Interfamilial child sexual abuse: Expanded statute of limitations gives survivors until age 53 to file suit

Issue May/June 2017 May 2017 By Donald G. Tye and Kristin M. Knuuttila

Tort law offers well-suited but underused remedies for victims of child sexual abuse within families, which is often exposed during divorce proceedings. Victims can achieve financial compensation for harms, assume a position of control over legal claims addressing the abuse and seek deterrence of an abuser's abusive conduct, especially when the abuser is a parent.

By now, most of us can recite the statistics: one in three to four girls and one in five to seven boys is sexually abused before they turn 18. But what many may not know is that as many as 36 percent of child sexual abusers are parents or other family members. Yet, unlike exposés splashed across the front page of newspapers on the atrocities committed within the Catholic Church or at the nation's elite boarding schools, interfamilial sexual abuse remains a taboo topic that is relegated to the shadows. This article, which follows on the heels of April's Sexual Assault Awareness Month, brings to light unique psychological issues that survivors of the domestic tort, interfamilial child sexual abuse, face. It then focuses on a recently amended law that expanded the statute of limitations for all child sexual abuse survivors and gave them until age 53 (and beyond) to process their abuse before accessing civil justice.

A child who is sexually abused by a parent faces different challenges than a child abused outside of the home. These challenges may hinder an abused child's ability to reveal the abuse and publicly confront her abusive parent not only when she is young, but also into adulthood. The very nature of the parent-child relationship makes it difficult for a child to comprehend that she is being abused. A pedophile parent confounds his victim by acting like a normal, caring person at times - offering encouragement at a sporting event, pecking his victim on the head as she leaves the house, and even telling her, "I love you." In a recent child sexual abuse case, a victim who was abused by her father testified, "He told me he loved me every single day; why would he do something wrong or something that would hurt me when every day he told me he loved me?" To further sow confusion, an abusive parent may try to normalize his actions. He may claim he is just "playing a game" or teaching his daughter about her body.

A child who is sexually abused at home also has no real escape or time away from a parent to process the abuse. She wakes up each morning and eats breakfast with her abuser. She returns home to her attacker at the end of the school day. At night, she is gripped with fear, listening for his footsteps outside her door. To prevent disclosure, a sexually abusive parent may threaten his victim by saying that if she reveals the abuse, she will destroy the family. Until recently, a victim of interfamilial child sexual abuse had to do the impossible … and do it quickly. By age 21, or within three years of linking her abuse to injuries it caused, she had to face the trauma and summon up the courage to confront her abusive parent with a civil lawsuit - sometimes with no support from other family members - or forever be barred from doing so.

Statute of limitations is expanded to age 53

Prior to being amended, the statute of limitations for assault and battery claims in child sexual abuse cases was three years past the victim's 18th birthday or within three years of a victim connecting the abuse to her injuries (the "discovery rule"). M.G.L. c. 260 §4C.

Since many survivors had not yet begun to process the abuse by age 21, this narrow window effectively curtailed civil lawsuits for valid sexual abuse claims. This was especially true for incest survivors, some of whom remained under an abuser's control well into adulthood and were too traumatized to even consider confronting, much less suing, an abusive parent.

While the discovery rule extended the statute for three years after survivors causally connected the abuse to their damages, that deadline was tight, too. Countless claims were time-barred and victims were left without recourse. Many of the claims lodged against the Catholic Church, boarding schools and other institutions were only settled because of public outrage sparked by the unrelenting efforts of local lawyers and the Boston Globe's Spotlight Team. Despite being subjected to the most outrageous betrayal of all, victims of interfamilial child sexual abuse do not have a common enemy for lawyers and reporters to publicly expose.

After years of considerable pressure mounted by victims, advocates and lawyers, on June 26, 2014, the Massachusetts Legislature expanded the scope of the law, extended the statute of limitations, and applied the new statute retroactively. M.G.L. c. 260 §4C. Survivors of child sexual abuse in Massachusetts now have 35 years past their 18th birthday - until age 53 - to sue an individual perpetrator, including an abusive parent.  The statute now includes a reference to "actions in tort;" it is no longer limited to assault and battery claims as it was prior to the amendment. In Sliney v. Previte, the Supreme Judicial Court upheld the constitutionality of the retroactive application of the statute, and acknowledged that: "[v]ictims often suffer injuries for decades after the physical acts of abuse occurred, and the extended statute of limitations provides the victims appropriate time to recall past acts and face the traumatic childhood events before he or she must take action." Sliney, 473 Mass. 283, 292 (2015).

New Discovery Rule Further Expands the Statute of Limitations Beyond Age 53

The Legislature also expanded the discovery rule from three to seven years. M.G.L. c. 260 §4C. Now, even survivors of incest and other child sexual abuse older than 53 may still have a viable claim for civil relief. Regardless of a victim's age, the new discovery rule does not begin to run until a victim: 1) knows she was abused; 2) knows she was injured; and 3) links the abuse to her injuries. In other words, any child sexual abuse survivor who is older than age 53 can still file a tort claim against a perpetrator, as long as she files within seven years of making a connection between the abuse and the damages it caused. Defendants almost always challenge these claims at the summary judgment stage.

Claims invoking this discovery rule are more complicated to litigate than those filed by a plaintiff who is 53 or younger, but many survive summary judgment. While there are no Massachusetts decisions interpreting the new seven-year discovery rule, there is ample applicable case law interpreting the old three-year discovery rule. "A plaintiff who invokes the discovery rule by claiming that her delay in filing suit stems from a failure to recognize the cause of her injuries bears the burden of proving both an actual lack of causal knowledge and the objective reasonableness of that lack of knowledge." Doe v. Creighton, 439 Mass. 281, 283 (2003). Whether the plaintiff knew or should have known that the defendant's actions were the cause of her injuries is a question of fact. Riley v. Presnell, 409 Mass. 239, 240 (1991).

The question of whether a plaintiff's claim is time-barred hinges on whether the abuse suffered was of such a nature that it would be objectively reasonable for a person in a similar situation to fail to make the causal connection between the abuse and the subsequent injuries. Riley, 409 Mass. at 245-46. ("The reasonable person who serves as the standard … is not a detached, outside observer assessing the situation without being affected by it. Rather, it is a reasonable person who has been subjected to the conduct which forms the basis for the plaintiff's complaint.")

In determining whether the delay was objectively reasonable, courts have considered many factors, including the age of the victim at the time of the abuse, the perpetrator's attempts to disguise it, and whether the abuse was a "watershed event" in that it dramatically affected the victim immediately. Koe v. Mercer, 450 Mass. 97, 103 (2007); Doe, 439 Mass. at 285.

Attorneys opposing summary judgment on behalf of survivors who are older than 53 should keep these factors in mind and include in their opposition detailed facts relevant to their client's delay in making a causal link. They should also include an expert affidavit establishing the reasonableness of the delay. Riley, 409 Mass. at 246.

In Kelley v. Kelley, an interfamilial child sexual abuse case, the Superior Court (Kelley Brown, J.) denied summary judgment on statute of limitations grounds. Kelley v. Kelley, Mass. Super. Ct., C.A. No. 1083CV01153 (Plymouth Cty. Jan. 9, 2014).

In that case, plaintiffs (two daughters) were sexually abused by their father beginning in their adolescence and continuing into their young adulthood. Plaintiffs filed suit after their 21st birthdays. Defendant moved for summary judgment claiming that plaintiffs' claims were time-barred. The court found that there was sufficient evidence that plaintiffs "have a reasonable expectation of proving that their claim was filed timely."

Judge Kelley Brown reasoned that: "the duration of years and openness of defendant [father's] conduct formed the plaintiffs' perspective of normal familial relationships ... [t]he defendant's regular expression of love, support and affection toward his daughters, not hate and violence, disguised the malignancy of his actions … there was no one event … that would trigger the plaintiffs' realization. The abuse took place over years and due to the nature of the symptoms manifested by the plaintiffs, one could easily attributed [sic] them to their adolescence."

After overcoming summary judgment, plaintiffs in Kelley ultimately went to trial. The jury awarded them a $10 million verdict against their abusive father. That verdict was upheld on appeal. B.K. v. Kelley, 89 Mass. App. Ct. 1127, 2016 Mass. App. Unpub. LEXIS 600, rev. denied, 475 Mass. 1103 (2016).

With the passage of the amended M.G.L. c. 260 §4C, survivors of interfamilial and other forms of child sexual abuse now have additional critical time to process the abuse and then determine whether to file civil claims against their perpetrators. Regarding the passage of the amendment, one survivor said, "With this long overdue move, we have finally succeeded in wresting power away from abusers who were largely protected under the old law. That power now resides with victims who can finally seek justice in the courts in order to heal and to shield more children from sexual abuse." Coalition to Reform Sex Abuse Law, Press Release, June 26, 2014, www.corsal.org.

FOOTNOTE

Section 4C ½ also expands the discovery rule for negligent supervision claims, which is not discussed in this article.