• Key pointNegligence as a Basis for Liability The statute of limitations specifies the deadline for filing a civil lawsuit. Lawsuits cannot be brought after this deadline has passed. There are a few exceptions that have been recognized by some courts: (1) The statute of limitations for injuries suffered by a minor begins to run on the minor’s 18th birthday. (2) The statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. (3) The statute of limitations does not begin to run until an adult with whom a minister or church counselor has had sexual contact “discovers” that his or her psychological damages were caused by the inappropriate contact. (4) The statute of limitations is suspended due to fraud or concealment of a cause of action.

The South Carolina Supreme Court ruled that an adult woman who claimed that she had been molested as a child at a church-operated preschool was not barred by the statute of limitations from suing the church for the psychological injuries she sustained. An adult woman (“Amy”) claimed to have “recovered” memories while in nursing school of being sexually molested as a young child by a man at a church-operated preschool. Amy even recalled particular physical characteristics of the abuser-crooked teeth, bushy eyebrows, and frizzy hair. She also remembered the abuser warning her that if she told anyone about the abuse she would be “overtaken by the devil.” Shortly after recovering these memories, Amy sued the church that operated the preschool. She alleged that the church was legally responsible for her injuries on the basis of invasion of privacy, negligent supervision, and breach of warranty. She claimed the abuser removed her from supervised rest periods to molest her. In response, the church alleged that all the victim’s claims were barred because they were brought after the statute of limitations had expired. Under South Carolina law, the victim had to file her lawsuit within one year of her 21st birthday. She missed this deadline by nearly two years. The trial court agreed with the church, and dismissed the lawsuit. An appeals court reversed this ruling, and the case was appealed to the state supreme court.

“Repressed Memory” of Childhood Sexual Abuse

The victim claimed that she had “repressed” all memory of the acts of molestation until she was an adult, and that the statute of limitations should not have begun to run until she “discovered” that her psychological injuries were caused by the abuse. The church claimed that the discovery rule should not apply because repression is just another way of describing the normal process of forgetting. The church also argued that applying the discovery rule would defeat the purpose of the statue of limitations, since even a 3 or 4-year-old child should recognize sexual molestation to be at least a battery and therefore the statute of limitations should commence on a child’s eighteenth birthday.

The court noted that under the applicable statute of limitations a plaintiff must bring a personal injury action within three years “after the plaintiff knew or by the exercise of reasonable diligence should have known that she had a cause of action. The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist. The statute of limitations begins to run from this point ….”

The court concluded that Amy’s lawsuit was not barred by the statute of limitations if she could prove that she was not aware of her claims until she was an adult:

Young children may sense something wrong has occurred when they are molested. But they are neither mentally nor emotionally prepared to deal with it and so may repress the memory for years. Although there is no clear consensus among the psychological, medical, or legal communities about repressed memory syndrome, we do not believe the law should expect a 4-year-old child to recognize an “offensive touching,” such that the child should always be bound by the statute of limitations …. The discovery rule will apply in [Amy’s] case if she can prove to the jury that a person of common knowledge and experience would not have been put on notice that she had a claim against the church until [she was 21 years old] …. The statute begins to run on the date that the jury believed the repression ended and the resurfacing memories would have put a reasonable person on sufficient notice.

In sum, the discovery rule exists to avoid the harsh and unjust result of closing the courtroom doors to a plaintiff whose “blameless ignorance” resulted in a failure to pursue a cause of action within the limitations period. The limitations period is intended to run against those who are neglectful of their rights and who fail to exercise reasonable diligence in enforcing their rights. However, it is not the policy of the law to unjustly deprive an injured person of a remedy.

The court conceded that allowing victims to sue long after the statute of limitations has expired as a result of a “recovery” of repressed memories creates the “horrific possibility of false accusations.” As a result, it stressed that a victim such as Amy “must present independently verifiable, objective evidence that corroborates a repressed memory claim in order to assert the discovery rule.” This requirement “appropriately balances the plaintiff’s interest in pursuing a valid claim and the defendant’s interest in being able to defend a stale or false claim.” Further, making it harder for victims to prove repressed memory claims “responds to the disagreement among the psychological and medical communities about the validity of repressed memory syndrome and the danger a victim’s memories could be faked or implanted during therapy.” The court concluded that “independently verifiable, objective evidence” that corroborates a repressed memory claim may include any one or more of the following: (1) an admission by the abuser; (2) a criminal conviction; (3) documented medical history of childhood sexual abuse; (4) contemporaneous records or written statements of the abuser, such as diaries or letters; (5) photographs or recordings of the abuse; (6) an objective eyewitness’s account; (7) evidence the abuser had sexually abused others; or (8) proof of a chain of facts and circumstances having sufficient probative force to produce a reasonable and probable conclusion that sexual abuse occurred.

Application. This case demonstrates that churches face the possibility of being sued for acts of child molestation occurring many years or even decades ago by victims who claim that they “repressed” their memory of the molestation until recently. However, the court placed a number of limitations on such claims, including the following: (1) A psychologist or other mental health professional must testify that the victim was abused, and repressed all memory of the abuse, and (2) objective evidence must exist that verifies the claim of abuse. The court listed eight different kinds of evidence that would satisfy this test. The court conceded that not all courts have recognized repressed memory, and others do not recognize the discovery rule. Moriarty v. Garden Sanctuary Church of God, 534 S.E.2d 672 (S.C. 2000).

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