H.330, which I sponsored, passed out of the House on a voice vote this week.  It moves onto the Senate.  The following is my report on the bill that I presented to the House on Second Reading of the bill.

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Last week, this body passed out H.511, which related to statutes of limitation for certain criminal offenses.  H.330 addresses the statute of limitation for civil actions based on childhood sexual abuse.  Statutes of limitations in a civil context establish how much time someone has to bring a lawsuit against someone else.  They set the window during which a plaintiff can file a claim in court.

Victims of childhood sexual abuse may seek damages from their abuser in a civil action.  Sexual abuse of a child often leads to depression, PTSD, alcohol and opioid abuse, and many other health problems.  It is an Adverse Childhood Experience that can lead to years of negative impact on the victim.

However, victims of childhood sexual abuse often do not disclose the abuse until long after it occurred.  Victims are often ashamed of the abuse and keep it secret.  They may suffer severe psychological and emotional damage that may not manifest itself until adulthood.  Others develop an arsenal of defense mechanisms and may repress memory of the abuse for an extended period of time.

Most abusers are familiar to their victims.  The abuser may be someone the victim trusted or someone in a position of power.  These associations can lead victims not to disclose their victimization promptly, if at all.

In short, a victim may bury the abuse for years.  But they may eventually come forward.  The average age for disclosure of childhood sexual abuse is 52 years-old.  If there is a restrictive statute of limitations, delayed disclosure can prohibit a victim from seeking justice in a courtroom.

Under current Vermont law, a victim can bring a civil lawsuit for childhood sexual abuse within six years after the abuse.  Alternatively, the victim may bring a civil lawsuit within six years after the victim has “discovered” that an injury or condition was caused by the abuse.  This is called the discovery rule.  It extends the time within which a victim of childhood sexual abuse can bring a civil lawsuit against an abuser if the victim does not connect an injury with the abuse until long after the abuse occurred.

But there are problems with the discovery rule.  Even though it extends the time to sue, it still imposes an unnecessary barrier to a victim’s ability to seek justice.  Under the discovery rule, victims who file lawsuits would have to prove the point in time when they learned that their injuries were caused by previous abuse.  There is no rational reason to place this burden on victims.  The more important point in time is when victims are psychologically ready and able to pursue relief in a court of law.

One of the purposes of any statute of limitations is to protect a defendant’s interest in repose, or their safety from being sued.  But that purpose should not be controlling here.  Children who are sexually victimized will continue to suffer from the emotional and psychological consequences of that abuse for the rest of their lives. Protecting the perpetrator from fear of an impending lawsuit is unsupportable when his or her acts will have a lifelong, negative impact on the victimized child.  The public’s interest in providing an adult abuse survivor with adequate compensation far outweighs the defendant’s right to repose.

Accordingly, H.330 would eliminate the Statute of Limitations ANDthe discovery rule for childhood sexual abuse.  A victim would be able to sue his or her abuser at any time.  When they are ready to do so.  Section 522(a) provides that “A civil action brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse may be commenced at any time after the act alleged to have caused the injury or condition.”

Vermont would join nine other states that have eliminated the statute of limitations for such claims.

The Judiciary Committee did consider the concern that lifting the statute of limitations would lead to an increase in the filing of fraudulent claims or misremembered or misguided claims.

Section 522(b) of the bill and the rules of civil procedure address this concern.

Section 522(b) provides that complaints alleging childhood sexual abuse would be sealed by the court.  The complaint would remain sealed until the defendant files an answer or the Court denies a motion to dismiss filed by the defendant, meaning that it finds there may be some merit to the claim.  The public would not have access to the court record until after these initial proceedings.

Defendants are also protected by Rule 11 of the Rules of Civil Procedure. That rule provides that a Court may sanction someone who files a complaint or other pleading that is frivolous or is filed for any improper purpose, such as to harass.  So, someone who files a fraudulent claim of childhood sexual abuse may have to pay the costs and attorney fees of the defendant.

Requiring all lawsuits based on childhood sexual abuse to be filed under seal not only protects defendants from frivolous filings.  It also protects victims in the initial stages of litigation. Many potential plaintiffs are already discouraged from filing suits due to the highly emotional and disturbing issues involved.  As we heard from one witness, victims are reluctant to bring these cases.  Starting a court process is bound to be overwhelming for an individual bringing such a claim – the initial period where the case is under seal would provide a window of privacy to the plaintiff.

Section 522(c) of the bill is existing law.  It defines “childhood sexual abuse.”

Section 522(d) provides that the elimination of the statute of limitations for claims of childhood sexual abuse applies retroactively.  That means that if a victim’s claim is currently barred by the existing statute of limitations, after passage of H.330, the victim would be able to bring the claim.

A victim of childhood sexual abuse can also make a claim against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse if that entity failed to exercise reasonable care to prevent the abuse.  This bill eliminates the statute of limitations for that claim as well.

The Committee vote was 11-0-0

Statutes of limitation serve no rational purpose in civil cases filed by adult survivors of childhood sexual abuse. Their only effect is to deny these victims the opportunity to hold their abusers accountable.  Eliminating the statute of limitations to open the courthouse doors to adult survivors of childhood sexual abuse will shift the cost of abuse from the victims to the abusers, provide an additional deterrent to this conduct, and identify hidden child predators.