Illinois Childhood Sexual Abuse Victims Get A Break
Illinois childhood sexual abuse victims were given a chance to bring their claims for injuries by an opinion by the Illinois Appellate Court, Fifth District that was released March 7, 2008, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E. 2d 376. Essentially the court held that the statute of limitations for bringing a claim for childhood sexual abuse that became effective on July 24, 2003, and which in summary increased the statute of limitaions to 5 years from "the date the person abuse discovers or through the use of reasonable deligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse, 735 ILCS 5/13-202.2, could apply to a claim that the previous statute of limitations had already barred. The Illinois legislature passed this legislation in direct response to an opinion by the Illinois Supreme Court in 2000 which held that there is no requirement that a plaintiff must know the full extent of his injuries before the statute of limitations begins to run, and further held that Illinois law presumes an injury from an allegation of sexual abuse, Clay v. Kuhl, 189 Ill. 2d. 603, 727 N.E. 2d 217 (2000).
In 2006 two different Illinois Appellate Court decisions intrepretting 735 ILCS 5/13-202.2, reached the same conclusion "once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to a cause of action. That right cannot be taken away by the legislature wothout offending the due process protections of our state's constitution." Kuch v. Catholic Bishop of Chicago, 366 Ill. App. 3d 309, 313, 851 N.E. 2d 233, 236 (2006); see also Galloway v. Diocese of Springfield, 367 Ill. App. 3d 997, 857 N.E. 2d 737 (2006). Both cases cited to a 1997 decision by the Illinois Supreme Court that held that once a statute of repose has extinguished a cause of action, defendant has a vested right under the due process clause of the State Constitution to invoke the statutory repose period, even after the repose period was abolished by the legislature. M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E. 2d 335 (1997).
The issue the court recently wrestled with In Doe v. Diocese of Dallas, (2008), was statutory retroactivity and whether to use the "vested rights approach" or the "legislative intent approach."
The court described the vested rights approach as "the law applied was that which was in effect at the time of the appeal unless the use of that law somehow interfered with a vested right...., with the vested rights approach the legislature's intent regarding retroactivity was not relevant." The court stated that "under the legislative intent approach, the presumption is against retroactive application of the statutory changes unless the legislature clearly indicates an intent that the amendments be so applied."
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