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

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 disc...

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Bibliographic Details
Published in:Iowa law review 2018-05, Vol.103 (4), p.1843-1877
Main Author: Ovrom, Theodore R.A
Format: Article
Language:English
Subjects:
Child sexual abuse
Discovery (Law)
Discovery rule
Due diligence
Evidence
Injuries
Laws, regulations and rules
Liability
Post traumatic stress disorder
Remedies
Right to trial by jury
Sex crimes
Sexual abuse
State court decisions
Statute of limitations
Statutes of limitations
Torts
Trials
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Summary: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.
ISSN:0021-0552