EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, December 8, 2014

An Analysis of the Statute of Limitations in the Bill Cosby Sexual Assault Case

A woman has come forward and claimed that she was sexually assaulted by Bill Cosby in California in 1974 when she fifteen years old. Some of the discussion of this case has focused on the statute of limitations in such cases and why the woman has been able to bring her civil action 40 years later. I haven't come across an article discussing the specifics of the statute of limitations, so I thought that I'd do a post about it.

The relevant statute of limitations can be found in Section 340.1(a) of the California Code of Civil Procedure, which states in relevant part that

In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later....

The plaintiff in the Bill Cosby case is claiming that she discovered the psychological injury she suffered from Cosby's sexual abuse within the last three years, which is why her lawsuit is timely. Prior to 1994, the plaintiff would not have been able to make this claim. As the Court of Appeal of California, Second District, noted in Roe 58 v. Doe 1, 120 Cal.Rptr.3d 311 (2011),

Until 1986, all sexual molestation claims were governed by the one-year statute of limitations then applicable to most tort claims....If the victim was a minor, however, that period was tolled by section 352 until the victim's 18th birthday, meaning the victim had one year after his or her 18th birthday to file suit. In 1986, the Legislature added section 340.1, which increased the limitations period to three years, but only for abuse of a child under age 14 by a household or family member....Section 340.1 was amended in 1994 to extend the limitations period to the later of either age 26 or three years from the plaintiff's discovery that psychological injury occurring after adulthood had been caused by the actual sexual abuse. (emphasis added)

This may lead you to ask three questions: First, how many states similarly toll the statute of limitations under similar circumstances? According to Jaffar Diab, Note, Child Abuse, Experts and the Law: Making Massachusetts Expert Evidence Friendly, 37 Suffolk U. L. Rev. 121, 135 n.106 (2004), "[s]tatutes that toll the statute of limitations exist in twenty-six states." So, more than half of all states have similar tolling statutes, but I'm not sure how closely they resemble California's law.

Second, does use of this tolling statute violate the Ex Post Facto Clause, which prohibits the retroactive application of certain laws? According to the Court of Appeal of California, Second District, in Roman Catholic Bishop of Oakland v. Superior Court, 28 Cal.Rptr.3d 355 (2005), the answer is "no," there is no problem with applying the tolling statute to conduct that occurred before the tolling statute was added.

This leads to the third question: What is the likelihood that the plaintiff can prove she discovered the psychological injury she suffered from Cosby's sexual abuse in the last three years? In Roe 58, John Roe 58  brought his lawsuit in 2003 and claimed that his abuse took place from 1981-1983. In Roman Catholic Bishop of Oakland, the plaintiff also brought suit in 2003 and claimed that his abuse took place from 1980-1981. I don't know anything about the specific allegations of the plaintiff in the Bill Cosby case, but these cases lead me to believe that she potentially has a viable claim in this regard.

-CM

https://lawprofessors.typepad.com/evidenceprof/2014/12/a-woman-has-come-forward-and-claimed-that-she-was-sexually-assaulted-by-bill-cosby-in-california-in-1974-when-she-fifteen-yea.html

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Comments

I think these rules are nonsense. The reason is that "three years from the plaintiff's discovery that psychological injury occurring after adulthood had been caused by the actual sexual abuse" is a clause that is designed to account for and cover for "recovered memories." The thing is that the work of Elisabeth Loftus and others has thoroughly discredited "recovered memories" as a valid psychological phenomenon in sexual abuse cases. So these rules are exposing defendants to liability for something that never happened--repressed memories of sexual abuse.

Posted by: Daniel | Dec 9, 2014 5:52:52 PM

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