2 year window to bring forth sex abuse claims closes at the end of the year
Two years ago, North Carolina legislators made a significant change to a statute of limitations law with the passage of the Safe Child Act. Before 2020, anyone who had been sexually abused as a minor and wanted to sue their abuser had to do so before they turned 21. Victims now have until their 28th birthday to file a lawsuit. As part of that legislation, anyone older than 28 who was sexually abused as a minor had a two-year window to file a lawsuit. That window closes on Dec. 31, although its constitutionality is still being argued in court.
For two years, lawyers across the state have filed lawsuits within this look-back window to try and give their clients something many of them never got due to the statute of limitations—their day in court.
Filing the lawsuit is the easy part of this process. Getting forward movement, not so much. First, there was the pandemic which slowed court proceedings across the state. Then defendants challenged the constitutionality of this two-year window. Raleigh attorney Bobby Jenkins says he will have filed over 200 lawsuits by the end of the year specifically for this look-back period.
"They are challenging the constitutionality of that, saying that once the statute of limitations expired on the claim, they argued that the defendant has what they call a vested right not to be sued," Jenkins said. "We get the cases filed, but the litigation does not proceed. We have argued the constitutionality of the statute before the three-judge panel appointed by the chief justice, and we are waiting for their decision. That affects most directly the two-year revival window that expires December 31."
One thing the two-year window has done, Jenkins said, is give some of his clients above the age of 28, hope—at least for now.
"It would give these claims back to them and give them hope for something that they thought was long gone," Jenkins said. "But then to get that jerked back out from under them, would just be cruel."
Charlotte attorney Sam McGee has also filed lawsuits during this two-year period and has run into similar issues.
"There's a bunch of cases, some have been referred to the three-judge panel of trial court judges that has convened to answer constitutional questions. Others are going straight up to the appellate courts," McGee said. "Ultimately, I don't see how the Supreme Court of North Carolina won't end up speaking on this, and it'll be that court that decides whether or not the two-year window is constitutional."
North Carolina Attorney General Josh Stein who helped draft the legislation two years ago believes the law is constitutional.
"We, the state of North Carolina, through my office, has made as forceful an argument as we can in defense of the law, in defense of its constitutionality," Stein said. "And it's our hope that the courts will see it the same way we do."
Stein says he wanted the statute of limitations to be extended from age 21 to 50. This two-year window allowing victims older than 28 to come forward, was in some ways a temporary compromise.
"There are many states in which there's no limit by when a person has to bring a case," Stein says. "The key fact that people need to understand in all of these cases is when a child is traumatized sexually, it creates all kinds of psychological problems for them. And when they turn 18, it's not as though, OK, they're now a legal adult, but they haven't processed it. And it takes years, sometimes decades, for adults to come to terms with what happened to them."
Charlotte attorney Sam McGee said it’s hard for his clients not to feel frustrated by how slow this process is going, and the fact that the two-year window could eventually be found unconstitutional.
"I think they're frustrated that it'll be a long battle and that the well-meaning effort of the General Assembly could ultimately be found to be unconstitutional," he said.
Attorneys agree the focus right now is getting lawsuits filed before the end of the year. What happens next is likely to be determined in 2022.