Part 4 of 4: The ‘Discovery Rule’ and What It Means for Abuse Victims and Churches

The discovery rule is an exception to the statute of limitations with far-reaching implications for both abuse victims and churches.

Editor’s Note: Child abuse scandals continue to garner widespread media attention as well as the attention of lawmakers nationwide. As more victims come forward, often years or decades after suffering alleged abuses, they learn their state’s statute of limitations prevent them from seeking damages from the perpetrator or, when relevant, the perpetrator’s employer through civil lawsuits. These time bars have become subject to changes—and in some instances, outright removals—by state legislatures in an effort to help victims.

This four-part series focuses on this continuing trend, helping churches and church leaders understand the potential ramifications. This part looks specifically at the “discovery rule,” an exception to statutes of limitation long available to victims—and especially relevant to churches in states where extensions or removals of statutes of limitation have not occurred. This rule also applies in states where extensions have been granted, but deadlines still exist.

Some states have adopted, either through legislation or court decision, a limited exception to the statute of limitations known as the discovery rule.

Under this rule, the statute of limitations does not begin to run until a person “discovers” that his or her injuries were caused by a particular event or condition, or, with the exercise of reasonable vigilance, should have discovered the connection. It does not matter how long ago the injury occurred.

The discovery rule has been applied most often in the following three situations:

1. Medical malpractice. In some cases, medical malpractice is difficult, if not impossible, to recognize until after the statute of limitations has expired. To illustrate, if a surgeon inadvertently leaves a scalpel in a patient’s body during an operation, and the patient does not discover this fact until after the statute of limitations for medical malpractice has expired, the patient should not be denied his or her day in court. Under the discovery rule, the statute of limitations begins to run not when the malpractice occurred, but when the patient knew or should have known of it.

2. Child molestation. Some courts have applied the discovery rule in cases of child sex abuse. These courts have concluded that young children may “block out” memories of molestation and not recall what happened for many years. The statute of limitations does not begin until the victim’s eighteenth birthday, or until the victim knew or should have known that his or her emotional or physical injuries were caused by the acts of molestation. Some courts that have applied this rule have limited it to victims who were very young at the time of the molestation. Adults who claim that they repressed memories of abuse occurring when they were adolescents often have a difficult time convincing juries that they are telling the truth.

3. Seduction of adult counselees. Some courts have applied the discovery rule in cases of sexual contact between a minister and an adult counselee. These courts have concluded that adults who engage in such acts with a minister may attempt to repress their memory of them or be so intimated by the authority of the minister that they lack the capacity to file a lawsuit.

Key point. Any rescission or extension of the statute of limitations in child sex abuse cases, or any “revival” of child abuse claims barred under prior law, presents extraordinary difficulties for a church that is sued as a result of an alleged incident of sexual misconduct that occurred many years ago. In some cases, church leaders cannot even remember the alleged wrongdoer, much less the precautions that were followed in selecting or supervising this person.

Several courts have been reluctant to apply the discovery rule in cases of child abuse because of the difficulty of repressing knowledge of such events, especially for victims who were adolescents at the time the alleged abuse occurred. As one court noted, “The discovery rule does not generally apply to claims from a violent assault because the plaintiff is usually aware of the assault.” Doe v. Jesuit College Preparatory School, 2022 WL 2352953 (Tex. App. 2022).

Example. A federal court in Vermont ruled that an adult who claimed to have been sexually abused by a nun some 40 years earlier could sue a Catholic diocese for his alleged injuries. 

An adult male (the plaintiff) began receiving intensive psychotherapy for what he alleges were severe emotional problems. As a result of this therapy, the plaintiff claimed that he discovered he was the victim of “childhood sexual abuse, physical abuse and psychological abuse” allegedly occurring 40 years ago when he was a resident of a church orphanage.

The plaintiff filed a lawsuit against “Sister Jane Doe,” the alleged perpetrator (whose identity was unknown) and various religious organizations allegedly responsible for hiring and supervising Sister Jane Doe.

The plaintiff alleged in his lawsuit that he had “used all due diligence, given the nature, extent, and severity of his psychological injuries and the circumstances of their infliction, to discover the fact that he has been injured by the sexual abuse.” The diocese urged the court to dismiss the case on the ground that the statute of limitations had expired long before.

Under Vermont law, when a plaintiff sues to recover damages for injuries “suffered as a result of childhood sexual abuse,” the lawsuit must be brought within “six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later.”

The diocese claimed that since the alleged abuse occurred over forty years ago it is reasonable to assume that the plaintiff should have discovered the cause of his injuries long ago. It also argued that forcing it to defend against an alleged injury occurring so long ago violates the very purpose of a statute of limitations—relieving defendants of the difficult if not impossible task of defending against such claims.

The court rejected these arguments and ruled that the statute of limitations had not expired on any of the plaintiff’s claims (except for assault and battery, which the court deemed to be unrelated to childhood sexual abuse). The court observed that under Vermont law, the test is when the plaintiff in fact discovered that his injuries were caused by childhood abuse, and not when he reasonably could have made this discovery. Barquin v. Roman Catholic Diocese, 839 F. Supp. 275 (D. Vt. 1993).

‘Active Concealment’ and fraud can also extend statutes of limitations

Some courts have permitted the statute of limitations to be suspended in limited circumstances, including fraud or the “active concealment” of the existence of a civil claim against a wrongdoer.

Example. A Tennessee appellate court ruled that in a lawsuit alleging that church entities were negligent regarding the sexual abuse of minors by a pastor, the trial court erred in dismissing the complaint based on the statute of limitations when the victims alleged that efforts were made by certain of the church defendants to hide the sexual abuse and a “whitewash” ensued because the victims alleged fraudulent concealment, and that statute of limitations did not begin to run until after the lawsuit was filed. Doe v. Presbyterian, 2022 WL 1837455 (Tenn. App. 2022).

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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