Childhood Sexual Abuse-Statute of Limitations-Civil and Criminal
Childhood Sexual Abuse is one of the most traumatic experiences that a person can endure in their childhood. In many instances, childhood sexual abuse can go on for months, even years without anyone reporting the occurrence of the abuse. In some instances, some victims fail to report the abuse for months to years, even decades, for a variety of reasons. These reasons can range from:
- Fear of the perpetrator
- Embarrassment of being a victim of such abuse
- Not wanting to face the trauma of the abuse
- Wanting to forget what happened and move on
- In some instances, the victim may recover the repressed the memory of the sexual abuse during their adulthood
Civil Statute of Limitations
Recognizing these reasons, the State legislature over the past several decades have made changes to the Statute of Limitations to help the victims obtain relief in civil causes of action. Specifically, the legislature has made changes to the statute of limitations for filing a cause of action of Childhood Sexual Abuse by extending the limitations time period for filing. The statute of limitations in child sex abuse cases plays a very important role when determining the viability of filing a cause of action in the civil courts.
The current Statute of Limitations for filing a cause of action in the civil courts is 20 years after the victim’s 18thbirthday. This time period for filing has been extended significantly over the past several decades. The statute defines Childhood Sexual Abuse as an act of sexual abuse that occurs when the person abused was UNDER 18 years of age at the time of the abuse. The statute of limitations does not begin running until the victim turns 18.
There are also nuances to the Statute of Limitations that a victim should be aware of if they are considering to file this type of cause of action. There are traditional and specific nuances to the statute of limitations. The traditional nuances to filing under the civil statute of limitations that apply to all civil cases. Those traditional nuances include:
- Plaintiff is a minor.
- Plaintiff has been deemed insane.
- Plaintiff has been convicted of a felony and is imprisoned
- Defendant is in bankruptcy.
- Defendant is not physically present in a state.
- Filing of an action which is later voluntarily dismissed.
- Parties were engaged in good-faith negotiations to resolve the dispute
There are specific nuances to the statute of limitations that apply specifically to a civil cause of action of Childhood Sexual Abuse. Those specific nuances include:
- One such nuance is what is known as the “Discovery Rule.” The discovery rule is a variation to the statute’s requirement that the 20-year period begins to run after the victim has attained the age of 18. The discovery rule tolls (Tolling is a legal doctrine which allows for the pausing or delaying of the running of the period of time set forth by a statute of limitations) the statute of limitations until the person discoversthat they were victims of the sexual abuse and that they sustained an injury resulting from the sexual abuse. One scenario triggering the discovery rule is when a victim previously repressed the memory of the sexual abuse and recovered that memory through psychotherapy. When that memory is recovered and it is determined that the injury was caused by the childhood sexual abuse, then the statute of limitations begins to run from the date the victim discovers BOTH the memory of the abuse and that the injury they sustained was caused by the sexual abuse. Knowledge of the abuse alone does not trigger the “discovery rule” alone but the victim must also discover that he or she sustained an injury caused by the sexual abuse.
- Another variation to the discovery rule is when there is a continuing series of childhood sexual abuse by the same abuser. To give rise to the continuing series variation, the injury must be caused by two or more acts of the childhood sexual abuse that are a part of the continuing series of sexual abuse by the same abuser. The discovery rule shall be computed for the date the victim abused discovers both the last act of childhood sexual abuse occurred in the continuing series and that the injury was caused by ANY act of the childhood sexual abuse in the continuing series. Knowledge of the abuse alone does not trigger the “discovery rule” alone either in this variation. As with the previously mentioned variation of the discovery rule, the victim must also discover that the injury sustained by the sexual abuse. In this case, the injury can result from ANY ACT of the continuing series.
- Another nuance to the discovery rule is if the victim at the time of the age of 18 is subject to a legal disability. In this instance, the statute of limitations does not begin to run until the Victim’s legal disability is removed.
- Additionally, the statute of limitations can also be tolled during a time period where the victim is subject to threats, intimidation, manipulation or fraud perpetrated by the abuser or any person acting on behalf of the abuser. The statute of limitations would essentially stop running during the specific time period where the victim Is subject to the aforementioned conduct.
The Statute of limitations has been extended by the legislature on several occasions over the recent years to help the victims of sexual abuse obtain relief. The legislature continues to make efforts to further extend the statute of limitations. A new bill (HB 3629) has recently been proposed to eliminate the 20-year statute of limitations requirement in its entirety. The objective of the new bill would give victims the opportunity to file a cause of action at ANY TIME without any time limitations for filing. It currently is awaiting House approval before proceeding to the Senate.
Criminal Prosecution Statute of Limitations
In addition to the statute of limitations in filing a civil cause of action, there is also a statute of limitations nuance regarding filing criminal charges in prosecutions in child sex cases.
As of 2003, the current law in Illinois is that a victim of sexual assault as a minor (under the age of 18 at the time of the offense) must file criminal charges twenty years after attaining the age of 18. That means it must be filed before the “victim’s” 38th birthday. This is the current law in Illinois.
However, a new bill (SB189) has recently passed the Senate and the House eliminating the Statute of Limitations in its entirety in prosecutions for child sex cases. SB189 provides in pertinent part:
- Provides that when the victim is under 18 years of age at the time of the offense, a prosecution for criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual abuse, or criminal sexual abuse may be commenced at any time regardless as to whether corroborating physical evidence is available or an individual who is required to report an alleged or suspected commission of any of these offenses under the Abused and Neglected Child Reporting Act fails to do so. (Emphasis Added)
So essentially, a prosecution for the above-named sex offenses in relation to minors can be filed at any time. The bill is now awaiting Governor Bruce Rauner’s signature to become law.
If you or someone you know is the victim of childhood sexual abuse, there is hope for relief. The victim should contact an experienced attorney to determine whether they have a viable civil cause of action. Determining the viability of filing a cause of action of Childhood Sexual Abuse requires a very diligent and detailed analysis due to the complexity of the nature of this cause of action. It is imperative to consult an experienced attorney who is well versed in the nuances and complexities of this cause of action.
If you are considering pursuing this particular type of cause of action, contact the Law Offices of Raymond G. Wigell, Ltd to speak to an experienced attorney to determine the viability of pursuing such a claim.