| Illinois has a special
statute of limitations for survivors of childhood sexual abuse. As
amended in 2003, Illinois Statutes
§
5/13-202.2(b) provides:
An action for damages for personal injury based on
childhood sexual abuse must be commenced
* within 10 years of the date the person attains the age of 18;
or
* within 10 years of the date that a legal disability is removed;
or
* within 10 years from the date that the victim is no
longer is subject to threats, intimidation, manipulation, or fraud
perpetrated by the abuser or by any person acting in the interest of
the abuser; or
* within 5 years the person
discovers or through the use of reasonable diligence should discover that the act of
childhood sexual abuse occurred and that the injury was caused by the childhood sexual
abuse.
Parts of the Illinois statutes are retroactive, and others not, which
has lead to complicated case analyses. See
Galloway v. Diocese of Springfield, 857 N.E.2d 737 (IL 2006) for a
discussion of the statute and its legislative history.
The
previous version of the statute has been applied to perpetrators and non-perpetrators. Hobert v.
Covenant Children's Home, 309 Ill. App. 3d 640, 723 N.E.2d 384; 243 Ill.
Dec. 352 (Ill. App. 3d 2000).
The statute is a statutory codification of a judicially
created common law rule. D.P. v. M.J.O., 266 Ill. App. 2d 1029, 1032 (1994). The
common law discovery rule required both knowledge of the injury and of its wrongful cause
before the statute of limitations began to run. Witherell v. Weimer, 85 Ill. 2d
146, 155-56 (1981). "Knowledge" means sufficient information to put the victim
on notice and does not have to be actual or full knowledge.
Several Illinois courts have held that the discovery
rule applies to childhood sexual abuse cases where the plaintiff repressed her memory of
the abuse. See, for example, Pedigo v.
Pedigo, 292 Ill. App. 3d 831, 839 (1997); D.P. v. M.J.O., 266 Ill. App.
3d 1029, 1033-34 (1994); Phillips v. Johnson, 231 Ill. App. 3d 890, 893 (1992).
While the Clay court recognized that the validity of repressed memories has been
found to be "controversial and of suspect nature," Doe v. McKay, 286
Ill. App. 3d 1020, 1025 (1997); it nonetheless remanded the case for further proceedings,
leaving it for the trial court to determine the legal and scientific sufficiency of the
plaintiff's claims.
Although by its plain language the statute
appears to be a "realization" discovery type where the statute of limitation
does not begin to accrue (run) until the victim realizes the connection between the abuse
and the injury, the Illinois Supreme Court has not accepted a pure realization approach
in the past.
In a case where the victim was aware of the abuse but failed to make a
connection between the abuse and her injuries and therefore failed to
bring a timely action, the Supreme Court was unwilling to toll
(extend) the statute of limitations. Clay
v. Kuhl, 2000 Ill. LEXIS 6, *; 189 Ill. 2d 603;727 N.E.2d 217; 244 Ill. Dec. 91 (Ill. 2000). See also Benton v. Vonnahmen,
679 N.E.2d 1270 (Ill. App. [5 Dist.] 1997).
In an eloquent decision, the Fifth District Appellate Court applied
the doctrine of estoppel and legal disability to a childhood sexual
abuse victim to extend the statute of limitations under a a compelling
set of facts. Parks v. Kownacki, 305 Ill. App. 3d 449, 711 N.E.2d 1208;
238 Ill. Dec. 547 (Ill. App. 5th Dist. 1999)
Resources:
Illinois Coalition Against Sexual
Assault
Blog Article "Illinois Sexual Abuse Victims Abused Again" describing
contradictions in the caselaw governing interpretation of the Illinois
SOL
Revised
08/25/2007.
Copyright Susan K. Smith 1996-2003
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