Why SOL Reform?
What is a Statute of Limitations?
A statute of limitations (or SOL), simply, is the maximum amount of time one has to bring a lawsuit from the time of the injury or other ground for a lawsuit.
SOLs vary from state to state and from claim to claim. For example, a SOL for a lawsuit about a contract may be different from a lawsuit about a personal injury and both may be of varying durations between different states. The statute of limitations may also be set to begin running at different times. Some SOLs begin running at the time of the injury and others begin running when the injury is discovered. In cases with minors, the SOL is “tolled” or doesn’t begin to run until the minor turns 18.
What Is “Window Legislation?”
Since civil SOLs are legislative conveniences which may be changed at the will of the Legislature,this also means that it is constitutional for a Legislature to allow victims who have run out of time under a statute of limitations to later bring a suit. This is brought about by passing “Window Legislation” and essentially opens a specified duration in which civil claims that would have been barred can be brought.
In the area of child sexual abuse, California and Delaware have passed so-called “Window Legislation” which revived the ability of victims to bring suit.
- In California, the window was opened in 2003 for one year and about 1,000 new suits were filed which identified approximately 300 perpetrators!
- Delaware opened a two-year window in 2007 which expired on July 10, 2009.
One concern often raised following discussion of a window is that it will encourage frivolous claims. While some meritless or false claims can arise, the same is true in any area but one must remember that the burden of proof is still on the plaintiff to prove that the abuse occurred. This in itself, along with potential legal consequences of bringing a false claim, acts as a disincentive on frivoulous claims. In the child sexual abuse area, experience with the California window has shown that the concern with meritless suits is simply no more of a problem than in other areas of the law.
What is “tolling”?
Under certain circumstances, a statute of limitations is “tolled”. When this happens, the statute of limitations will not begin to run until a certain event occurs. Most often, this means that a statute of limitations will not run until a victim of child sexual abuse turns 18 years old. Using the example above, a victim will have 5 years from the time they turn 18 in a state witha 5-year statute of limitations that tolls until the age of 18.
What is a “Discovery” rule?
Some states’ statute of limitations do not begin to run until a claim “accrues.” Instead of the limitation period starting to run from the date of an actual injury, it begins to run from the date of “accural.” Most often, in the context of claims of child sexual abuse, accrual does not occur until a victim “discovers” any injuries.
Is Civil Different from Criminal?
Civil claims are brought by victims to recover for their injuries.
Criminal actions involve criminal punishments given by the state.
Is There A Difference Between A Criminal And A Civil “Statute Of Limitations”?
YES, there is a difference between criminal and civil statutes of limitations. This difference may be found both in terms of their durations but, more importantly for our purposes, in their ability to be applied retroactively. In short, criminal statutes of limitations can not be applied retroactively. Once a statute of limitations runs out, even a guilty perpetrator can not be criminally charged.
On the other hand, the Supreme Court has ruled that civil statutes of limitations are merely a legislative convenience, made by the grace of the various Legislatures, and which may be changed should the Legislature see fit. Thus, a statute of limitations may be extended and suits brought within this now-lengthened period.
Why Will A Civil Suit Help If Perpetrators Cannot Be Charged Criminally?
At the same time, pedophiles often have multiple victims over many years.
- Once a perpetrator is publicly identified, other victims often find the strength to come forward as well. In some cases, the abuse occurs within a criminal statute of limitations which does allow the criminal justice system to charge the abuser.
What’s the law in my state?
Including: Why Victims Delay, Harm Done to Child Pornography Victims, Effects of Trauma, the Public Impact of Child Sex Abuse