Magazine article Developments in Mental Health Law

Turning Back the Clock on Sexual Abuse of Children: Amending Virginia's Statute of Limitations

Magazine article Developments in Mental Health Law

Turning Back the Clock on Sexual Abuse of Children: Amending Virginia's Statute of Limitations

Article excerpt

Numerous verified reports of child sexual abuse have combined with the growing literature on that topic to call into question a well-worn Freudian myth. Women's reports of childhood sexual activity with their fathers or other men are no longer assumed to be the products of fantasy nor artifacts of wish-fulfillment and over-active feminine imaginations. Concrete evidence of the incidence of child sexual abuse-of males and females--no longer permits such charges to be dismissed without serious investigation. (1)

Increasing popular and professional attention has forced the sexual abuse of children out of the psychic closet and into public view. With increased attention has come vigorous advocacy for "survivors" of abuse. Step-by-step guides for bringing lawsuits against sexual abuse perpetrators have been published. (2) Proposals have appeared to hypnotize witnesses and unearth childhood memories for use as evidence in civil trials. (3)

Advocates for the accused have also spoken out. Some, concerned about the potential for unsubstantiated claims, focus upon the rights of those charged with being abusers. Fabrication of an abuse charge for "leverage" during a child custody case has been explored in the legal literature. (4) A number of prominent mental health professionals have formed the False Memory Syndrome Foundation. The foundation's mission includes efforts to study and combat what is described as "enormous family suffering" caused by misguided programs of therapy during which patients "come to believe that they suffer from 'repressed memories' of incest and sexual abuse." (5) The potential for false accusation remains a serious consideration both for the therapeutic community and for those who would fashion legal policy.

Thus, adult survivors of the trauma of sexual abuse who choose to reveal the secrets of a lifetime may confront not only professionals who doubt them but also a skeptical public, whose attitudes concerning intrafamilial privacy and publicized shame have changed slowly, if at all. Equally troublesome for those bold enough to unmask their assailants is a legal system unprepared to address allegations of harms long past, accustomed instead to a counsel of indifference toward claims so difficult to substantiate.

The first announced survivors of childhood sexual abuse transcended the traditional reticence to report past victimization. They coupled public accusations with claims for financial damages to compensate for years of shame, guilt, emotional pain and the cost of therapy to treat those feelings. But lawsuits between survivors of childhood sexual abuse and their abusers were blocked by legal, as well as attitudinal hurdles. For many adults who had suffered abuse decades earlier, the time frame in which suits could be brought had already passed. Their claims were barred from court by statutes of limitation.

Prior to 1991, Virginia's law reflected a common limitation period for personal injury litigation. People claiming damages had to initiate lawsuits within two years after an injury was sustained. (6) If the victim was a child at the time of the injury, the statute of limitations was "tolled" or held in abeyance until the child became an adult. Since the age of majority in Virginia is eighteen, a victim of personal injury (including sexual abuse) could wait no longer than the twentieth birthday to pursue a claim in court. Those who delayed forfeited the right to sue.

Statutes of Limitation

A statute of limitation forms chronological brackets around an injury that could lead to a lawsuit and the time when the suit must be filed. The injury gives rise to a legal "cause of action" and marks the first temporal point when a victim has a claim for damages, and thus the first time a suit would be justified. In most personal injury lawsuits, the cause of action is said to "accrue" when an intentional or negligent and wrongful act has occurred and an injury is sustained. …

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