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