By: Alee Corrales
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
A statute of limitations (SOL) determines how much time a person has after an event to initiate legal proceedings based on that event. There are SOLs in both criminal and civil law. While child sexual abuse (CSA) is a criminal act, many CSA survivors pursue their cases in civil court where they can hold perpetrators and negligent third parties accountable for the psychological and physical damages resulting from abuse.
Civil SOLs for CSA often bar claims for relief when a survivor comes forward later in life. Barring these cases from civil litigation leaves child abuse survivors without an avenue for justice and allows offenders to evade responsibility for the harm they caused. This post explores the need for civil SOL reform in Texas and Arkansas and looks at the SOL reform laws of other states as legislative examples to follow.
Policy Behind Statutes of Limitation
SOLs encourage the timely filing of lawsuits in order to protect defendants from “stale” claims and to offer certainty regarding the remedies and liabilities that could result from a particular case.
Delayed Reporting of CSA Creates Need for SOL Reform
Delayed Disclosure is “the phenomenon common to survivors of child sex abuse where individuals wait for years, often decades, before disclosing to others that they have been victims of abuse.” Children can fail to report because of power differences between the child and the offender, failure to comprehend the abuse sustained, and lack of support/belief when attempting to disclose abuse. According to the Department of Justice, 86% of CSA survivors never report their abuse. In the rare circumstance a survivor does report their abuse, the average age of doing so is 52 years.
Arkansas’ Civil Statute of Limitation for Child Sexual Abuse Cases
In Arkansas, a survivor of CSA can file a civil claim until 21 years of age (legal adulthood, 18, plus 3 years) or within 3 years of discovering the CSA. (Ark. Code Ann. § 16-56-130).
Positives: The discovery rule. This rule allows a survivor to bring a claim within three years of discovering “the effect of the injury or condition attributable to the childhood sexual abuse.”
Negatives: States courts have yet to interpret the discovery rule, leaving its application unknown. Additionally, if a court found the survivor had previously “discovered” the effect or injury of their child abuse, they would not be eligible to use the discovery rule.
Potential Improvements: Full elimination of the civil SOL for CSA cases or revival legislation to reopen the window for claims that are presently time-barred.
Texas’ Civil Statute of Limitation for Child Sexual Abuse Cases
In Texas, a CSA survivor must file their civil claim before the age of 48 (legal adulthood, 18, plus 30 years). (Tex. Civ. Prac. & Rem Code § 16.0045). Or within 30 years after discovering “an alleged wrongful act and resulting injury . . . inherently undiscoverable at the time they occurred” when the survivor exercised due diligence.
Positives: 30 years would cover some cases of delayed reporting, but certainly not all.
Negatives: The discovery rule is sorely narrow and has yet to successfully toll a civil SOL in a CSA case. A Texas appellate court held the discovery rule inapplicable when the survivor previously reported their abuse because reporting signified earlier discovery of the “wrongful acts.” Similarly, a Texas district court held the discovery rule inapplicable when a survivor previously knew of his abuse and the resulting psychological and emotional problems.
Potential Improvements: Full elimination of the civil SOL for CSA cases or revival legislation to reopen the window for claims that are presently time-barred.
Model States
CHILD USA (a think tank devoted to ending child abuse) developed a ranking system to compare civil SOLs for CSA claims state by state. In the civil SOL Age Cap Ranking, with 5 being the worst and 1 being the best, there are 13 states who scored a 1 because they have no civil SOLs for “at least some child sex abuse claims.” Texas scored a 3 because its age cap falls between ages 35-49, and Arkansas scored a 5 because its age cap is less than 25 years of age (aside from the delayed discovery rule).
Instead of removing the civil SOL for child sexual abuse cases, 19 states have implemented revival laws that allow survivors to file claims otherwise barred by the civil SOL. Notably, Guam and Vermont permanently opened a “revival window for all claims against all types of defendants.” Other states have legislated revival laws for child sexual abuse cases based on one or more of the following criteria: claims filed within a 2-year window, claims filed by survivors in a specific age category, claims against offenders but not against negligent third parties, or claims against doctors. Unfortunately, neither Texas nor Arkansas have any revival laws for civil claims of CSA.
What You Can Do
If you want to help reform the civil SOL for CSA cases, contact your state legislators and tell them you are in favor of eliminating the civil SOL for CSA cases and are in favor of revival laws that give time-barred claims another shot at litigation (State Legislature Directories: Arkansas, Texas).
Additionally, voice support for survivors of CSA through involvement with national advocacy groups such as SNAP (Survivors Network of those Abused by Priests: Arkansas, Texas) and your local children’s advocacy centers.