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Tuesday, December 12, 2017

Statutes of Limitations, Sexual Abuse, and Non-Sexual Abuse

The term “statute of limitations” is one that may be familiar to people who have tried to get recourse against those who have cheated or mistreated them. Such a statute is a law that time-limits lawsuits of some kinds. A person who seeks justice after a certain period has passed may find that he or she can no longer bring a suit for compensation for harms experienced.

It’s not unreasonable to have statutes of limitations for some problems. If too much time has passed, there may be no living witnesses to an event, and other evidence may have been corrupted or lost. Even the victim’s memories may have faded or become distorted. Few people would want to claim that someone who is 75 should be able to bring a lawsuit about something that happened when he or she was five years old, however terrible that event might have been.

However, many states have very short time limits on a range of harmful events that happened during childhood; not only are children unable to bring their own lawsuits and are helpless if their abusers are their own parents or guardians, but there are severe limits on the time that can  have passed after an abused person has reached adulthood before he or she can no longer sue.

In the current climate of concern and justified moral panic about sexual assaults, some organizations are working to alter states’ statutes of limitations on lawsuits concerning sexual abuse of children. These issues were discussed in detail by the New York Times reporter Elizabeth Harris at https://www.nytimes.com/2017/12/04/nyregion/prep-school-sex-abuse-statute-of-limitations.html and

For readers outside the United States, I should point out that statutes of limitations in the U.S. are matters of state and not Federal law. Every state has its own laws on this matter, although many states’ laws resemble each other in various ways. Elizabeth Harris’s articles focus on the laws of New York State, which are rather stringent in their time limitations, although not more so than some other states. According to Harris, residents of New York State have only until they are 21 years old to sue schools or institutions where they suffered sexual abuse, and until age 23 to sue an attacker or bring criminal charges (except for rape). For some years, activists in New York have been attempting to pass legislation to change this situation. Currently, a bill before the legislature, the Child Victims Act, proposes allowing survivors to sue until they are 50 years old and to bring criminal charges until they are 28. It would also provide a one-year window during which complaints from any previous time could be brought.

Although the Child Victims Act has been brought to the legislature repeatedly over the last 11 years, without being passed or even brought up for a vote in some cases, it is possible that the current climate of opinion, with its strong concerns about sexual misconduct, will support its passage. It is difficult to imagine resistance to such an act except among organizations that have reason to protect predators.

I would be most happy to see the Child Victims Act passed in New York and to see its passage tip off real changes in other states as well. But I want more.

Yes, sexual abuse of children is a heinous crime and one deserving of special attention. However, it is not the only form of child abuse for which recourse is subject to statutes of limitations. Legislation like the Child Victims Act should include cases of non-sexual abuse, especially if they occurred in institutions or were protected through bureaucratic or institutional means. Currently, statutes of limitations can easily prevent survivors of abusive treatment from bringing suits against their abusers.

Why do I say this? It’s apparent that many victims of sexual abuse were reluctant to come forward because they felt they would be attacked for complicity or for malicious intent. Both men and women felt correctly that publicizing their sexual histories would “punish” them and their reputations as much or more than it would hurt their molesters. It may seem less obvious why victims of non-sexual abuse would not quickly seek justice—but there are real reasons why they might not.

1.      1. They don’t have any money for legal representation. Individuals who have been in abusive institutional environments as children usually “age out” at 18 and have all they can do to take care of themselves. They do not have the background or the contacts that would enable other 18-yer-olds to get some kind of job, and they often rapidly move into homelessness, a condition that makes employment even less likely. It can take years to find their feet financially, if indeed they ever do so.

2.     2. They don’t have much education. Institutions in which abusive treatment takes place do not usually provide more than a minimum of education. As a result, individuals leaving such institutions may have no idea about lawsuits, about compensation for abusive treatment, about courts, even about what a lawyer is. Certainly they don’t know about pro bono legal work or about resources in law schools. Eventually they may learn some of these things, but it takes a while.

3.      3.They don’t know that what happened to them was abusive. How people define abuse changes over time, and most of us are really aware only of abuse that is different from what we are used to seeing (e.g., the example of debates over spanking). When children have spent years in an abusive family or foster care, and then have gone to an abusive institution, they may regard mistreatment as “par for the course”, and only with years of later experience look back and realize what happened to them.

4.     4. They think the abuse they experienced was their own fault, as they were often told. It is easy to make children feel as if adult attacks on them occur because they were “bad” in some way. Even adolescents who are coerced into false confessions of crimes may actually believe for some years that they are guilty of things they said they did—but did not actually do. Only as the years pass and more mature thinking develops do they realize that they were innocent of the charges they admitted to.

All of these are reasons why non-sexual abuse, especially in institutional settings, should not be subject to the present severe time limitations for recourse.

It is clear that institutions where abuse has taken place are quick to defend themselves by claiming time limitations for suits against them. Here is an example that I have blogged about previously. A 17-year-old girl in a Southern state, whom I will call Sophie, was placed in residential treatment center by her mother, who was concerned about the girl’s state of mind following a parental divorce that involved some sexual allegations about the father. During her time in the RTC, Sophie was subjected to withholding of food, water, and toilet facilities. When she had her period, she was not allowed sanitary materials, and was mocked as stinking. This treatment was continued until she conceded, falsely, that she had been molested by her father. The treatment then continued until she stated, again falsely, that she had herself molested a younger brother. The facility staff then reported her as a sexual predator, a label that meant she could not return to her mother’s house where there were younger children.  At 18, Sophie left the RTC, got a job, and saved up $200 for an hour of an attorney’s time (a feat that was probably possible for her only because she had not been in the RTC for as many years as she might have been). The attorney, fortunately, agreed to represent Sophie without further charge and brought a complaint against the RTC.

As you might guess, the RTC’s lawyers responded by pointing to the statute of limitations. It had taken Sophie more than a year to get her life together enough to seek legal representation, and under case law and legislation in that state she had no recourse for the harm done her. However, happily, a judge considered all the aspects of Sophie’s life and why she might not immediately have brought her complaint—and her case is going forward. (I notice that the RTC is no longer shown on the Internet under its old name.)


Including non-sexual abuse under Child Victims Acts would be a great help for the Sophies of this world.

2 comments:

  1. This is perhaps Jean Mercer's most valuable essay to date. There is a case to be made that the best way to stop an abusive "therapy" is through "regulation by litigation." Some harmful practices, such as recovering false memories in the 1990s, nearly disappeared when the courts made awards to the injured.

    We have seen that with Attachment Therapy/Parenting, few survivors have taken their tormentors to court because of the statutes of limitations. How else to account for this dangerous practice inflicted on largely foster and adopted children having thrived for over four decades?

    But for any Attachment Therapy/Parenting survivor who has been apparently shut out by their state's severely restrictive statute of limitations, it might not actually be too late. I know of one personal injury lawyer who claims it may be possible to reset the clock to the time a survivor realizes that this brutal practice is not legitimate therapy.

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    1. The trouble with litigation as a way to deal with AT/P sequelae is that there is usually no single moment at which a victim realizes that he or she has been injured, or even realizes that the treatment is not a legitimate therapy. Different people respond differently to adverse events of various kinds, including AT/P, and it would be my bet that the great majority of people who have been treated with potentially harmful methods have also experienced many other adverse events in their early lives and later as well. To demonstrate that an injury was caused by a specific event is hard enough even for an objective observer, and when we add to that the problems any individual would have with tracing their problems to a cause and realizing what it was... well, I don't see that reset as being very helpful for many people, whereas changes in statutes of limitations would open some doors for more cases.

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