“A Broad and Generous" Statute: Washington’s Statute of Limitations for Childhood Sexual Abuse
By: Michael T. Pfau and Jason P. Amala, Pfau Cochran Vertetis Amala PLLC
Since the Penn State sex abuse scandal erupted, our law firm, which has a number of attorneys who are devoted to child sexual abuse cases, has received an increased number of calls from attorneys who have questions on how to handle a claim for childhood sexual abuse. Because abuse survivors are usually not capable of coming forward until many years or decades after the abuse ends, it is important for attorneys to understand the unique statute of limitations that applies to these claims.
RCW 4.16.340 provides the statute of limitations in Washington for injury resulting from childhood sexual abuse as three years from the later of (a) the time of the act causing the injury (the statute is tolled until the victim reaches the age of majority); (b) the time the victim discovered or reasonably should have discovered that the injury or condition was caused by said act; or, (c) the time the victim discovered that the act caused the injury for which the claim is brought.
Unlike most statutes of limitation that impose a duty on the plaintiff to discover injuries, subsection (c) is unique in that it omits the language “or reasonably should have discovered." It is this subjective “discovery" rule that allows most child abuse survivors to bring claims because they are unable to connect the dots between the abuse and how it affected them until many years after the abuse. More specifically, while almost all survivors remember at least some of the abuse, most are unable to understand how the abuse affected them until they reach a point where they can confront the effects in a healthy, productive, and meaningful manner. The legislature specifically recognized as much when it revised RCW 4.16.340 in 1991.
In a half-dozen findings, the legislature explained the rationale for this rule that favors abuse survivors:
- Childhood sexual abuse is a pervasive problem that affects the safety and well being of many of our citizens.
- Childhood sexual abuse is a traumatic experience for the victim causing long-lasting damage.
- The victim of childhood sexual abuse may repress the memory of the abuse or be unable to connect the abuse to any injury until after the statute of limitations has run.
- The victim of childhood sexual abuse may be unable to understand or make the connection between childhood sexual abuse and emotional harm or damage until many years after the abuse occurs.
- Even though victims may be aware of injuries related to the childhood sexual abuse, more serious injuries may be discovered many years later.
- The legislature enacted RCW 4.16.340 to clarify the application of the discovery rule to childhood sexual abuse cases. At that time the legislature intended to reverse the Washington Supreme Court decision in Tyson v. Tyson, 107 Wn.2d 72, 727 P.2d 226 (1986), and explicitly intended that the earlier discovery of less serious injuries should not affect the statute of limitations for injuries that are discovered later.
The legislature went on to note that "It is still the legislature's intention that Tyson v. Tyson, 107 Wn.2d 72, 727 P.2d 226 (1986) be reversed, as well as the line of cases that state that discovery of any injury whatsoever caused by an act of childhood sexual abuse commences the statute of limitations. The legislature intends that the earlier discovery of less serious injuries should not affect the statute of limitations for injuries that are discovered later." This strong public policy in favor of abuse survivors has been repeatedly emphasized by Washington courts. In C.J.C. v. Corporation of the Catholic Bishop of Yakima, 138 Wn.2d 699, 985 P.2d 262 (1999), the Washington Supreme Court concluded the Legislature intended to provide "for a broad and generous application of the discovery rule to civil actions for injuries caused by childhood sexual abuse . . . who too often were left without a remedy under previous statutes of limitation." 138 Wn.2d at 712-13 (internal citations omitted). Given this legislative history, the Court concluded that there is a strong public policy in favor of protecting children against acts of sexual abuse. Id. at 726.
A few cases illustrate the application of this broad and generous discovery rule.
For example, in Hollmann v. Corcoran, 89 Wn. App. 323, 326, 949 P.2d 386 (1997), the Court confirmed that RCW 4.16.340(1)(c) applies a pure subjective discovery rule, rather than a “should have known" discovery rule. In that case, the defendant sexually abused the plaintiff from the time the plaintiff was age 13 through 23. Like many abuse survivors, the plaintiff suffered from a variety of emotional and psychological problems and abused both drugs and alcohol. More than three years before the plaintiff filed suit, he began counseling, disclosed the abuse, and disclosed that it made him feel extremely guilty. Although the counselor diagnosed the plaintiff with Post-Traumatic Stress Disorder, she did not explore the causal relationship between the abuse and how it affected the plaintiff. The counselor testified that “her focus was on developing a treatment plan, not helping [the plaintiff] understand the causes of his condition," she explained that the plaintiff “was not capable of understanding the connection between his PTSD and [his] abuse at the time she counseled him," and she observed that this is common in patients who seek counseling for the first time. Approximately four years later, the plaintiff began counseling with a new psychologist, who helped him understand that the abuse had caused the plaintiff's emotional and psychological problems. He filed suit against the perpetrator a year later. Id. at 326-29.
In reversing the trial court, the Court held the limitations period for abuse survivors is tolled until the plaintiff has actual knowledge of the causal connection between the abuse and the injuries for which the claim is brought. In doing so, the Court specifically rejected the trial court’s use of a “should have known" discovery rule, and concluded the statute is tolled until the survivor “in fact discovers the causal connection between the defendant’s act and the injuries for which the claim is brought." Id. at 334. It reversed the trial court because a jury could have found the plaintiff did not relate his PTSD to the abuse until the second counselor helped him do so, which was one year before he filed suit. Id. at 334.
Two years after Hollmann, the Court of Appeals held that that the discovery of less serious injuries does not commence the limitations period for actions based on childhood sexual abuse. In Cloud ex rel. Cloud v. Summers, 98 Wn. App. 724, 991 P.2d 1169 (1999), the Court of Appeals reversed a trial court’s conclusion that the plaintiff's claims were time barred because there was undisputed evidence that the plaintiff did not connect his mental illness with the abuse until after he shot his abuser. Id. at 735. In doing so, the Court acknowledged the legislature’s finding that childhood sexual abuse, by its very nature, may render the victim “unable to make a connection between the abuse and emotional harm or damage until many years later," and the Court also acknowledged its finding that an abuse survivor “may also be aware of some injuries, but not discover more serious injuries until many years later." Id. at 733. “Until that ‘disability’ is lifted, the cause of action will not accrue or, if accrued, the running of the statute of limitations will be tolled." Id. at 735.
Importantly, Cloud also recognized that a survivor’s claim against a negligent third party is also tolled until the survivor understands “that the abuse might have been prevented if persons having a special relationship with the child had not breached a duty to protect the child from abuse." Id. at 734-35. In other words, a survivor’s claim against all responsible parties is tolled under RCW 4.16.340, not just the claim against the perpetrator.
Our legislature has recognized that most survivors of childhood sexual abuse do not come forward until many, many years after they are abused because the experience is traumatic, they are unable to understand how the abuse affects them, and even if they do, they are unable to understand the full nature of how they have been damaged. When they are able to come forward, most will start by looking for answers about how the abuse happened, then for answers about how the abuse affected them, and then for answers about how they can hold the responsible parties accountable and protect other children. It is important that any attorney who tries to help a survivor find those answers understands our “broad and generous" statute of limitations for childhood sexual abuse.
- Michael Pfau and Jason Amala are Washington trial lawyers who have devoted the majority of their practices to representing survivors of child abuse. They have represented hundreds of survivors locally and across the country, including cases against the Seattle Archdiocese, the Congregation of Christian Brothers , the Spokane Diocese, the Mormon church, and the Boy Scouts of America. They can be reached via their website at http://www.pcvalaw.com.