State Courts Diverge on Allowing Civil Claims for Child Sexual Abuse Outside Statute of Limitations

Institutions such as schools and churches that have a duty to protect children are fighting against state laws that revive claims for child sexual abuse — with mixed success.

Several states, including North Carolina, Georgia, Kentucky, and Maryland, have enacted legislation reviving child sexual abuse civil claims for which the statute of limitations has expired. This legislation has been passed by unanimous or nearly unanimous legislatures. The laws are based on experts’ view that child sexual abuse “inflicts a unique trauma on victims, rendering many of them unable to disclose their abuse until decades later.” This makes limitations on the time a survivor can file a claim particularly incompatible with justice.

But legislation extending the time to file such claims is regularly challenged in state courts by institutions that exposed children to people the institutions knew or should have known were abusers. These institutions claim that they should not be held accountable for abuse if civil claims were previously barred by the statute of limitations. This argument relies on the idea that the ability to raise the defense that a civil claim has been extinguished by the statute of limitations — and, thus, to escape liability — is a “vested right.”

A vested right is a property right that is “secured, established and immune from further legal metamorphosis” — the government cannot take away a vested right by legislation or other means. To pass a law impairing a vested right deprives a party of their property without due process of law. The doctrine hails from common law and was traditionally applied to real property. For example, a New York court held in 1802 that not even the American Revolution could interfere with a person’s previously vested right to property, finding “that British heiresses who had inherited property in New York prior to the revolution were not deprived of that property by the war.” Courts have since expanded the doctrine of vested rights to include not only real and personal property, but also other intangible rights, such as the right to rely on a previously available legal defense.

A North Carolina appellate court recently considered whether a defendant in a child sexual abuse case had a vested right to rely on a statute of limitations defense. In McKinney v. Goins, the plaintiffs were members of a high school wrestling team who said they sustained physical and sexual abuse at the hands of their coach. The school board had received multiple complaints about the coach’s abuse but failed to adequately investigate the allegations or to take corrective action. The plaintiffs were previously barred from filing civil claims due to the expiration of the statute of limitations, but were able to file claims under North Carolina’s SAFE Child Act, which reopened the civil statute of limitations for child sexual abuse claims for a period of two years.

The court held that allowing claims against the school to move forward did not offend due process. It explained that a statute of limitations was “purely procedural” and therefore could not affect vested rights. “The fungible benefits of statutory procedure affecting remedies,” it said, did not constitute property.

At the same time, the court decided a companion case, Cohane v. The Home Missioners of America, in which the plaintiff alleged he was sexually abused in the 1970s by a member of the clergy. The institutional defendants, a Catholic missionary organization and the Roman Catholic Diocese of Charlotte, received credible allegations of child sexual abuse against the clergy member but failed to warn the community or prevent him from working with children in the church’s care. Cohane considered whether the SAFE Child Act revived negligence claims against institutional actors in addition to claims against actual perpetrators of abuse. The court said it did.

The success of due process claims involving civil statutes of limitations varies from state to state. The U.S. Supreme Court has held that legislation lifting a statute of limitations does not amount to taking property from defendants without due process of law. As a result, state supreme courts that interpret state due process guarantees as equivalent to the 14th Amendment’s protections have rejected such claims. For example, in 2021 the Georgia Supreme Court did so in Harvey v. Merchan, expressly adopting the U.S. Supreme Court’s reasoning that the protections afforded by statutes of limitations “have never been regarded as a fundamental right.”

Meanwhile, revival legislation has been declared unconstitutional in states with due process guarantees that have been interpreted as going further than the federal Constitution’s. This past June, for example, the Colorado Supreme Court ruled that a law allowing liability for previously time-barred sexual abuse claims violated that state constitution’s prohibition on retrospective legislation — a prohibition grounded in due process.

Statutes of limitations serve many purposes, such as protecting potential defendants against old claims that would be difficult to defend and that could create “manifestly unjust and oppressive” results. But would it be manifestly unjust and oppressive to allow civil lawsuits against an institution that knew or should have known that children in its care were at risk of being sexually abused by an agent of the institution? For example, in Cohane, the plaintiff was sexually abused by a clergyman whom the Catholic Church had reassigned on multiple occasions after credible allegations of abuse, never reporting the abuse. The true injustice, it seems, would be to allow to block a survivor’s lawsuit.

Legislatures should be free to modernize state laws and expand access to justice for survivors of child sexual abuse. During oral arguments, a lawyer for the plaintiff in Cohane explained that civil lawsuits are meant to provide survivors with a remedy, ensure accountability for wrongdoing, and shift the burden of damages. The civil tort system serves as a deterrent against the endangerment of others — including against an institution’s exposure of children in its care to abusers that it knew or should have known were a danger to kids. The attorney emphasized the importance of deterring institutions, in addition to the perpetrators themselves, because institutions have the power to enact policy changes that can prevent future abuse.

The defendants in McKinney and Cohane have appealed the decisions to the North Carolina Supreme Court. Newly appointed Justice Allison Riggs, who wrote for the majority in McKinney and Cohane before she was elevated to the state supreme court, will not participate in the high court’s consideration of the case. 

Another case, Thompson v. Killary, which concerns Kentucky’s law allowing survivors of child sexual abuse to file claims after the statute of limitations has passed, was argued before that state’s supreme court on October 19. A Maryland court is also considering the constitutionality of that state’s revival law — specifically, whether a Catholic diocese there has a vested right to rely on a statute of limitations defense.

These cases pit policy, science, and modernization of child sexual abuse law against institutional actors determined to escape the clutches of liability for abuse that they could have prevented or at the very least mitigated. Whatever the outcome, it will have enormous implications for survivors of child sexual assault.

Emma Hetherington is a clinical associate professor at the University of Georgia School of Law and director of the Wilbanks Child Endangerment and Sexual Exploitation Clinic.

Suggested Citation: Emma Hetherington, State Courts Diverge on Allowing Civil Claims for Child Sexual Abuse Outside Statute of Limitations, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Dec. 8, 2023), https://statecourtreport.org/our-work/analysis-opinion/state-courts-diverge-allowing-civil-claims-child-sexual-abuse-outside