Illinois Sexual Abuse Victims Abused Again

Illinois sexual abuse victims often confront confusing statute of limitations issues when bringing claims for chilhood sexual abuse. The Illinois Supreme Court held that under the common law discovery rule governing when a statute of limitations commences, there is no requirement that plaintiff must know the full extent of her injuries before the applicable statute of limitations begins to run. Clay v. Kuhl, 189 Ill. 2d 603, 727 N.E. 2d 217 (2000).

Plaintiff in Clay was born in 1964, sexually abused on hundreds of ocassions in 1972 and 1973, and filed suit against Kuhl and his religious order in 1996. Plaintiff alleged that it was not until 1994 that she first became aware that Kuhl’s misconduct caused her injuries.

The defendants moved to dismiss complaint pursuant to 735 ILCS 5/2-619(a)(5), arguing that the time for filing suit expired on March 31, 1984, when she turned 20 years old. Illinois law allows minors to bring suit within two years of reaching majority; 18 years old being majority in Illinois, 735 ILCS 5/13-211. The trial court granted defendants’ motion to dismiss. Plaintiff appealed and Illinois Appellate Court reversed the dismissal, Clay v. Kuhl, 301 Ill. App. 3d 694, 704 N.E. 2d 875. The Illinois Supreme Court granted leave to appeal and reversed the Appellate Court and affirmed the trial court’s dismissal.

In arguments before the Illinois Supreme Court plaintiff contended that application of the discovery rule is necessary because plaintiff did not realize the full extent of her injuries until well after her 20th birthday. The discovery rule states that a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E. 2d 976 (1981).

The legislature in 1991 codified the common law discovery rule for actions involving childhood sexual abuse, 735 ILCS 5/13-202.2. In Clay, the Supreme Court noted that if plaintiff’s claim was already barred under the common law discovery rule prior to the the enactment of 735 ILCS 5/13-202.2, the new statute of limitaions cannot revive a claim that had already expired. Essentially the court held that a defendant has a vested right once the initial statute of limitaions has expired, and that a new statute of limitations could not act to revive a previously expired claim. See also, M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E. 2d 335 (1997).

The plaintiff contended that her injuries did not fully manifest themselves until 1994, when she was 30 years old. The Clay court held:

There is no requirement that a plaintiff must know the full extent of her injuries before suit must be brought under the applicable statute of limitations….Notably, Illinoois law presumes an intent to harm and a resulting injury from the type of misconduct alleged by Kuhl,

189 Ill. 2d at 611, 727 N.E. 2d at 222. Therefore claims of sexual dysfunction or psychological problems that manifest themselves much later in life are barred unless brought within the statute of limitations and common law discovery rules do not toll these claims. Accordingly, the Illinois Supreme Court held the statute of limitaions expired in 1984, when plaintiff turned 20 years old.

In 2003, the Illinois legislature enacted, 735 ILCS 5/13-202.2, which extended the statute of limitations for childhood sexual abuse to 5 years from the date plaintiff discovers both (1) the act of childhood sexual abuse occurred and (2) that the injury was caused by the childhood sexual abuse. This legislation was a direct response to the harsh effect of the Supreme Court’s decision in Clay. The Appellate Court in Kuch v. Catholic Bishop, 366 Ill. App. 3d 309, 851 N.E. 2d 233 (2006), held that expiration of the statute of limitations or statute of repose gives defendants a constitutionally protected vested right, and that the 2003 amendment (735 ILCS 5/13-202.2) does not revive the otherwise time barred claim.

A careful reading of 735 ILCS 5/13-202.2, regarding the statute of limitations for childhood sexual abuse is only one step in determining whether a victim of sexual abuse has a viable cause of action. A search of the legislative history is also necessary to determine whether the claim has ever been barred by an earlier version of the statute of limitations or statute of repose.

Tragically, Illinois Supreme and Appellate Court decisons have trumped legislative efforts to provide a remedy for victims of childhood sexual abuse. The passage of time will dissipate the harsh results of protecting the vested rights of pedophiles, but far too many victims of childhood sexual abuse are abused yet again by the Illinois courts.