A South Dakota Supreme Court decision in a church sexual abuse case is a striking example of how courts unfairly penalize plaintiffs who have psychological problems but wait too long to connect them to being abused.

Roger Rodriguez alleged that he was molested by two staff members at St. Joseph’s Indian School in Chamberlain, S.D., in the 1970’s when he was between seven and ten years old. He filed his lawsuit in November 2007.

Under South Dakota law, a person who was sexually abused as a child may sue within three years of the abuse or three years from the time the person “discovered or reasonably should have discovered that [his] injury or condition was caused by the act.” Rodriguez claimed he did not discover his injury until he was in counseling in 2005.

Rodriguez “was unable to and did not associate his anger, depression, resistance to authority, sexual dysfunction, drug and alcohol abuse, and violent behavior patterns with [the childhood sexual abuse],” a psychologist, Dr. Frank Dame, testified.

But the Supreme Court ruled that the case was barred by the three-year statute of limitations because Rodriguez was aware of facts that would have prompted “a reasonably prudent person to seek information about the problem and its cause” more than three years before he filed suit.

Among other things, the court said in a June 22 opinion, “He knew he had been abused as a child. He knew when he thought about the abuse he got angry, he lashed out, and he used drugs and alcohol. He knew the memory of the abuse affected his behavior. He knew the memories were painful.”

“Inquiry notice” is determined not by what a plaintiff knew subjectively but by the objective “reasonable person” test. In another church sex abuse case, the Illinois Supreme Court found that the “plaintiff had sufficient information about her injury and its cause to require her to bring suit long before the date of discovery alleged in the complaint.” Clay v. Kuhl, 727 N.E.2d 217 (2000).

But the objective test disregards the mental trauma of a sexual abuse victim — trauma that means the victim is highly unlikely to think or act like a “reasonable person.” And it leaves plaintiffs like Rodriguez worse off than those who claim they repressed memories of childhood sexual abuse.

Several states have held that repressed memory claims toll statutes of limitations under the “discovery rule” exception.

Rodriguez, a member of the Lower Brulé tribe, sued both his alleged molesters — Brother Matthew Miles and John Donadio — and the Congregation of Priests of the Sacred Heart, which runs St. Joseph's Indian School.

In a deposition, he admitted that thinking about the abuse made him “very angry” and made him want to use alcohol and drugs. But he insisted that “I didn’t understand how the abuse affected me until after I began discussing it with Dr. Dame in 2005.”

“I was,” he recalled,

prideful, tough, angry, violent, and a drug and alcohol abuser at the time, living on a reservation where those behaviors are the norm, not the exception. I never saw any reason to modify my behavior nor did I remotely link any of it to the sexual abuse. I thought my behavior was normal.

Rodriguez's testimony clearly distinguishes between his emotional responses to his memories and his intellectual appreciation of the cause of his pain. But the South Dakota Supreme Court rigidly applied the “objective” test for inquiry notice in refusing to let a jury decide whether Rodriguez waited too long to sue.

“Even though Rodriguez was subjectively unable to connect the full extent of his injuries or condition to the sexual abuse, he was aware of enough facts to put him on inquiry notice,” Retired Justice Judith Meierhenry wrote for the court.

With no end in sight to church sex abuse litigation, it is unfortunate that courts do not follow the sensitive approach of Illinois Supreme Court Justice Charles E. Freeman. Dissenting in Clay, he wrote:

I believe it is improper to hold as a matter of law that a plaintiff's awareness of any psychological distress automatically puts him on notice that his distress may potentially have an external causative agent, therefore starting the limitations clock running.

By Matthew Heller
6/30/11