CHILD SEX ABUSE SOLs
CURRENT CIVIL SOL
In West Virginia, the civil SOL for claims against all defendants is age thirty-six with a four-year discovery rule and a revival law, reviving claims up to age thirty-six.
CIVIL SOL SNAPSHOT
|REVIVAL UP TO AGE 36|
Liability Limitations: In general, West Virginia may be held liable for CSA claims based on negligence.[i] A minor under the age of ten may bring a notice of claim within two years after the injury occurred, was discovered, or prior to their twelfth birthday.[ii] West Virginia cannot be held liable for punitive damages, and all noneconomic damages to a single person may not exceed $500,000.[iii] Charitable immunity was abolished in 1965.[iv]
Other Tolling Theories/Causes of Action: West Virginia recognizes an SOL may be tolled by a defendant’s fraudulent concealment of a cause of action, but such tolling does not appear to have been asserted in reported CSA cases.[v] West Virginia also recognizes a conspiracy doctrine that has been applied by courts to impose institutional liability for plaintiffs’ claims arising from CSA.[vi]
Civil SOL History
Age 20 (age of majority, 18, plus 2 years).[vii]
Extended against perpetrators of the abuse to age 22 (age of majority, 18, plus 4).[viii]
Extended against all types of defendants to age 36 (age of majority, 18, plus 18 years).[ix]
Revived claims up to age 36 against all types of defendants.[x]
West Virginia has a judicially crafted discovery rule of 2 years, tolling accrual until “the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.”[xi] The common law discovery rule applies to perpetrators, non-perpetrators, and the government, and it is triggered when the victim discovers their abuse.[xii] Some courts have applied a 20-year from injury statutory cap to limit the common law discovery rule, while others have not.[xiii]
In 2016, the State added a statutory discovery rule that applied only to claims against perpetrators, which accrued 4 years from discovery of the claim and removed the upper limit.[xiv] In 2020, West Virginia added a revival law and made its statutory 4-year discovery rule fully retroactive for claims against perpetrators.[xv]
[i] See W. Va. Code Ann. § 29-12A-5; Zirkle v. Elkins Road Pub. Serv. Dist., 655 S.E.2d 155, 160 (W. Va. 2007) (concluding that the state is immune from claims of intentional acts but may be held liable for negligence).
[ii] W. Va. Code Ann. § 29-12A-6(a). But see Whitlow v. Board of Educ. Kanawha Cnty., 438 S.E.2d 15 (W. Va. 1993) (finding that section 29-12A-6 “violates the Equal Protection Clause found in . . . the West Virginia Constitution to the extent that it denies to minors the benefit of the SOLs provided in the general tolling statute, W. Va. Code 55-2-15.”).
[iii] W. Va. Code Ann. § 29-12A-7(a)–(b). See Arbaugh v. Board of Educ., Cnty. of Pendleton, 329 F.Supp.2d 762 (N.D. W. Va. 2004) (holding that grade school principal was not subject to punitive damages for failure to prevent teacher from sexually abusing his students, where principal acted at all relevant times within the scope of his employment).
[iv] Adkins v. St. Francis Hosp., 143 S.E.2d 154 (W. Va. 1965).
[v] Trafalgar House Const., Inc. v. ZMM, Inc., 567 S.E.2d 294, 300 (W. Va. 2002); E.K. v. W.V. Dept. of Health, No. 16-0773, 2017 WL 5153221, at *6 (W. Va. Nov. 7, 2017) (tolling the SOL because “fraudulently concealed facts . . . prevented [him] from discovering or pursuing the potential cause of action”) (citing Dunn v. Rockwell, 689 S.E.2d 255, 258 (W. Va. 2009)).
[vi] Jane Doe-1 v. Corporation of President of The Church of Jesus Christ of Latter-day Saints, 801 S.E.2d 443, 473 (W. Va. 2017) (finding that plaintiffs alleged a conspiracy to commit intentional torts and to accomplish the unlawful purpose of concealing and harboring a “sex offender” that resulted in harm to them. Thus, a jury could conclude that the defendants’ conduct “in ignoring, minimizing, trivializing and denying the abuse; actively concealing and keeping silent about the abuse; promoting and misrepresenting [the perpetrator] as an exemplary and trustworthy member of the Church; promoting and misrepresenting him as fit to babysit for or live in a house with young children; and facilitating the abuse by engaging in the foregoing and placing him in homes with young children as a babysitter or boarder, were taken in furtherance of the conspiracy’s unlawful purposes.”).
[vii] W. Va. Code Ann. §§ 55-2-12 (2002) (general SOL), 2-3-1 (2002) (tolling provision), and 55-2-15 (2002) (majority tolling).
[viii] W. Va. Code Ann. § 55-2-15 (a) (2016) (CSA SOL).
[ix] W. Va. Code Ann. § 55-2-15(a) (2020) (CSA SOL).
[x] W. Va. Code Ann. § 55-2-15(a) (2020) (age thirty-six revival); 2020 W. Va. Acts Ch. 2 (H.B. 4559).
[xi] Merrill v. West Virginia Dep’t of Health & Human Res., 632 S.E.2d 307, 312 (W. Va. 2006) (quoting Gaither v. City Hosp., Inc., 487 S.E.2d. 901, 903 (W. Va. 1997)). See W. Va. Code Ann. § 55-2-21(d).
[xii] E.K. v. W.V. Dept. of Health, supra note 965, at *6 (citing Dunn, supra note 965).
[xiii] See Merrill, supra note 971, at 312; Albright v. White, 503 S.E.2d 860, 870 (W. Va. 1998); Miller v. Monongalia Cnt.y Bd. of Educ., 556 S.E.2d 427, 432 (W. Va. 2001), overruled on other grounds by Dunn, supra note 965.
[xiv] W. Va. Code Ann. § 55-2-15 (2016).
[xv] W. Va. Code Ann. § 55-2-15 (2020).
CURRENT WEST VIRGINIA CIVIL LAW
W. Va. Code Ann. §§ 55-2-15 - Special and general savings as to persons under disability
(a) A personal action for damages resulting from sexual assault or sexual abuse of a person who was an infant at the time of the act or acts alleged, shall be brought against the perpetrator of the sexual assault or sexual abuse, within 18 years after reaching the age of majority, or within four years after discovery of the sexual assault or sexual abuse, whichever is longer. A personal action for damages resulting from sexual assault or sexual abuse of a person who was an infant at the time of the act or acts alleged shall be brought against a person or entity which aided, abetted, or concealed the sexual assault or sexual abuse within 18 years after reaching the age of majority.
(b) If any person to whom the right accrues to bring any personal action other than an action described in subsection (a) of this section, suit, or scire facias, or any bill to repeal a grant, shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his or her becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in § 55-2-8 of this this code, except that it shall in no case be brought after 20 years from the time when the right accrues.
(c) The amendments to this section enacted during the 2020 Regular Session of the Legislature are intended to extend the statute of limitations for all actions whether or not an earlier established period of limitation has expired.
W. Va. Code Ann. § 55-2-12 - Personal actions not otherwise provided for
Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.
W. Va. Code Ann. § 55-2-21 - Statutes of limitation tolled on claims assertible in civil actions when actions commence
(a) After a civil action is commenced, the running of any statute of limitation is tolled for, and only for, the pendency of that civil action as to any claim that has been or may be asserted in the civil action by counterclaim, whether compulsory or permissive, or cross-claim : Provided, That if a permissive counterclaim would be barred but for the provisions of this section, the permissive counterclaim may be asserted only in the action tolling the statute of limitations under this section. This section shall be deemed to toll the running of any statute of limitation with respect to any claim for which the statute of limitation has not expired on the effective date of this section, but only for so long as the action tolling the statute of limitations is pending.
(b) Any defendant who desires to file a third-party complaint shall have one hundred eighty days from the date of service of process of the original complaint, or the time remaining on the applicable statute of limitations, whichever is longer, to bring any third-party complaint against any non-party person or entity: Provided, That any new party brought into litigation by a third-party complaint shall be afforded, from the date of service of process of the third-party complaint, an additional 180-day period, or the remaining statute of limitations period, whichever is longer, to file any third-party complaint of its own, and any applicable statute of limitation shall be tolled during this time period.
(c) For purposes of this section, the term “third-party complaint” means a claim brought by a defendant against any person or entity that was not originally a party to the underlying civil action, where the new claim is made a part of the underlying civil action.
(d) This section tolls the running of any statute of limitation with respect to any claim for which the statute of limitation has not expired on the effective date of this section, but only for so long as the action tolling the statute of limitations is pending. This section does not limit the ability of a court to use the doctrine of equitable tolling or the discovery rule to toll the statute of limitations in any action, including any third-party complaint that would otherwise be subject to subsection (b) of this section.
W. Va. Code Ann. § 2-3-1 - Legal capacity; saving provisions
On and after June nine, one thousand nine hundred seventy-two, except as otherwise specifically provided in this code, no person who is eighteen years of age or older shall lack legal capacity, by reason of his age, to enter into contracts, sell or purchase real or personal property, create a lien, execute any legal or other written instrument, prosecute or defend legal actions, assert claims or deal in his own affairs in any manner whatsoever.
The provisions of this section, and the provisions of chapter sixty-one, acts of the Legislature, regular session, one thousand nine hundred seventy-two, reducing various prescribed age requirements to eighteen years of age, shall not, however, by operation of law affect any rights, duties, obligations or interests accruing or vesting by virtue of any statute, act, event, transaction, order, judgment or decree prior to June nine, one thousand nine hundred seventy-two, or any cause of action which arose or any civil action or claim instituted or asserted prior to such date, and any such right, duty, obligation, interest, cause of action, civil action or claim may be enforced, exercised, enjoyed, terminated, discharged, consummated, prosecuted, maintained or asserted with like effect as if said chapter sixty-one had not been enacted: Provided, That any person who has attained the age of eighteen years shall have full power and authority to exercise any and all of the rights, privileges and powers granted to him in the first paragraph of this section with respect to any legal or equitable interest acquired by or which vested in such person before he became eighteen years of age: Provided, however, That under no circumstances whatever shall any of the changes made by said chapter sixty-one have any effect upon any of the terms or provisions of or any conditions imposed by any last will and testament, trust agreement or any other written instrument of any kind or character executed prior to such date of June nine, one thousand nine hundred seventy-two: Provided further, That any order or mandate providing for payment of child support for any person up to the age of twenty-one years contained in any decree or order of divorce or separate maintenance or in any order in any nonsupport or bastardy proceeding, which decree or order was entered prior to June nine, one thousand nine hundred seventy-two, may by order of the court be terminated as to such person upon such person attaining the age of eighteen years. Moreover, the provisions of this section shall not affect any acts performed or transactions entered into by a person under the age of twenty-one years prior to June nine, one thousand nine hundred seventy-two. No change in the general age of legal capacity or in the definitions of the words “under disability,” “infant” or “minor” contained in section ten, article two of this chapter shall alter any statute of limitations as to causes of action arising before such date of June nine, one thousand nine hundred seventy-two.
Wilmink v. Kanawha Cty. Bd. of Educ., 214 F.App’x 294, 296 (4th Cir. 2007)
Dunn v. Rockwell, 689 S.E.2d 255, 264 (W. Va. 2009): Application of discovery rule does not require a showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury
Merrill v. W. Virginia Dep’t of Health & Human Res., 632 S.E.2d 307 (W. Va. 2006) and Miller v. Monongalia County Bd. of Educ., 219 W.Va. 151 (W. Va. 2009). Some West Virginia courts have applied this 20-year from injury cap to limit the discovery rule, while others have not.
CURRENT CRIMINAL SOL
In West Virginia, there is no criminal SOL for any felonies, including CSA and trafficking, and the SOL for misdemeanors is one year from the offense.
CRIMINAL SOL SNAPSHOT
|NO SOL||State v. King, 140 W. Va. 362, 367 (W. Va. 1954)|
|1 YEAR AFTER OFFENSE||W. Va. Code Ann. § 61-11-9|
Tolling: If an indictment is lost, stolen, or destroyed, the SOL is tolled until the processing of a second indictment.[i]
Criminal SOL History
No SOL for any felonies, including CSA and trafficking and the SOL for misdemeanors is 1 year from the offense.[ii]
[i] W. Va. Code Ann. § 61-11-9.
[ii] State v. King, 84 S.E.2d 313, 316 (W. Va. 1954) (noting “the felony charged in the indictment is subject to no limitation.”); W. Va. Code Ann. §§ 61-11-9 (1954) (SOL); 61-8D-3(d) (1954) (CSA).
CURRENT WEST VIRGINIA CRIMINAL LAW
W. Va. Code Ann. § 61-11-9 - Limitation of prosecution; lost indictment
A prosecution for committing or procuring another person to commit perjury shall be commenced within three years next after the perjury was committed. A prosecution for a misdemeanor shall be commenced within one year after the offense was committed: Provided, That whenever the indictment in any case shall be stolen, lost or destroyed, a new indictment may be found for the same offense mentioned in the former indictment, at the first term of the court after such theft, loss or destruction is discovered, or at the next term thereafter, and as often as any such new indictment is stolen, lost or destroyed, another indictment for the same offense may be found at the first term of the court after such theft, loss or destruction is discovered, or at the next term thereafter; and the court shall, in every case where any such indictment has been stolen, lost or destroyed, enter such fact on its record. Whenever such new indictment is found, the clerk shall add to the entry of the finding thereof the following: “This is the second (or third, etc., as the case may be) indictment found against the said ………. for the same offense”; and the same proceedings shall be had in all respects on any such new indictment as might have been had on the first indictment if it had not been stolen, lost or destroyed. And if the offense mentioned in any such indictment is barred by the statute of limitations, the time between the finding of the first and last of such indictments shall not be computed or taken into consideration in the computation of the time in which any such indictment, after the first, should have been found.
State v. King, 140 W. Va. 362, 367, 84 S.E.2d 313, 316 (W. Va. 1954) (“The felony charged in the indictment is subject to no limitation”).
The information provided is solely for informational purposes and is not legal advice. To determine the West Virginia SOL in a particular case, contact a lawyer in the state.
Last Updated: April 21, 2021