Reasonable for Whom? Developing a More Sensible Approach to the Discovery Rule in Civil Actions Based on Childhood Sexual Abuse

Reasonable for Whom? Developing a More Sensible Approach to the Discovery Rule in Civil Actions Based on Childhood Sexual Abuse Theodore R.A. Ovrom * ABSTRACT: Civil actions based on childhood sexual abuse (“CSA”), like all other actions in tort, are subject to fixed limitations periods. A substantial majority of states apply the discovery rule to actions based on CSA, putatively as a tolling mechanism for plaintiffs who reasonably failed to discover their causes of action within the limitations period. In these states, judges often dismiss actions based on CSA after deciding that the plaintiff failed to exercise reasonable diligence and discover his or her action sooner. This Note argues that imposing a traditional standard of reasonable diligence to dispose of CSA cases as a matter of law is a mistake in view of CSA’s unique impact on its victims and the complex factual and legal allegations that typify CSA litigation. This Note contends that a jury is in a much better position to judge the reasonableness of a CSA survivor’s discovery of his or her action, and proposes legislative and judicial reform to preserve such questions for the trier of fact. I. INTRODUCTION ........................................................................... 1844 II. THE SOCIAL AND LEGAL FRAMEWORK OF CSA LITIGATION........ 1846 A. S OCIAL B ACKGROUND ............................................................ 1846 B. L EGAL B ACKGROUND ............................................................. 1848 1. Statutes of Limitations ................................................ 1848 i. In General ............................................................... 1848 ii. In CSA Cases ........................................................... 1849 2. The Discovery Rule ..................................................... 1850 i. In General ............................................................... 1850 ii. In CSA Cases ........................................................... 1850 * J.D. Candidate, The University of Iowa College of Law, 2018; B.A., Reed College, 2013. 1844 IOWA LAW REVIEW [Vol. 103:1843 III. THE PROBLEMS INHERENT IN DECIDING THE DISCOVERY QUESTION AS A MATTER OF LAW ............................................... 1853 A. T HE P ROBLEM IN A CTION : PARKS V. KOWNACKI .................... 1853 1. The Facts ...................................................................... 1854 2. The Lawsuit.................................................................. 1858 B. T HE C OMPLICATIONS OF CSA AND CSA L ITIGATION ............... 1860 1. The Unique Effects of CSA on the Victim................. 1860 2. The Factual and Legal Complexity of CSA Cases ..... 1862 i. Injury ...................................................................... 1863 ii. Liability .................................................................. 1865 C. T HE D EMAND FOR A S OLUTION .............................................. 1867 IV. A PROPOSAL FOR REFORM ........................................................... 1868 A. T HEORY ................................................................................ 1868 B. I MPLEMENTATION ................................................................. 1871 1. Legislative Reform ....................................................... 1872 2. Judicial Reform ............................................................ 1873 C. P OTENTIAL O BJECTIONS ........................................................ 1874 V. CONCLUSION .............................................................................. 1877 I. INTRODUCTION Childhood sexual abuse (“CSA”) is a well-recognized epidemic in which older individuals in positions of power exploit and abuse children for sexual gratification. 1 Children, who are tormented with such abuse before reaching an age at which they can fully appreciate the nature of sexual contact, 2 frequently suffer severe developmental, psychological, and emotional impairments because of such exploitation. 3 These injuries can be both short-term and long-term, and may have a delayed onset. 4 In short, CSA can inflict a lifetime of suffering. Understandably, CSA survivors often wish to sue their abusers and any third parties that enabled the abuse to demand compensation for their injuries. Civil actions based on CSA serve a number of important functions: They vindicate survivors’ suffering, hold culpable parties accountable, deter the future commission of such intentional or negligent acts, compensate 1 . See Marci A. Hamilton, The Time Has Come for a Restatement of Child Sex Abuse , 79 BROOK. L. REV. 397, 398–400 (2014). 2 . Id. at 399–400 (“Social science studies have shown that children in fact do not fully understand (if they understand it at all) what sex is, and certainly have no idea of the lifelong consequences of being sexually assaulted.”). 3. DARKNESS TO LIGHT, CHILD SEXUAL ABUSE STATISTICS: CONSEQUENCES 1–4 (2015), https:// www.d2l.org/wp-content/uploads/2017/01/Statistics_5_Consequences.pdf. 4 . Id. 2018] REASONABLE FOR WHOM 1845 victims for their ongoing injuries and the expenses of treating such injuries, and educate the public about CSA. 5 However, because of the unique characteristics of CSA and the injuries it creates, it takes victims decades to report the abuse, and most never do. 6 CSA thus poses a difficult problem for the legal system, which generally imposes short and inflexible time limits on bringing civil actions. 7 While civil actions based on CSA were traditionally lumped in with other personal-injury actions, most states have developed an individualized treatment of CSA. 8 Today, the vast majority of states have a special limitations period for CSA lawsuits. 9 Moreover, most of these states allow the discovery rule to toll the statute of limitations for survivors who were blamelessly unaware of their claims during the limitations period. 10 Nevertheless, courts still deny many CSA victims the opportunity to prove their allegations. 11 This dismissal often occurs when judges applying the discovery rule conclude at the outset that a plaintiff failed to exercise reasonable diligence in the aftermath of the abuse, such that the plaintiff’s claims are time-barred. 12 As this Note will demonstrate, the traditional legal standard of reasonable diligence is entirely inapposite in CSA litigation. CSA lawsuits often present intricate factual and legal allegations, which reflect CSA’s extraordinary nature as a social and legal harm. 13 For instance, psychological defense mechanisms can work in tandem with abusers’ manipulation and coercion to block victims’ memories of abuse and deter them from reporting. 14 Those victims who eventually do report frequently allege multifaceted injuries and complex theories of liability, especially where negligent third parties enabled the abuse. 15 The traditional discovery rule—which asks a simple yes or no question—was not built to handle these allegations. As a result, judges trying to answer the discovery question as a matter of law invariably oversimplify or 5 . See Cynthia Grant Bowman, The Manipulation of Legal Remedies to Deter Suits by Survivors of Childhood Sexual Abuse , 92 NW. U. L. REV. 1481, 1481 (1998). 6 . See Hamilton, supra note 1, at 398 (“[T]he vast majority of [CSA] victims need decades to come forward, and many never do.”); infra note 19 and accompanying text. 7. Andrew J. Wistrich, Procrastination, Deadlines, and Statutes of Limitation , 50 WM. & MARY L. REV. 607, 609–10 (2008). 8 . See infra Part II.B.1.ii. 9 . See infra Part II.B.1.ii. 10 . See infra Part II.B.2. 11 . See Joshua Lushnat, Note, Sexual Abuse Memory Repression: The Questionable Injustice of Demeyer, 13 J.L. SOC’Y 529, 531 (2012) (“Absent a slam-dunk-case brought immediately after the incident, civil vindication for [CSA] victim[s] is rather difficult to obtain.”). 12 . See infra Part III.A.2. 13 . See infra Part III.B. 14 . See infra Part III.B.1. 15 . See infra Part III.B.2. 1846 IOWA LAW REVIEW [Vol. 103:1843 blatantly ignore the aspects of a case that do not fit within the shallow parameters of the rule. 16 This Note argues that the timeliness of a plaintiff’s discovery in actions based on CSA should be reserved for the jury, a judicial body that is uniquely well-positioned to determine whether a particular plaintiff’s discovery of his or her action was reasonable. Part II introduces the social and legal framework of CSA. Specifically, it provides background on CSA as a social epidemic and establishes the legal framework behind the discovery rule. Part III analyzes the problems inherent in deciding the discovery issue as a matter of law. By way of an in-depth case illustration, it highlights the aspects of CSA litigation that cannot be squared with the traditional discovery rule. Finally, Part IV proposes legal reform to preserve the discovery question for the trier of fact. This reform consists of both a model statutory amendment for state legislatures and a reformulation of the discovery rule for the courts. II. THE SOCIAL AND LEGAL FRAMEWORK OF CSA LITIGATION A review of the devastating social consequences of CSA is vital to placing the problem in its legal context and exploring how the law should respond to such injuries. A brief summary of the social and legal background of CSA follows. A. S OCIAL B ACKGROUND CSA is prevalent in our society and causes significant lifelong psychological damage to its victims. 17 Recent research indicates that approximately one in five females and one in twenty males are sexually abused as children. 18 These statistics, though alarming, significantly understate the true magnitude of the problem because the majority of CSA incidents go unreported. 19 Nearly 70% of all reported sexual assaults (involving victims of all ages) are inflicted on children ages 17 and below. 20 Sexually abused children suffer severe, long-term emotional damage. 21 Victims frequently experience anxiety, self-esteem...