Written by Bill Slomanson*
Too many childhood sexual abuse (CSA) perpetrators have escaped punishment. But an increasing number of survivors are filing civil lawsuits against their abusers, seeking monetary compensation for their injuries. These victims often suffer severe psychological and emotional damage. The repercussions are often suppressed until well after they become adults. Many of their defense mechanisms repress their memory of the abuse for years past adulthood. (Gordon, Adult Survivors of Childhood Sexual Abuse and the Statute of Limitations: The Need for Consistent Application of the Delayed Discovery Rule (1993) 20 Pepp. L.Rev. 1359.) State and federal legislatures have responded by eliminating the statute of limitations (SOL) for CSA. As noted by California's cosponsor of the 2024 legislation: "There is an epidemic of child sexual abuse, with 13.5 percent of children at risk of being sexually assaulted before their 18th birthday, many repeatedly. Society must protect children through statutes of limitations reform ... There is a national movement sweeping across the country to reform our laws, with many jurisdictions passing elimination, extension and revival legislation for child sexual abuse claims. These are not typical torts, and they demand an atypical response. Bravo to California for acting once again to protect children and honor justice." (Skinner, Addis and Skinner Introduce Bill to End Civil Statute of Limitations for Child Sexual Abuse (Feb. 6, 2023)
At the federal level, Congress prospectively eliminated the SOL for federal child sexual abuse lawsuits with the passage of the 2022 law entitled Eliminating Limits to Justice For Child Sex Abuse Victims. (18 U.S.C. § 2255.) In 2024, California followed suit, adopting the Childhood Sexual Assault Act, which prospectively eliminated the statute of limitations. (Code Civ. Proc., § 340.1.) As aptly noted by a prominent California litigator: "These [two] laws were modified due to research and data that helps explain the varied mindset of abuse victims and why it may take years for a survivor to come forward with a claim." (Schreiber, New Laws and Trends Impacting Sex Abuse Cases in 2024, Daily J. (Dec. 20, 2023) p. 4.)
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Navigating the turbulent waters of CSA litigation begins with evaluating the forum in which to bring the CSA lawsuit and the differences between the state and federal statutes and procedural rules. These differences include the retroactive features of the respective SOL; certificate of merit requirements; damage pleading rules; the ability to name "Doe" defendants; and jury size and verdict rules.
CSA litigators should first consider whether to bring a CSA case in state or federal court. State courts have jurisdiction not only over state claims but over claims arising under federal law. As articulated by the U.S. Supreme Court, "under our federal system, the States possess sovereignty concurrent with that of the Federal Government" and thus "state courts have inherent authority ... to adjudicate claims arising under the laws of the United States." (Tafflin v. Levitt (1990) 493 U.S. 455, 458.) Likewise, federal courts often preside over cases arising under state law, masquerading as "federal" cases because no plaintiff and no defendant is domiciled in the same state and the amount sought in damages exceeds $75,000. (28 U.S.C. § 1332(a), (a)(1).)
While the federal sexual abuse of minors legislation makes no mention of whether its claims can be pled in state courts, it is well established that "if exclusive [federal] jurisdiction be neither express nor implied, the State courts have concurrent jurisdiction." (Claflin v. Houseman (1876) 93 U.S. 130, 136.) Accordingly, when CSA lawsuits are initially brought in state court, plaintiffs should be prepared for defendants to remove the cases from state to federal court.
Finally, if a federal complaint were to plead both state and federal CSA claims, the court would have the "supplemental" jurisdiction to hear the state claim. (28 U.S.C. § 1367(a).)
California's 2024 Childhood Sexual Assault Act eliminates the statute of limitations for future CSA violations. (See Code Civ. Proc., § 340.1, subd. (a) ["There is no time limit for the commencement of ... actions for recovery of damages suffered as a result of childhood sexual assault."].) Childhood sexual assault includes "any act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years and that would have been proscribed by [the California] Penal Code." (Id., subd. (c).)
But the revised statute's vindication is not boundless. The key limitation is that "legislative enlargement of a limitations period does not revive lapsed claims in the absence of express language of revival. This rule of construction grows out of an understanding of the difference between prospective and retroactive application of statutes." (Quarry v. Doe I (2012) 53 Cal.4th 945, 955.) Thus, a "claim for damages based on conduct ... in which the childhood sexual assault occurred on or before December 31, 2023 may only be commenced pursuant to the applicable statute of limitations set forth in existing law as it [then] read." (Code Civ. Proc., § 340.1, subd. (p).) Under the pre-2024 law, CSA lawsuits must be commenced "within 22 years of the date the plaintiff attains the age of majority [for a total of 40 years,] or within five years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness ... whichever period expires later." (Former § 340.1, subd. (a); see also Levine, Civil Procedure in California: State and Federal (West, 2023 ed.) pp. 381-385 (Levine) [annual compilation of prominent California and federal rules and statutes].)
The California Supreme Court previously construed the "should have discovered" cutoff as "begin[ning] to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) That is, for abuse occurring on or before December 31, 2023, the plaintiff has 22 years from the date she reaches adulthood or five years from the date she "has a suspicion of wrongdoing, and therefore an incentive to sue." (Ibid.) "'[O]nce the plaintiff has notice or information ... to put a reasonable person on inquiry," she is "charged with knowledge of matters which would have been revealed by such an...
