We granted writ to determine whether the equitable doctrine of contra non valentem suspends the running of prescription until the parents of a sexually abused child learn about the molestation and/or the various types of molestation. The trial court declined to apply this equitable doctrine to suspend the running of the one year liberative prescriptive period for the three year period in which the young child was repeatedly sexually molested. Consequently, it found only the defendant's last act of molestation fell within the one year period and had not prescribed. The court of appeal affirmed. It determined the facts did not warrant application of the doctrine of contra non valentem since defendant did not harm or otherwise threaten the young child with physical violence to coerce his silence. We reverse.
Brandon Wimberly, born June 18, 1977, was 9 years old when he was sexually abused by his older brother's Boy Scout leader, Michael Keys. A single, painful incident occurred wherein Keys grabbed Brandon's penis and threatened to pull it off. The fearful adolescent promptly told his father, Thomas Wimberly, even though Keys had warned him not to tell. Due to this incident, Brandon's parents placed him in weekly group therapy under social worker Charles Lee
The next month, Brandon disclosed to his therapy group that a 16 year old had ejaculated in his presence, but he denied having physical contact with him. In January, 1988, Brandon made a private disclosure to Lee about how a boy had put his mouth on his penis and bit. No names or timeframes were mentioned. Lee believed Brandon was relating a long-past event.
It was not until Monday, April 25, 1988, that Brandon first disclosed to Lee a single incident of oral sex had occurred over the previous weekend (April 22-24, 1988) with a young man named Russell Gatch ("Russell"), who was almost 18 (born July 3, 1970). Russell was a neighbor and a friend of Brandon's older brother. Lee promptly informed Brandon's parents, who were completely astounded by the disclosure.
The Wimberlys took Brandon to the Bossier City Police station that evening, but had to return two days later to meet with a juvenile division officer. The juvenile officer interviewed Brandon without his parents being present. His police report indicates that Russell had been performing oral sex on Brandon (by Russell placing his mouth on Brandon's penis), for a 3 year period at a place known to the neighborhood kids as the "trails." The report reflects that during the previous year, 10 to 15 incidents had occurred. The last occurrence, the single event Brandon described to Lee, happened when Brandon rode his bicycle past Russell's home and stopped to admire Russell's new automobile. Russell, who had been sitting on a porch swing, went to the bushes near his home and invited Brandon to join him. Russell then directed Brandon to remove his pants. Brandon complied. After the act was completed, Russell's mother discovered them in the bushes and inquired as to the nature of their activities. After she was given an excuse, she left. The police officer guesstimated this last act of molestation occurred between the dates of April 10-16, 1988. (Bossier City Police Offense Report No. 88-12485) The officer arrested Russell. His police report reflects that Russell admitted to the occurrence of the above described event, and admitted to four other incidents with Brandon. (Bossier City Police Offense Report No. 88-12485, supplement)
Thereafter, defendants filed a peremptory exception raising the objection of prescription. Their exception asserts that Brandon's seventh birthday was on June 18, 1984; Russell was arrested on April 27, 1988; police records place the last act of molestation as occurring between April 10 and 16, 1988
Brandon's parents' opposition asserts that "the discovery rule"
The deposition and live testimony introduced at the hearing on the exception reveals Russell has a history of sexually molesting young boys. He began molesting boys in the early 1980's in Bossier City before his family moved for a year and a half to Arkansas. He admitted to sexual acts with several boys in Arkansas, and to an arrest in that state on sexual molestation charges. Upon his return to Bossier City, he renewed his sexual acts with the young boys in Brandon's neighborhood. Russell admitted having oral and anal sex with Brandon and to having oral sex with Brandon's friends Jeremy, Corey and Chris. He could not remember whether he had group acts with Brandon and his friends, but Brandon recalled such acts occurring with Jeremy (Jason) and Chris. Russell also admitted to being caught with a boy at camp by his Scout Master, Mike Keys.
Lee indicated, in therapy, Brandon progressed as expected. He tried to develop trust and rapport with the other boys in his group, he "[d]id not disclose or open up immediately about what was going on with him, but sort of testing out, seeing where he fit in with the group setting at that time with the other boys." Lee said Brandon first divulged the abuse by Russell on April 25, 1988. Brandon told him he needed to talk privately about something over which he was very upset. Then Brandon revealed the single incident in Russell's yard which had occurred over the previous weekend. Lee said it was months before Brandon disclosed to him that the sexual acts with Russell had been a regular, on-going, almost daily occurrence. Lee related that Brandon did not tell him about the incidents with Russell before April 25, 1988 because "he was afraid to tell his parents." Brandon was afraid he would get into trouble or Russell would say he "liked it." Lee also said the longer Brandon was counseled, the more he revealed.
Brandon, a seventh grader at the hearing held five years after his initial disclosure, informed the court he did not tell Lee earlier because Russell warned he would get into trouble with his parents if he told. He said
The trial court found the last act of sexual molestation, the one in the bushes by the Gatch home, occurred on the weekend of April 22-24, 1987 and, therefore, had not prescribed. However, the trial court rejected the doctrine of contra non valentem on the basis of Crosby v. Keys, 590 So.2d 601, 602 (La.App. 2d Cir.1991), writ den., 593 So.2d 373 (La.1992),
The court of appeal affirmed. 621 So.2d 633 (La.App. 2d Cir.1993). It held that, since Russell did not harm or otherwise threaten Brandon with physical violence in order to coerce his silence, Brandon's fear of his malefactor, alone, did not warrant application of the exceptional doctrine of contra non valentem.
We granted the Wimberlys' application for certiorari, 629 So.2d 1141 (La.1993), to determine whether the facts of this case warrant the application of the juridically created doctrine of contra non valentem.
Liberative prescription runs against all persons unless exception is established by legislation. LSA-C.C. art. 3467. It runs against absent persons and incompetents, including minors and interdicts, unless exception is established by legislation. LSA-C.C.
When a petition reveals on its face that prescription has run, the plaintiff has the burden of showing why the claim has not prescribed. Bouterie v. Crane, supra; Lima v. Schmidt, supra. The plaintiff has three theories upon which he may rely to establish prescription has not run, to wit, suspension, interruption or renunciation. Id. The Wimberlys herein rely on the suspensive theory of contra non valentem agere nulla currit praescripto, which means "prescription does not run against a party unable to act."
The courts created the doctrine of contra non valentem, as an exception to the general rules of prescription. Hillman v. Akins, 631 So.2d 1 (La.1994); Bouterie v. Crane, supra; Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992); Plaquemines Parish Com'n Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054 (La.1987). The doctrine is contrary to the express provisions of the Civil Code. See LSA-C.C. art. 3467; Bouterie v. Crane, supra; Plaquemines Parish Com'n Council v. Delta Development Co., Inc., supra. The principles of equity and justice which form the mainstay of the doctrine, however, demand that under certain circumstances, prescription be suspended because plaintiff was effectually prevented from enforcing his rights for reasons external to his own will. Bouterie v. Crane, supra; see Plaquemines Parish Com'n Council v. Delta Development Co., Inc., supra; Corsey v. State, through Dept. of Corrections, 375 So.2d 1319 (La.1979).
Generally, the doctrine of contra non valentem suspends prescription where the circumstances of the case fall into one of the following four categories:
Rajnowski v. St. Patrick's Hospital, 564 So.2d 671, 674 (La.1990); Whitnell v. Menville, 540 So.2d 304 (La.1989); Plaquemines Parish Com'n Council v. Delta Development Co., Inc., supra; Corsey v. State, through Dept. of Corrections, 375 So.2d at 1321-1322; but see Bouterie v. Crane, supra [Bouterie's claim did not squarely fit into any of these 4 categories but was closely analogous to the second category; therefore, prescription was suspended.
The first two categories of the doctrine are not relevant to this case and, therefore, are not further discussed. The third and fourth categories are both relevant. The third category applies to cases where defendant engages in conduct which prevents the plaintiff from availing himself of his judicial remedies. Corsey v. State, through Dept. of Corrections, supra; Whitnell v. Menville, supra; Plaquemines Parish Com'n Council v. Delta Development Co., Inc., supra. The cause of action accrued, but plaintiff was prevented from enforcing it by some reason external to his own will. Corsey v. State, through Dept. of Corrections, supra. The fourth category, commonly known as the discovery rule, provides that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Griffin v. Kinberger, 507 So.2d 821 (La.1987); Lott v. Haley, 370 So.2d 521 (La.1979). Hence, prescription
The doctrine of contra non valentem distinguishes between personal disabilities of the plaintiff (which do not prevent prescription from running) and an inability to bring suit for some cause foreign to the person of the plaintiff (which suspends its running). Id. The equitable doctrine is, in part, but an application of the long-established principle of law that one should not be able to take advantage of one's own wrongful act. Nathan v. Carter, 372 So.2d 560 (La.1979).
Defendants claim the trial court correctly sustained their exception of prescription because Russell's alleged tortious conduct did not produce a mental and physical incapacity in Brandon rendering him unable to file suit. They suggest that, although Brandon may justifiably have felt fear and embarrassment over the alleged incidents, he retained sufficient mental and psychological capacity to inform others of the acts, citing as authority Laughlin v. Breaux, supra
Adults frequently have preconceived ideas about how a traumatized person will react after infliction of the trauma. See Elias, Hon. Harry M., Commentary: "Abuse of the Child Sexual Abuse Accommodation Syndrome," 1(4) Journal of Child Sexual Abuse 169, 170 (1992). The child victim of sexual abuse does not react to the situation according to adult concepts of self-determinism with autonomous, rational choices. Summit, Roland C., "The Child Sexual Abuse Accommodation Syndrome," 7 Child Abuse & Neglect 177, 179 (1983), hereafter Summit 1. In fact, their behavioral patterns vastly differ from adult expectations.
The behavioral dynamics of child sexual abuse victims was initially published in 1983 by Dr. Roland C. Summit in his paper, The Child Sexual Abuse Accommodation Syndrome. Summit 1, supra. The syndrome, known as CSAAS, does not describe symptoms or personality traits. Instead, it sets forth the dynamics of child sexual victimization to explain how children react differently to molestation than adults expect. See Summit, Roland C., "Abuse of the Child Sexual Abuse Accommodation Syndrome," 1(4) Journal of Child Sexual Abuse 153, 155 (1992), hereafter Summit 2.
CSAAS is a clinical opinion summarizing the behavioral patterns seen frequently by those who work with victims of child sexual abuse. See Summit 2, 1(4) Journal of Child Sexual Abuse at 156-157; Salter, Anna C., "Response to the `Abuse of the Child Sexual Abuse Accommodation Syndrome,'" 1(4) Journal of Child Sexual Abuse 173, 175 (1992). It "represents a common denominator of the most frequently observed victim behaviors." Summit 1, 7 Child Abuse & Neglect at 180. It is not diagnostic. Summit 2, 1(4) Journal of Child Sexual Abuse at 157; Elias, 1(4) Journal of Child Sexual Abuse at 169, 170; Meyers, Bays, Becker, Berliner, Corwin and Saywitz, "Expert Testimony on Child Sexual Abuse Litigation," 68 Neb.L.Rev. 1, 67 (1989). Thus, CSAAS does not prove a child has been abused. Its use is to educate adults about child victims as a class, describing the child's reality in order to prevent a secondary victimization of the child.
Summit indicates that the child victim has a "tendency to deal with the trauma as an intrapsychic event and to incorporate a monstrous apparition of guilt, self-blame, pain and rage." Summit 1, 7 Child Abuse & Neglect at 179. Studying large numbers of children in proven abuse cases, he found their actions contradicted traditional views. Id. He found certain behavioral patterns "of mutually dependent variables" which helped the child cope for the moment but tended "to isolate the child from eventual acceptance credibility or empathy within the larger [adult] society." Id. He asserts that awareness of these behavioral patterns provides "a counterprejudicial explanation to the otherwise self-camouflaging and self-stigmatizing behavior of the victim." Id.
CSAAS has five categories, into which an infinite number of behavioral variations can be subsumed. Summit 2, 1(4) Journal of
Concerning secrecy, Summit declares that "[s]ilence is intrinsic to the victimization process" in all types of child sexual abuse (incestuous, non-incestuous).
Summit indicated a vast majority of child sexual abuse victims were less than 8 years old at the time of the initial molestation. Id., at 178. Furthermore, he indicated young male victims are even more secretive than young female victims of child sexual abuse, as they are extremely reluctant to admit to the sexual victimization experience. Id., at 180.
Summit described the sexually abused child as being "most fearful, tentative and confused about the nature of the continuing sexual experience and the outcome of disclosure." Id., at 178. Thus, regarding disclosure, he found treated, reported and investigated cases the exception, not the norm. Id., at 186. This phenomenon runs afoul to the commonly held adult perception myth that the child victim of sexual abuse will immediately disclose the abuse.
The interdisciplinary group of authors of "Expert Testimony in Child Sexual Abuse Litigation"
Dr. Anna Salter, a Summit advocate, further rebuts the "immediate disclosure" myth contending "there is not a shred of positive evidence to suggest that the majority of sexually abused children disclose immediately after abuse, nor even that they disclose at all." Salter, Anna C., "Response to the `Abuse of the Child Sexual Abuse Accommodation Syndrome,'" 1(4) Journal of Child Sexual Abuse 173, 176 (1992). She documents
The validity of CSAAS was sanctioned by this court in State v. Foret, 628 So.2d 1116 (La.1993). Recognizing that CSAAS is not diagnostic and, therefore, not probative of abuse, this court held the CSAAS cannot be used in criminal actions to determine the credibility of the child victim witness' claim of abuse. 628 So.2d at 1130; see 628 So.2d at 1124. Nonetheless, this court determined CSAAS-based evidence should be admissible for the limited purpose of explaining, in general terms, certain reactions of a child to sexual abuse like delayed reporting and recantation, when the child victim/witness' credibility is attacked, i.e., using CSAAS evidence on rebuttal to rehabilitate the child victim's credibility when attacked for nonconformance to adult expectations on victimization and the reporting of the abuse. 628 So.2d at 1131. The circumstances of this case present an additional use of the CSAAS.
Cognizant of the CSAAS and educated by it, this court refuses to perpetuate the myths it debunks, or reward the molester by allowing him to profit by the normal behavioral reactions of his victim to the sexual abuse. The syndrome explains that due to self-blame, fear of blame, retaliation, et certa, the normal child victim of sexual abuse is likely to never disclose, not immediately disclose or partially disclose the extent or frequency of their involvement in the sexual abuse. Understanding that secrecy and that delayed, conflicted and unconvincing disclosure are the norm and that immediate disclosure is atypical, in civil actions, the child victim's delayed or partial disclosure will not be countenanced, in law or equity, to victimize the child a second time.
Although an unemancipated minor might have a right of action against a tortfeasor to
When molested by Keys, Brandon promptly informed his father because he feared for his safety. He apparently had not acquiesced to the sexual encounter with Keys and felt limited or no self-blame. In contrast, he remained typically silent about his participation in his protracted relationship with Russell which commenced in his bedroom when he was 6 or 7 years old. If he reacted to the situation like a normal sexually abused child, Brandon heaped upon himself "a monstrous apparition" of guilt and self-blame, and was very reluctant to admit to the victimization experience. Brandon said he remained silent because he feared Russell would say he liked it, and because of fear of parental condemnation. His impetus to confess was the fear that Mrs. Gatch had caught him in the act. It was inconsequential that Russell did not physically threaten or coerce Brandon's silence, or that Brandon realized (because some of the sexual acts occurred behind a closed door) the conduct was wrong. Brandon kept the liaison secret for three years because he is a normal child who reacted to the sexual abuse in a normal manner.
Brandon's mother, Rusty, stated that when Brandon began therapy, they attributed his fears and emotional damage to the Keys incident. They continued to place the fault on Keys for much of the year following Brandon's April 25, 1988 disclosure. It was not until they learned the true extent and pervasiveness of Brandon's relationship with Russell that they realized Russell was the root of Brandon's emotional damage. Apparently, it was only through long-term therapy, and after Russell moved out of the neighborhood (and/or was incarcerated), that Brandon's fear abated and he opened-up about the abuse.
Thus, for reasons external to their own will, the proper party plaintiffs did not discover Russell's intentionally tortious conduct. Due to two normal behavioral reactions of a sexually abused child to the sexual abuse, secrecy and delayed disclosure, Brandon's parents were effectually prevented from pursuing both his and their own claims for damages against defendants. The law does not impute Brandon's parents with the knowledge held by their sexually abused minor child. Public policy enjoins legal fictions like imputation of knowledge from operating to assist a child molester in escaping liability for his intentional wrongs. That mechanism was confected to achieve justice, not inhibit it. As their actual lack of knowledge and their failure to discover the abuse were both direct results of Russell's intentionally tortious conduct, a combination of the principles behind the third and fourth categories of contra non valentem, suspended prescription from running on their claims until Brandon disclosed the abusive acts.
In Corsey, supra, a case in which a prisoner at the state penitentiary was mentally incapacitated as a result of defendant's tortious conduct, this court found the third category of contra non valentem suspended the running of prescription. That case also presented the unusual situation where the same wrongdoing which gave rise to the cause of action made it impossible for the plaintiff to avail himself of his legal remedy, in contrast to the usual situation where the conduct of the defendant preventing plaintiff from filing suit is conduct separate from the wrongful conduct giving rise to the claim. Corsey v. State, through Dept. of Corrections, 375 So.2d at 1323-1324. In explanation of its decision to apply the third category of the doctrine of contra non valentem to Corsey's situation, this court quoted Justice Provosty in Hyman v. Hibernia Bank & Trust Co.,
Like the plaintiff in Corsey, Brandon's parents were unable to file suit due to the effects of defendant's tortious conduct. Brandon's reaction to the sexual abuse, his silence, accommodated Russell in the commission of the tort and in its tardy detection. An artifice for the child molester is the likelihood that his victim will not divulge the abuse, but will keep it secret. Whether or not Russell actually knew Brandon was not likely to tell, merely because that reaction is normal for a sexually abused child, the behavioral probability worked to his advantage. The behavioral dynamics of the victimization facilitated both the continuation of Russell's abusive acts and the unlikelihood of early detection. Hence, as in Corsey, equity demands the employment of the third category of contra non valentem to prevent defendants from profiting from their own wrong.
The liberative prescription provisions of our Civil Code are not meant to assist the intentional tortfeasor in escaping accountability for his wrongful actions. A direct result of Russell's intentionally tortious conduct prevented the proper party plaintiffs from discovering any of the facts upon which their causes of action are based until April 25, 1988. Prescription could not commence running until that date. The discovery rule of the fourth category of contra non valentem prevents prescription from running against one who is ignorant of the facts upon which his cause of action is based when there is a reasonable cause for the ignorance. Thus, a combination of the third and forth categories of the equitable doctrine suspended the running of prescription to prevent defendants from profiting from Russell's wrongful conduct.
Consequently, since suit was filed within one year of the discovery date of April 25, 1988, none of plaintiffs' claims prescribed.
At the trial level, defendants contended that the alleged acts of sexual molestation were separate acts and not a continuing tort. In support of their position they cited Laughlin v. Breaux, wherein the plaintiff allegedly had been beaten, raped and verbally abused on numerous occasions over a 2 to 3 year period by her ex-boyfriend.
Without delving into whether the circumstances of this action constitute a continuing tort, this court notes that, due to the peculiarities of the CSAAS, though a parent may have discovered the date the continuous sexual misconduct abated, the parent may not
For the reasons assigned, the judgment sustaining the exception of prescription as to all acts occurring more than a year prior to the filing date of the suit is vacated, and the case is remanded for further proceedings not inconsistent with the principles enunciated herein. Costs are assessed against defendant respondents.
REVERSED AND REMANDED.
WATSON, J., concurs believing this was a continuing tort under BUSTAMENTO.
LEMMON and KIMBALL, JJ., concur and assign reasons.
KIMBALL, Justice, concurring.
While I concur in the result reached by the majority, I disagree with that part of the majority opinion which, unnecessarily in my view, creates a new category of contra non valentem by utilizing a combination of the principles behind the third and fourth categories of that doctrine to hold that prescription has not accrued on plaintiffs' claims in this case. Given the extensive discussion of CSAAS contained in the majority opinion, I find it unnecessary to blur the heretofore distinct requirements of the third and fourth types of the doctrine to reach the correct result in this case. The dynamics of CSAAS, as set forth in Section IV of the majority opinion, provide an ample basis for holding that plaintiff Brandon Wimberly was effectually prevented by the acts of defendant Russell Gatch from availing himself of his cause of action.
LEMMON, Justice, concurring.
Under the discovery rule of the fourth category of the doctrine of contra non valentem, prescription is suspended when the cause of action is not known or reasonably knowable by the creditor, as long as the ignorance is not willful, negligent or unreasonable. Young v. Clement, 367 So.2d 828 (La.1979). And when the tort victim is a minor who cannot himself bring the action because of lack of procedural capacity, prescription only begins to accrue when the person in authority over the minor reasonably discovers the existence of the cause of action.
The critical issue in this case is the determination of when the cause of action was reasonably knowable or should reasonably have been discovered. In making this determination, courts have focused on the reasonableness of the creditor's (or the creditor's representative's) action or inaction under the particular circumstances. Jordan v. Employee Transfer Corp., 509 So.2d 420 (La. 1987); In re Medical Review Panel of Howard, 573 So.2d 472 (La.1991).
Here, when the minor's parents learned of an isolated instance of sex abuse by the scout leader, they reasonably placed him in weekly therapy sessions in October, 1987. Of course, this knowledge did not reveal a cause of action against Gatch.
The sexual abuse inflicted by Gatch on the minor during the weekend prior to April 25, 1988 prompted the minor to disclose to the therapist the prolonged history of such abuse, and the therapist immediately informed the minor's parents. It was at this point in time that prescription began to accrue because inaction by the parents in the light of these circumstances would have been unreasonable. The parents' filing suit within the year following April 25, 1988 interrupted prescription which had been suspended during the 1985-to-1988 period while the cause of action was not known or reasonably knowable by the minor's representatives. This interruption applied to all incidents alleged in this action, and the majority has properly overruled the exception of prescription.