Child Sexual Abuse and the Discovery Rule: Do Adult Survivors of Child Sexual Abuse Have Causes of Action Against Their Childhood Abusers?

• NCJ Number: 148845
• Journal: Journal of Juvenile Law Volume: 14 Dated: (1993) Pages: 82-92
• Author(s): M W Hull
• Date Published: 1993
• Length: 11 pages
• Publication Format: Article
• Publication Type: Survey
• Language: English
• Country: United States of America

Annotation

The application of the discovery rule in civil actions involving child sexual abuse victims who assert that they have fully repressed the memory of the abuse is discussed.

Abstract

This note explores the various approaches taken with respect to the application of the discovery rule to provide insight into both the way in which the resolution of this issue has been evolving and the direction in which it is likely to continue to evolve. Each court that has addressed this issue for the first time has weighed the equities surrounding the operation of the applicable statute of limitation before making the determination as to whether the discovery rule should be applied to the case before it. This note classifies the applicable statutes and judicial holdings into four broad approaches: the discovery rule applies, tolling the limitation period until the adult survivor discovers the injury; the limitation period extends for a specified number of years past majority, but once this period of repose expires, suit may not be brought notwithstanding the victim's later discovery of the injury; no limitation period applies where the plaintiff proves by clear and convincing evidence that the sexual abuse did in fact occur; and the discovery rule does not apply. A review of established principles regarding the functions served by statutes of limitation and the use of the discovery rule are presented. The author concludes that, for justice to be served, the discovery rule should be applied where the alleged victim of child sexual abuse has fully repressed the memory of the abuse. Ultimately, the plaintiff still carries the burden of proving that the defendant did actually sexually abuse the plaintiff as a child, that the plaintiff had fully repressed this memory, and that the plaintiff has brought suit within the applicable limitations period after discovery. The trier of fact is more than capable of making the determination of whether there is sufficient evidence to support the plaintiff's claim. Footnotes