disfavoring stale suits where “evidence has been lost, memories faded,

and witnesses have disappeared” (Salten,

1984,

p.

207).

In personal injury actions, the time period during which a plaintiff is

permitted access to the courts is generally measured from the day that her

cause of action “accrues”. The accrual date is generally defined by statute or

judicial interpretation as the date on which the wrongful act(s) by the

defendant against the plaintiff

took

place. The defendant’s act is deemed to

be the legal injury that triggers the plaintiff‘s cause of action.

As

applied to

most ordinary tort cases, this interpretation of accrual is not unreasonable

as

the tortuous conduct itself provides sufficient notice

to

the plaintiff of the

defendant’s liability for consequent injuries. In the words

of

Melissa Salten

(

19841,