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On July
10, 2007, the Delaware legislature passed the Child Victim Act. The
bill repeals the statute of limitations in
civil suits relating to child sexual abuse cases and provides a two-year
“window” in which victims can bring a civil action in cases previously
barred by the current statute. Text of the bill follows:
Section 1. Title 10 of the Delaware Code is hereby amended by
adding to Chapter 81 a new Section 8145 which shall read as follows
§8145. Civil suits
for damages based upon sexual abuse of a minor by an adult.
(a)
A cause of action based upon the sexual abuse of a minor by
an adult may be filed in the Superior Court of this State at any
time following the commission of the act or acts that constituted
the sexual abuse. A civil cause of action for sexual abuse of a
minor shall be based upon sexual acts that would constitute a
criminal offense under the Delaware Code.
(b)
For a period of two years following the effective date of
this bill, victims of child sexual abuse that occurred in this State
who have been barred from filing suit against their abusers by
virtue of the expiration of the former civil statute of limitations,
shall be permitted to file those claims in the Superior Court of
this State. If the person committing the act of sexual abuse
against a minor was employed by an institution, agency, firm,
business, corporation, or other public or private legal entity that
owned a duty of care to the victim, or the accused and the minor
were engaged in some activity over which the legal entity had some
degree of responsibility or control, damages against the legal
entity shall be awarded under this subsection only if there is a
finding of gross negligence on the part of the legal entity
(c)
A person against whom a suit is filed may recover attorney’s
fees where the Court determines that a false accusation was made
with no basis in fact and with malicious intent. A verdict in favor
of the accused shall not be the sole basis for a determination that
an accusation was false. The Court must make an independent finding
of an improper motive to award attorneys’ fees under this section.”
Previously, Delaware did not have a special statute of limitations
for childhood sexual abuse cases. Under Delaware's general personal
injury SOL, any claims had to be brought within 2 years from the date of
the injury. 10 Delaware Code § 8119. If the abuse took place when the
victim was a minor, suit had to be filed within 2 years of reaching the
age of 18 (i.e., before the victim's 20th birthday).
Delaware has a general discovery rule for "inherently
unknowable" injuries, but the courts have previously applied the
definition of "unknowable" very strictly and have not relaxed the rule
for sexual abuse cases. More recently, in a case of first impression,
the Delaware Superior Court recognized traumatic amnesia / repressed
memory as a means of tolling the statute of limitations.
Eden v. Oblates, C.A. No. 04C-01-069-CLS (Del. Super. Dec. 6, 2006)
(slip op.). Compare Warner v. University of Delaware, 1995 WL 656797
(Del. Super., Oct 02, 1995) (NO. 94C-07-104); Garcia v. Nekarda, 1993 WL
54491 (Del. Super., Feb 19, 1993) (NO. C.A. 92C-06-008).
Resources:
Delaware Code
& Law Materials
Coordinating Council Against
Sexual Assault in Delaware
Last revision
08/25/2007. Copyright
Susan K. Smith |
