Why “Window” Legislation  Is Important For Texans

Child Sexual Abuse is a National Problem.

A national survey conducted by the Centers for Disease Control estimates 12.3% of female rape victims and 27.8% of male rape victims were first raped when they were age 10 or younger.[1]  The fact is the majority of sexual assaults – some studies put the number at 60% – are never reported.[2]

What is the difference between  civil sex-abuse litigation and criminal sex-abuse prosecution?

Civil claims are brought by victims against wrongdoers—perpetrators and enablers– to recover money damages for their injuries. Criminal actions are brought by the state to assess societal  punishment against wrongdoers for their actions.

What is a Statute of Limitations?

A statute of limitations is the maximum amount of time allowed by law  that a person can  bring suit against any potential wrongdoers and enablers who caused or contributed to injury. While civil statutes of limitations can be retroactive, criminal statutes of limitations cannot. What this means is that  once a  criminal statutes of limitations runs out, even a guilty perpetrator cannot be criminally charged, thus placing more children in harm’s way. But again, importantly, civil statutes of limitations can be applied retroactively in child sexual abuse cases.

Civil statutes of limitations vary from state to state and from claim to claim. For example, limitations applicable to a lawsuit based on  personal injury is different from one based on a contract disputes.  To make matters more complicated, each state may have  statutes of limitations   set to begin “running” at different time periods, depending on the nature of the case.  For example, some statutes of limitations begin to “run” at the time of the injury and others when the injury is discovered. In cases where minors are involved, limitations  are  “tolled” or suspended until  minors turn eighteen.  Finally, in some rare instances, statutes of limitations are indefinitely suspended due to the plaintiff’s incapacity or mental defect.

 

What is “Window Legislation”?

Civil statutes of limitations are created by state legislatures, so they can  be changed.  Thus, a  legislature can  enact  so-called  “Window Legislation”, which  essentially allows  a specified period of time  during  which civil claims that would otherwise  have been barred by law can be brought to court. In other words, it allows victims who were abused as children access to the courts regardless of how long ago the abuse occurred.

            Why Texans Needs A Window For Child Abuse Victims

Current Civil Statutes of Limitations favor the abusers over the victims.

Currently in Texas the civil statute of limitations extends  five years after the victim turns eighteen  if the injury is based on sexual assault.  In other words,  victims of sexual assault must file a civil suit before their  twenty-third birthday.  The reality is that most  victims  find the courage to speak out and confront their abuser only after the statute of limitations has run out.  The consensus among experts in the  mental health field is that child victims of sexual abuse frequently repress and suppress memories associated with the event until their adult years. Further, children who have been sexually abused are often not diagnosed with depression or anxiety until they are in  thirties, forties and even  fifties.

A Window protects  potential victims by  identifying  predators.

Public disclosure in civil proceedings of previously unknown predators prevents  other  il proceeding prevents tir rther, children who have been sexually abused are often not diagnosed with depression or anxichildren from being abused  in the future since predators usually prey on more  than one victim.  By bringing a civil claim and  identifying a  predator,  a victim who was not able to bring criminal charges timely can still   protect other children  by  the same abuser from committing additional sex crimes in the future.

Access to court offers  closure for victims—and justice.

Law  is  designed to provide  remedies– to right  wrongs. A legislative window simply provides former child victims a specified and limited  time period within which they  as adults, can have  access to the courts.   The burden of proof in a civil case is still on the person bringing the suit to prove that the abuse occurred, that legal injuries resulted from it and that, in short, the complaint  has merit and is not frivolous. Our legal system  has procedural rules in place to discourage the filing of  frivolous claims.

 

 

 

 

 

[1] Black M, Basile KC, Breiding MJ, Smith SG, Walters ML, Merrick MT, Chen J, Stevens MR. The National Intimate Partner and Sexual Violence Survey(NISVS): 2010 Summary Report. Atlanta GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention; 2011.

[2]  Justice Department, National Crime Victimization Survey: 2008-2012

 

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