The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

NIU's Northern Exposure
Illinois’ Application of the Discovery Rule to Adult Survivors of Childhood Sexual Abuse

By Chrissie F. Garza

INTRODUCTION
Children have been sexually abused in all cultures throughout history.1 Although the abuse has not changed, society’s attitude towards it has undergone a sea change. We no longer live in a time where children are considered property and have few rights.2 Children are now seen as a valuable part of our community, and there is no doubt that sexual abuse of children is considered a heinous act of violence. And yet, children are still being abused.

Victims of this childhood sexual abuse suffer tremendous injuries, some of which can continue into adulthood.3 Some of the injuries might not manifest themselves until years after the abuse has ended. Adults often do not realize that the psychological problems that plague them day after day, year after year, are a result of the abuse they suffered as children. When victims make this causal connection, some want to pursue civil damages so that the defendant can compensate them for their injuries. Unfortunately, most often the victims’ claims are barred by the statute of limitations. Some jurisdictions apply the discovery rule to toll the limitations periods for these victims’ claims, while others do not. Illinois is one state that does not toll the statute of limitations for victims of childhood sexual abuse who were aware of the abuse but did not make the causal connection between their injuries and the abuse until after the limitations period had passed.4 By doing so, the courts in Illinois are denying these victims the compensation they deserve. Illinois should take a more liberal stance in applying the discovery rule to such cases because of the traumatic nature of the misconduct and the unique nature of the victims’ injuries.

ILLINOIS LAW, THE DISCOVERY RULE, AND ADULT SURVIVORS OF CHILDHOOD SEXUAL ABUSE
In Illinois, the statute of limitations to bring a personal injury claim based on childhood sexual abuse is 2 years.5 Section 13-202.2 of the Illinois Code of Civil Procedure provides that this limitation period does not begin to run until the person abused attains eighteen years of age.6 That section also codifies the common law discovery rule, allowing a party to commence an action for childhood sexual abuse, “within 2 years of the date the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.”7

Illinois courts have disagreed on how to apply the codified discovery rule to adult survivors of childhood sexual abuse. While Illinois has generally agreed that the discovery rule is applied to cases involving repressed memories,8 the conflict arises in the second type of case of when the victim fails to make the causal connection between the abuse and the injury until two years after she attains the age of eighteen. Several Illinois circuit courts have applied the discovery rule to this type of case, relying on the language in the statute which states that the statute of limitations is tolled until the victim “discover[s]…that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.”9 In two recent cases, however, the Illinois Supreme Court ignored the plain meaning of the statute and held that as long as the victim was aware of the abuse, the limitations period begins to run at the time the plaintiff reaches the age of majority.10

In both Clay v. Kuhl and Parks v. Kownacki, the Illinois Supreme Court refused to apply the discovery rule to victims who had not repressed the memories of abuse.11 In Clay, the victim alleged that her priest sexually abused her as a minor.12 The plaintiff always had memories of the abuse, but did not realize until she underwent therapy as an adult that there was a causal relationship between the abuse she suffered and the subsequent psychological problems she experienced.13 She did not file her claim until 1994, when she was approximately 30 years of age.14 The defendant moved for dismissal based on the statute of limitations, which would have expired in 1984 when the plaintiff turned 20 years of age.15 The trial court granted the dismissal, characterizing the acts of childhood sexual abuse as “sudden, traumatic events that triggered the running of the limitations period once the victim of the abuse attained majority.”16 The Supreme Court affirmed the action as untimely because the plaintiff had “sufficient information about her injury and its cause to require her to bring suit long before [she did].”17 The court stressed that the plaintiff did not repress the memories, and therefore, she had knowledge of the abusive injuries.18

Although the plaintiff maintained that she was unable to discover the nature of her injuries, the court in Clay reasoned that Illinois law presumes “intent to harm and a resulting injury” from this type of misconduct.19 Additionally, the court stated that there is no “requirement that a plaintiff know the full extent of his injuries before suit must be brought under the applicable statute of limitations.”20 Therefore, the limitations period starts when the injury occurs, rather than when the plaintiff realizes the consequences, or the full extent of the injury.21 Additionally, in refusing to apply the discovery rule to plaintiff’s claim, the court warned that accepting her argument would “improperly create a subjective standard by which accrual of a cause of action would have to be measured.”22

The court in Clay also refused to compare the latent manifestation of injuries in adult survivors of childhood sexual abuse to injuries incurred in exposure to asbestos.23 The plaintiff argued that the discovery rule should apply to her injuries in the same way the rule is applied to persons exposed to asbestos, because her injuries are similar to toxic exposure in that they are slow to develop and unknowable at the time of the occurrence.24 The court declined to accept the plaintiff’s reasoning because in asbestos cases the risk of harm is not immediately apparent, and those plaintiffs were unable to discover any injury until long after it occurred. In sexual abuse cases, however, the event of the abuse itself creates an immediate awareness of injury, and the plaintiff in Clay knew that she suffered some kind of injury at the time of the incident.25

In a strongly worded dissent, Justice Freeman insisted that the majority had erred in assuming (1) that the type of injuries suffered by victims of sexual abuse can be characterized as “sudden and traumatic,” and (2) that the nature of the injury was such that the “plaintiff knows or should know that someone may be legally responsible for it.”26 Instead, he categorized the plaintiff’s injuries as “disease” type injuries, in which the injuries do not “themselves put the plaintiff on notice that someone may be legally at fault.”27 In other words, the psychological injuries the plaintiff suffers from are slow to develop and may not be noticeable until a later date. Justice Freeman argued that in cases involving disease, the limitations period does not begin when the victim learns of the injury, but instead begins to run when she knows or has reason to know of the injury and also that someone may be responsible for it.28

Justice Freeman also claimed that the majority did not give a factual basis for its conclusion that the plaintiff was aware of her injury when the abusive acts took place.29 The majority ignored the plaintiff’s allegations that her injuries developed later in life, and that before 1994, she had been unaware that her psychological difficulties were related to the childhood abuse.30 He emphasized that remembering the events that were ultimately found to have caused injury does not necessarily impute awareness of a link between the event and the injury.31 Justice Freeman concluded by pointing out that according to the majority, “at some point in time, unknown and inherently unknowable even in retrospect, plaintiff was charged with knowledge of the slow and tragic disintegration of her mind.”32

In Parks v. Kownacki, the Illinois Supreme Court followed the reasoning in Clay and held that the discovery rule was not applicable to adult victims of sexual abuse who knew of the abuse, and thus, should have known that they were injured.33 Parks claimed that the reverend of her church had sexually abused her as a minor. The abuse continued for many years and was accompanied by threats, physical abuse, mental abuse, and a forced abortion.34 When the plaintiff told an employee of the Diocese about the abuse, he told her to “forgive Kownacki and forget” about what had happened.35 The church employee even performed a ceremony that the plaintiff believed would help her to accomplish this forgiveness.36

Parks admitted that although she always had the memory of some of the abuse she suffered (although she said she did repress some incidents from memory), her fear of the defendant and the ceremony conducted by the church employee facilitated her failure to understand the cause of her injuries and rendered her “psychiatrically incapable of pursuing her claims…prior to the filing of the complaint.”37 Therefore, she alleged that the limitations period did not begin to run on her complaint until she made the causal connection between the abuse and her psychological injuries.38 The court, however, rejected her reasoning because she had been aware of some injury. For example, the court pointed out that the forced abortion was an obvious injury and the plaintiff should have been aware that it was an injury at the time it occurred.39 The court relied on Clay in holding that when a victim of childhood sexual abuse “was aware of the abuse as it occurred and does not allege that she repressed the memories of that abuse, the limitations period begins to run at the time the plaintiff reaches the age of majority.”40 Additionally, according to the court, Parks involved stronger facts warranting dismissal than did Clay, because the awareness of injury in Parks was more evident.41

Interestingly, the dissenting Justice in Clay concurred with the majority opinion in Parks. Justice Freeman agreed with the result in Parks, but stated that he disagreed with the majority’s reasoning.42 Justice Freeman agreed that the plaintiff was aware of some injury before 1995, but distinguished Parks from the facts in Clay because in the latter case, the victim “alleged that the sexual conduct with her abuser was not forcible and she was never physically harmed.”43

According to Justice Freeman, the discovery rule should be applied to toll the running of the limitations period for victims of childhood sexual abuse who were reasonably unaware of the causal connection between the abuse and the latent psychological injuries.44 When incidents of injury are obvious, however, like the abortion in Parks, Justice Freeman seems to believe that the discovery rule should not apply because the victim was obviously aware that some type of injury occurred as a result of the abuse.45 In other words, the discovery rule would apply if the plaintiff was reasonable in her failure to make the causal connection, and this would be determined on a case by case basis according to the unique facts involved in each case. However, according to the majority of the justices on the Illinois Supreme Court, injury is presumed when one is abused, and therefore, the discovery rule is not applicable when the victim retains any memory of the abuse.46

HOW OTHER JURISDICTIONS APPLY THE DISCOVERY RULE IN CASES OF CHILDHOOD SEXUAL ABUSE
There are some jurisdictions that, like Illinois, do not apply the discovery rule to toll the statute of limitations for adult survivors who always had knowledge that they were sexually abused as a child.47 For example, Minnesota has a special discovery statute for cases of sexual abuse, which allows the plaintiff to file suit within six years of the time she “knew or had reason to know that the injury was caused by the sexual abuse.”48 This statute is similar to the Illinois discovery statute for childhood sexual abuse cases because both appear to toll the statute of limitations until the plaintiff knows of the injury and its cause.49 As in Illinois, Minnesota courts do not apply this statute when the victim did not repress the memory, but, instead, was always aware of the abuse.50 The Minnesota Supreme Court has held that “the nature of criminal sexual conduct is such that an intention to inflict injury can be inferred as a matter of law,” and “as a matter of law, one is injured if one is sexually abused.”51 It stressed that an objective test must be applied, and held that plaintiffs should be evaluated by a reasonable person standard and that a reasonable person knows of the injury at the time the abuse occurs.52

Minnesota courts are similar to the courts in Illinois insofar as neither applies the discovery rule to cases where adult victims of childhood sexual abuse were aware of the abuse but failed to make the causal connection between the abuse and the injuries. Courts in both states presume that the injury is inflicted when the abuse occurs, because the victim is aware of the abuse.53 They also claim that reasonable persons should have known that they were injured at the time of the abuse.54 This reasoning, however, has been criticized for not adequately acknowledging the psychological nature of the injuries and their latent development.55

On the other hand, many jurisdictions have adopted the discovery rule for victims of childhood sexual abuse who did not discover the causal connection between the abuse and their injuries until later in life.56 Over a decade ago, the Supreme Court of North Dakota was confronted with the issue of applying the discovery rule to a woman abused by her father over a five year period, almost twenty years before bringing her claim.57 It held that the “severe emotional trauma” from the sexual abuse rendered her unable to “fully understand or discover her cause of action during the applicable statutory time period.”58 Therefore, the court applied the discovery rule to her claim, holding that the statute of limitations would be tolled until the time that the plaintiff knew or reasonably should have known that a potential claim existed.59

More recently, the Supreme Judicial Court of Massachusetts has applied the discovery rule to toll the statute of limitations for a victim of childhood sexual abuse who was always aware of the abusive relationship, but not that it was the cause of his injuries. The court held that under the state’s discovery statute the plaintiff’s cause of action does not accrue until he knew or should have known that he was harmed by the defendant’s conduct.60 According to the Massachusetts limitations provision, a victim of childhood sexual abuse can file a claim within three years after reaching age eighteen, or “within three years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by said act.”61 The court held that even though the plaintiff was aware of the abuse and that the relationship was improper, the discovery rule tolls the running of the statute of limitations until the plaintiff knew, or reasonably should have known, of the causal connection between his injuries and the abuse.62

These holdings are in direct conflict with the Illinois Supreme Court’s decision not to allow victims with intact memories of the sexual abuse endured in childhood the use of the discovery rule to allow them redress as adults.63 Although the discovery rules in these states are similar to that in Illinois, their courts apply the rule in a dramatically different fashion.

ILLINOIS SHOULD CHANGE ITS POLICY TO ALLOW MORE VICTIMS THEIR DAY IN COURT
The Illinois Supreme Court should eliminate the unfair distinction in applying the discovery rule in some childhood sexual abuse cases but not in others. The distinction between victims who repress memories and those who remember the abuse but fail to realize that their injuries were caused by the abuse is unfair and is ignored in many jurisdictions.64 Illinois denies these victims their right to damages by reasoning that injury is presumed at the time of the abusive act and that a reasonable person should have known that they were injured at that time. This reasoning, however, is seriously flawed. Most often the nature of the injuries themselves prevent adult victims from understanding that their psychological difficulties are the result of their abuse as a child.65 The perpetrator of child sexual abuse is often someone that the victims know and look up to. Thus, the child victims have problems in understanding what is happening to them and utilize psychological coping mechanisms, like denial or underestimation of the effects of the abusive relationship, to help them live through their suffering.66 These coping techniques carry on into adulthood and further inhibit the victims’ understanding that they were injured and how they were affected. Just because the victims are aware of the physical acts does not mean that they are aware of the mental injuries as well. Many victims even deny to themselves that they were injured physically. Illinois courts should not punish victims who cannot understand the extent of their injuries, or are unaware that they have been injured, but try to get compensation within a reasonable time after they realize that they were injured and that the abuser was responsible for their injuries.

Illinois courts deny victims any relief on the ground that reasonable persons should have known that they were injured at the time of the abuse.67 According to Illinois courts, it is reasonable for victims to repress their memories of the abuse, but not reasonable for them to fail to recognize the link between their injuries and the abuse. This is an unfair distinction. In Clay, the Illinois Supreme Court was concerned that applying the discovery rule to these victims would create a subjective rather than an objective test of what constitutes a reasonable person.68 The court, however, did not discuss how plaintiffs could meet the reasonable standard requirements. It concluded that certain victims were not reasonable but failed to support its holding with any facts. It did not give any examples of when a victim could be reasonable in the delay of the discovery of her injuries, except for when she represses the memories of the abuse. Not knowing of the tortious act itself, however, is not the only instance in which the court can apply the discovery rule to toll the limitations period on a plaintiff’s claim. For example, plaintiffs who were exposed to asbestos, even though they knew of the exposure at the time they came into contact with the toxin, can use the discovery rule.69 This is because they were unaware of the harmful effects of the exposure until their injuries developed years later. Some children may know that the abusive conduct is wrong while others may not. By the time they reach the age of majority they may know that the acts were illegal. Most victims will try to leave their abusive history in the past and move on with their lives. Many, however, do not discover until they are well into adulthood that the abuse injured them psychologically. The court should realize that a reasonable person may not know that the mental and emotional difficulties that they suffer from, years after the abuse has ended, were caused by their abusive past.

Even if the Illinois Supreme Court is unwilling to impose a more liberal reasonableness standard to adult victims of childhood sexual abuse, it should at least treat the issue of whether or not the victim was reasonable as a question for the trier of fact. The question of whether or not to apply the discovery rule to toll the statute of limitations is generally a question of fact, unless the facts stated in the pleadings can support only one conclusion.70 Illinois courts, however, are concluding as a matter of law that the victims are unreasonable. At the very least, plaintiffs should be allowed to argue their case to a jury, who may ultimately find that they were reasonable in failing to recognize the connection between their current injuries and the earlier abuse.

In addition to utilizing a flawed rationale, the Illinois Supreme Court is also ignoring the plain meaning of the discovery statute. The statute states that the limitations period is tolled until the victim “discover[s] that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.”71 On the face of the statute there appears to be two prongs that the plaintiff must show to toll the statute of limitations. The first prong is that the victim knows of the injury and the second is a causation prong under which the plaintiff needs to show that the injuries were caused by the abuse. The Illinois Appellate Court has construed the second prong of the statute in such a way to toll the limitations period for a plaintiff who did not discover until later in adulthood that her psychological injuries were caused by the acts of childhood sexual abuse.72 Other state supreme courts, with strikingly similar statutes, have also held that the plain meaning of the statute encompasses claims from victims who were always aware of the abuse, but failed to make the causal connection.73 In denying these plaintiffs any relief, the Illinois Supreme Court has misread the statute. The statute states that the limitations period is tolled until the plaintiff knew of the causal connection between the abuse and the injuries, and so knowledge of just the abusive act and not the causal action should not be enough to trigger the statute of limitations.

If the Illinois Supreme Court refuses to apply the discovery rule more liberally, then the Illinois Legislature should be encouraged to amend the existing statute. It should change the statute to create an opportunity for the victims to gain the compensation they deserve, as a matter of fairness and justice. For example, the Massachusetts legislature codified the childhood sexual abuse discovery rule so that the limitations period would commence once the victim “discovered that an emotional or psychological injury or condition was caused by said act [of abuse].”74 By creating a distinction between physical injury and psychological injury, the legislature undermines the rationale that injury is presumed upon the act of abuse because the victims’ knowledge of the physical injury is not taken into consideration. The Illinois statute can be amended to include language that refers to psychological injuries so that the Illinois Supreme Court’s rationale that injury is presumed when the abuse occurs will be weakened. By adopting such language, the legislature would be acknowledging that psychological injuries are not as readily discoverable as physical injuries. The language would ultimately eliminate both the importance of the plaintiff’s memories of the sexually abusive acts and the distinction between victims who repress and those who do not.75

CONCLUSION
Childhood sexual abuse is a prevalent problem in our society. Oftentimes, however, because of the nature of the conduct, the abuse and the injuries go unseen. Victims suffer tremendous psychological injuries, which also operate to prevent the victims from realizing that the problems they suffer were caused by the abuse. These victims should not be denied compensation, and the perpetrators should not escape liability. Either the Illinois courts or the Illinois Legislature should take the measures necessary to allow more adult victims to bring civil claims against their childhood abusers. n

1 Diane H. Schetky, M.D. & Arthur H. Green, M.D., Child sexual abuse 29 (Brunner/Mazel, Inc., 1988).
2 Id. at 28.
3 See Schetky, supra note 1, at 41-50; Sheila Taub, Recovered Memories of Child Sexual Abuse: Psychological, social, and Legal Perspectives on a Contemporary Mental Health Controversy 55, 67-69 (Charles C. Thomas, 1999) for an examination of the types of injuries that can result from childhood sexual abuse, such as Post Traumatic Stress Disorder (“PTSD”), depression, suicide, and inability to maintain healthy relationships.
4 See infra notes 11-41 for an examination of how Illinois applies the discovery rule. Note that Illinois would apply the discovery rule in cases of repressed memories.
5 735 Ill. Comp. Stat. 5/13-202.2(b) (West 1996).
6 735 Ill. Comp. Stat. 5/13-202.2(d) (West 1996).
7 735 Ill. Comp. Stat. 5/13-202.2(b) (West 1996).
8 Johnson v. Johnson, 766 F. Supp. 662 (N.D. Ill., 1991); Phillips v. Johnson, 231 Ill. App. 3d 890, 599 N.E.2d 4 (3d Dist. 1992); Hobert v. Covenant Children’s Home, 309 Ill. App. 3d 640, 723 N.E.2d 384 (3d Dist. 2000) (applying discovery rule to non-abusers who had a duty to protect the victim); But see M.E.H. v. L.H., 283 Ill. App. 3d 241, 669 N.E.2d 1228 (2d Dist. 1996) (refusing to apply discovery rule in case of repressed memories).
9 See D.P. v. M.J.O, 266 Ill. App. 1029, 1033, 640 N.E.2d 1323, 1326 (1st Dist. 1994); See also 735 Ill. Comp. Stat. 5/13-202.2(b) (West 1996) (emphasis added).
10 Parks v Kownacki, 193 Ill. 2d 164, 737 N.E.2d 287 (2000); Clay v Kuhl, 189 Ill. 2d 603, 727 N.E.2d 217 (2000).
11 Clay, supra n. 10; Parks, supra n. 10.
12 Clay, 189 Ill. 2d at 605 (stating that the plaintiff was born in 1964, that the abuse started in 1972 or 1973, and continued for 7 years).
13 Id.
14 Id.
15 Id.; 735 Ill. Comp. Stat. 5/13-202.2(b) (West 1996) (limitations period expires two years after victim attains age of majority).
16 Clay, 189 Ill. 2d at 606, 727 N.E.2d at 219-220.
17 Id. at 610.
18 Id. at 610-611.
19 Id at 611 (relying on Doe v. Montessori School of Lake Forest, 287 Ill. App. 3d 289, 678 N.E.2d 1082 (1st Dist. 1997)).
20 Id. at 612-13
21 Id.
22 Id. at 613.
23 Id.
24 Id.; See generally Nolan v Johns-Manville Asbestos, 85 Ill. 2d 161, 421 N.E.2d 864 (1981) (holding that the discovery rule can be applied to a plaintiff who was exposed to asbestos while on the job, and who knew of the exposure but did not know that his lung injuries were the result of the exposure).
25 Clay, 189 Ill. 2d at 613, 727 N.E.2d at 223.
26 Id. at 617 (Freeman, J., dissenting).
27 Id.
28 Id. (citing Witherrell v. Weimer, 77 Ill. App. 32, 396 N.E.2d 268 (3d Dist. 1979)).
29 Id. at 619.
30 Id.
31 Id. at 621 (referring also to Nolan, 85 Ill. 2d at 169, 421 N.E.2d at 872). Justice Freeman said that the plaintiff’s complaint in that case would have been untimely because “he was always aware that he had worked with asbestos and was aware of physical problems as early as 18 years before filing his complaint”). See also Franke v Geyer, 209 Ill. App. 3d 1009, 1012-13, 568 N.E.2d 931, 933 (3d Dist. 1991) (comparing childhood sexual abuse injuries to asbestos injuries in that both types of victims do not discover the causal link between the trauma and the injury until the statute of limitations period expires).
32 Clay, 189 Ill. 2d at 622, 727 N.E.2d at 228 (Freeman, J., dissenting).
33 Parks, 193 Ill. 2d at 176, 737 N.E.2d at 294.
34 Id. at 167-171. Plaintiff alleged that most of the abuse occurred while she lived with the defendant, which consisted of sexual, emotional and physical abuse, including a forced abortion that defendant did himself at his rectory.
35 Id. at 171. The Diocese never reported the abuse to the police.
36 Id. The ceremony took place at the church, where an employee of the Diocese anointed the plaintiff with oil, and told her once again to forgive and forget. Plaintiff testified that after the ceremony she felt “as though a huge burden had been removed from her shoulders.”
37 Id.at 171-172, (stating that plaintiff maintained that she “did not realize that her sexual relationship with Kownacki was sexual abuse or that she had been injured by that abuse.” Both the ceremony and the failure to discipline Kownacki acted as psychiatric restraint on Parks, and she was unable to “make decisions, or exercise judgment, about any of the sexual and physical abuse that she suffered at the hands of Father Kownacki.”).
38 Parks, 193 Ill. 2d at 172, 737 N.E.2d at 295. Plaintiff testified that she did not link her psychological difficulties with the abuse until a social service agency contacted her years later inquiring if the defendant had abused her. Plaintiff suffered from PTSD, physical injuries from the abortion, low self-esteem, loss of enjoyment of life and earning potential, depression, nightmares, loss of sleep and poor personal relationships.
39 Id.
40 Id. at 176.
41 Id. at 178 (referring to abortion as an obvious physical injury).
42 Id. at 182 (stating that he “continue[s] to adhere to my belief that Clay was wrongly decided. Nevertheless, the facts in this case differ so dramatically from the facts in Clay, that I concur that dismissal is appropriate here”).
43 Id.
44 See supra notes 26-32, and 42-43 for an explanation of Justice Freeman’s opinions in Clay and Parks.
45 Clay, 189 Ill. 2d at 615, 727 N.E.2d at 224 (Freeman, J., dissenting).
46 See supra notes 11-25, and 33-44 for an examination of how Illinois courts apply the discovery rule to childhood sexual abuse cases.
47 See generally Blackowiak v Kemp, 546 N.W.2d 1 (Minn. 1996); J.J. v. Luckow, 578 N.W.2d 17 (Minn. Ct. App. 1998); D.M.S. v. Barber, 627 N.W.2d 369 (Minn. Ct. App. 2001); Doe v. Shults-Lewis Child and Family Servs., 718 N.E.2d 738 (Ind. 1999); Hildebrand v. Hildebrand, 736 F.Supp. 1512 (S.D. Ind. 1990); Hammer v. Hammer, 418 N.W.2d 23 (Wis. App. Ct. 1987) (applying use of the discovery rule only to those cases in which the crimes were incestuous); Doe v. Archdiocese of Milwaukee, 565 N.W.2d (Wis. 1997) (holding that the decision in Hammer is not applicable to victims of childhood sexual abuse that did not occur in an incestuous relationship).
48 MINN. STAT. § 541.0732(a) (1992).
49 735 Ill. Comp. Stat. 5/13-202.2(b) (West 1996).
50 Blackowiak, 546 N.W.2d at 3; J.J., 578 N.W.2d at 19; D.M.S., 627 N.W.2d at 373; Clay, 189 Ill. 2d at 613, 727 N.E.2d at 223; Parks, 193 Ill. 2d at 176, 737 N.E.2d at 294.
51 Blackowiak, 546 N.W.2d at 3; see also Clay, 189 Ill. 2d at 611, 727 N.E.2d at 222.
52 Blackowiak, 546 N.W.2d at 3 (stating that the plaintiff was aware of the shame and abusive nature of the relationship, and a reasonable person would have known or should have known from the feelings of shame that he was injured).
53 Clay, 189 Ill. 2d at 611-12, 727 N.E.2d at 222; Blackowiak , 546 N.W.2d at 3.
54 Clay, 189 Ill. 2d at 611-12, 727 N.E.2d at 223; Parks, 193 Ill. 2d at 178, 737 N.E.2d at 295; Blackowiak, 546 N.W.2d at 3.
55 See Clay, 189 Ill. 2d at 615, 727 N.E.2d at 225, 227 (Freeman, J., dissenting); Blackowiak, 546 N.W.2d at 4 (Gardebring, J., dissenting).
56 See generally McCreary v. Weast, 971 P.2d 974 (Wyo. 1999); Osland v. Osland, 442 N.W.2d 907 (N.D. 1989); Ross v. Garabedian, 742 N.E.2d 1046 (Mass. 2001); Cosgriffe v Cosgriffe 864 P.2d 776 (Mont. 1993); Tobin v. Damian, 772 So. 2d 13 (Fla. Dist. Ct. App. 2000); Dunlea v. Dappen, 924 P.2d 196 (Haw. 1996); Frideres v Schiltz, 540 N.W.2d 261 (Iowa 1995); Shirley v. Reif, 920 P.2d 405 (Kan. 1996); Hollmann v Corcoran, 949 P.2d 386 (Wash. Ct. App. 1997); Keene v. Edie, 909 P.2d 1311 (Wash. Ct. App. 1995).
57 Osland, 442 N.W.2d at 908.
58 Id.
59 Id. at 909 (holding also that the question of when plaintiff discovered or should have discovered her injury is a question of fact).
60 Ross, 742 N.E.2d at 1048.
61 Mass. Gen. Laws ch. 260, § 4C (West 1996).
62 Ross, 742 N.E.2d at 1049-50 (stating that the knowledge that the relationship was wrong and that the plaintiff felt shame is not enough to constitute harm to trigger the statute of limitations because the feelings of shame could stem from other factors, e.g. that it was a homosexual relationship and viewed by the church as immoral).
63 See supra notes 11-41 for an examination of how Illinois applies the discovery rule to childhood sexual abuse cases.
64 See supra notes 56-62 for jurisdictions not in agreement with Illinois.
65 See Schetky, supra note 1, at 41-50; Taub, supra note 3, at 67-69, for a description of the various injuries victims suffer from, such as PTSD, depression, suicide, and inability to maintain healthy relationships. See also Schetky, supra note 1, at 43-44; Taub, supra note 3, at 70, for a discussion of why victims do not understand the causal connection between the abuse and the injuries, which is most often due to the use of psychological coping mechanisms.
66 Schetky, supra note 1, at 43-44; Taub, supra note 3, at 70.
67 See Clay, 189 Ill. 2d at 611-613, 727 N.E.2d at 222-223; Parks, 193 Ill. 2d at 178, 737 N.E.2d at 295.
68 Clay, 189 Ill. 2d at 613, 727 N.E.2d at 223.
69 See Nolan, 85 Ill. 2d at 169, 421 N.E.2d at 867.
70 Id. at 169-171; Clay, 189 Ill. 2d at 609, 727 N.E.2d at 221.
71 735 Ill. Comp. Stat. 5/13-202.2(b) (West 1996).
72 D.P. v. M.J.O., 266 Ill. App. 3d 1029, 640 N.E.2d 1323 (1st Dist. 1994).
73 McCreary, 971 P.2d at 980; Cosgriffe, 864 P.2d at 780.
74 Mass. Gen. Laws ch. 260, § 4C (West 1996).
75 This does not mean that victims who knew that their psychological injuries were caused by the abuse should be allowed to use the discovery rule.

Chrissie Garza is a second year law student at Northern Illinois University College of Law. She serves as a staff member on the Law Review, and is a member of the Public Interest Law Society, Latino Law Students Association, and Phi Delta Phi.


 
 
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