One in five girls and one in 20 boys are sexually assaulted. Sexual abuse of children is not only a crime, but also a tort that gives rise to compensatory and punitive damages.
Until recently, the general rule was that minors who were victims of sexual abuse had to sue their abusers before the victim’s 19th birthday.

New legislation effective April 7, 2016,[1] can be read to extend the statute of limitations for these victims, but despite good intentions, the statute is drafted in a way that raises more questions than it answers. Indeed, it will be argued that the new law reduces the time for filing suit in some cases.

Tenn. Code Ann. Sec. 28-3-116 establishes deadlines for filing suit for “child sexual abuse” claims.[2] “Child sexual abuse” includes acts as defined in Tenn. Code Ann. 37-1-602(a)(3) performed on or involving those under 18, and includes the expected list of horrific acts.

The statute provides that “notwithstanding” the one-year-after-reaching-majority rule found in Tenn. Code Ann. Sec. 28-3-104,[3] the new law requires that a victim of child sexual abuse who had not “discovered [injury or illness] at the time of the abuse” file suit “within three (3) years of the time of discovery of the abuse by the injured person.”[4] “Discovery” is defined as “when the injured person becomes aware that the injury or illness was caused by child sexual abuse” but “[d]iscovery that the injury or illness was caused by child sexual abuse shall not be deemed to have occurred solely by virtue of the injured person’s awareness, knowledge, or memory of the acts of abuse.”[5]

The statute goes on to provide that the victim bringing an action under the section may “compute the date of discovery from the date of discovery of the last act by the same alleged perpetrator which is part of a common scheme or pattern of child sexual abuse” and need not prove that he or she “psychologically repressed memory of the facts upon which the claim is predicated.”[6] Knowledge of a parent or guardian is not imputed to the minor victim.[7]

So, what does this mean? Assume a 14-year-old boy is sexually abused by a neighbor. If he admittedly discovers his injury or illness in the days following the abuse, does he have until three years to file suit or may he wait until his 19th birthday to do so? In other words, does the new statute supplement the rule under the prior statute or does it supplant it?

What about a 10-year-old girl raped by a family “friend,” Bob? If she says “Bob hurt me,” does that mean that she has discovered that she was injured by child abuse? Or does she have to know what “child sexual abuse” is before the statute of limitations begins to run?

And what does “becomes aware” that the injury or illness was caused by child sexual abuse mean? Is the test for “awareness” objective or subjective? The sentence structure is such that the test should be subjective (the awareness of the victim, whether reasonable or not) but we can expect litigation on this issue.

Subsection (e) provides that if any action is brought after the injured person’s 19th birthday, he or she “must offer admissible and credible evidence corroborating the claim of abuse by the alleged perpetrator.”[8] What does that mean? Child sexual abuse is usually perpetrated in private. Absent a confession, video, photographs or the testimony of the rare eyewitness, how exactly does one offer “admissible and credible evidence” of the abuse by the perpetrator? Is a statement by the victim in an emergency room medical record sufficient “corroborating” evidence, especially in the presence of physical signs of abuse?[9]

The statute also includes a statute of repose. It provides that no action may be brought against a perpetrator (or the perpetrator’s estate) after the victim becomes age 25.[10]
I believe the purpose of this statute was to protect and extend the rights of victims of child sexual abuse, not reduce them. But until the statute is amended or the Tennessee Supreme Court says otherwise, I recommend lawyers assume that the statute of limitations for a minor bringing a tort claim for child sexual abuse is no more than three years from the date of the last abusive act[11] or the child’s 19th birthday, whichever is sooner.

The above does not mean that I will decline representation in a case that does not meet those criteria, or that I think the law will or should be interpreted so restrictively. Rather, it means that in my view, a lawyer should work under the conservative interpretation of the statute of limitations when he or she can, and cases that fall outside such parameters should have a statute of limitations risk-factor included in the case acceptance analysis. Whether cases with a potential statute of limitations issue should be accepted depends on a host of other factors.

Notes

1. The statute purports to apply to “to all actions pending on such date as well as all actions commenced on or after” April 7, 2016.
2. Tenn. Code Ann. Sec. 28-3-116 (a). The statute does not impact the filing deadline for claims against any defendant in a child sex abuse case other than the abuser.
3. Sometimes a statute of repose can bar a minor’s claim before the minor’s 19th birthday. See, e.g., Callaway ex rel Callaway v. Shucker, 193 S.W.3d 509 (Tenn. 2005) (the health care liability statute of repose bars the minor’s claim three years after the injury causing event unless one of the exceptions to the statute of repose (fraudulent concealment or the presence of a foreign object) is present).
4. Tenn. Code Ann. Sec. 28-3-116 (b).
5. Tenn. Code Ann. Sec. 28-3-116 (a) (2).
6. Tenn. Code Ann. Sec. 28-3-116 (c).
7. Tenn. Code Ann. Sec. 28-3-116 (d).
8. Tenn. Code Ann. Sec. 28-3-116 (e).
9. The victim’s lawyer would argue the statement was admissible hearsay under Tenn. R. Evid. 803(2) (excited utterance) or 804 (4)(made for purposes of medical diagnosis and treatment) and corroborates the criminal act.
10. Id. This is the first time in Tennessee law that a person who is alleged to have committed a criminal act has been given the benefit of a statute of repose.
11. I note that Tenn. Code Ann. Sec. 28-3-116 (c) (1) says that the date of the last act by the same perpetrator can be used as the date of discovery for purposes of the three-year rule if the act “is part of a common scheme or pattern of child sexual abuse.” Daily or weekly abuse clearly meets that definition. But what happens if the abuse occurs every couple months. Is that part of a “pattern” or “scheme?” This subsection further complicates the statute of limitations analysis in some cases.

JOHN A. DAY is a personal injury and wrongful death lawyer with offices in Brentwood and Murfreesboro. He has brought tort claims on behalf of victims of sex crimes for almost 30 years.