Historic Abuse and Statute of Limitations

Limitation in historic abuse claims has been a controversial concern for some time as strict application of the statute on Limitation can result in unfair outcomes.

As a consequence there is a groundswell of support for review and revision of limitation periods in such cases.

There is a current lack of uniformity.

In England and Wales primary limitation periods remain subject to a three year period from when a claimant reaches majority (age 21), albeit subject to discretion to extend the period in certain circumstances.

However in other jurisdictions change is already afoot and embedded.

In Australia following recommendations made by the Royal Commission into Institutional Responses to Child Sex Abuse changes have been made and implemented across the country, with states and territories having removed time limits for child sex abuse cases. Victoria was the first state to do this in early 2015 and others followed suit in 2016, 2017 and 2018.

A little closer to home Scotland introduced new legislation in the form of the Limitation (Childhood Abuse) (Scotland) Act 2017 which abolished the previous three year limitation rule with retrospective effect and applies to claims brought for abuse post September 1964. There remain challenges and Defendants can still argue a fair hearing isn’t possible if it is attributable to delay or that they will suffer “substantial prejudice” if the case proceeds. Consequently the Scottish law change is not as absolute as it is in Australian and American jurisdictions.

Much more recently on the heels of 258 victims of sexual abuse perpetrated by Catholic priests there have been calls to urge lawmakers to change the law on limitation in Nebraska. This is currently the subject of review by Members of the Legislature’s Judiciary Committee, with a draft bill sponsored by Republican Sen. Rich Pahls and calls to make institutions such as the Catholic Church, the Boy Scouts of America, or USA Gymnastics, accountable for past misdeeds, all of whom have been rocked by child sex abuse scandals.

If the bill in passed in Nebraska, like the Australian experience it would become the 18th state in America to abolish statutes of limitations in sex abuse cases.

Another 27 USA states have passed “revival laws,” which expand limitation periods that allow claims that had previously expired, to be pursued. Victims in Nebraska, can currently file claims until they turn 33.

It remains to be seen whether England and Wales will follow Scotland’s lead and the international ground swell of change. No doubt that will be influenced by any recommendations that may be made by the Independent Inquiry into Child Sexual Abuse.

Jagdeep Hayre, Partner, BLM

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