The Oregon Supreme Court Thursday ruled unanimously that a child sexual abuse case against a local school district from the 1980's may proceed, overturning decisions by both a trial court and the Court of Appeals that the case was barred by the statute of limitations.

The decision is important for two reasons: first, because it recognizes the substantial lapse in time between when a child is molested and when--usually much later in life--the victim realizes that the touching was wrong and harmful; and second, because it applies this reasoning to a public agency, which has generally been considered to be protected from older claims, according to attorney Kelly Clark of Portland’s O’Donnell, Clark & Crew LLP, who brought and argued the case, and who has handled hundreds of child abuse cases against the Catholic Church, the Mormon Church, the Boy Scouts of America and other such youth organizations.  “We have been saying for years now that it is neither right nor just for governmental employee child abusers to get special protection under the law, and the Supreme Court has now gone a long ways toward remedying that injustice, ” said Clark.  “The acceptance by the Court that it can take decades for victims of child abuse to understand their injuries is heartening, but the real significance here is that the Court has allowed such a case to go forward against a public agency.”

The seven men who brought the claims under the Oregon Tort Claims Act alleged that in the 1980s they were molested by their fifth-grade teacher in the Lake Oswego School District, a man named Judd Johnson, who was later convicted of molesting other boys.  The case alleges that, because of the affection and respect that the students had for Johnson, and because he regularly engaged in non-offensive touching such as hugs, the boys did not understand at the time that the molestation was wrong, and did not recognize until they were well into adulthood that the abuse had caused them permanent psychological damage.  It was these allegations that the School District had targeted in motions to dismiss, arguing that no reasonable fifth-grader could have failed to realize injury at the instant they were touched—an argument accepted by the trial court and the Oregon Court of Appeals.  

Oregon law has a special statute of limitations for child abuse claims, allowing victims to bring claims up to age 40, or five years after they realize their abuse caused them injury, but that law does not apply to public bodies such as schools.  Under Oregon laws applicable to public bodies, the statute of limitations is normally two years. In this case, however, the plaintiffs argued—and the Supreme Court agreed—that because of the time lapse between the molestation and the later recognition of injury, the legal clock did not begin to run until the victims reasonably realized they had been injured.  The Court ruled that question—when a reasonable fifth-grader would have realized injury—was a question for a jury to decide.

Wrote Justice Martha Walters for the unanimous Court: “…Whether a plaintiff knew or should have known the elements of a legally cognizable claim, including the tortious nature of a defendant’s act is generally a question of fact [to be decided by a jury]….In applying that standard, a court must consider the facts from the perspective of a reasonable person in the circumstances of the plaintiff….Those circumstances include…plaintiff’s status as a minor, the relationship between the parties…and the nature of the harm suffered…. In this case, we are…unprepared to make the leap of faith for which defendant contends—that in 1984, all fifth-graders must be deemed to have known that a trusted teacher who had touched them in socially acceptable ways and whom they had been conditioned to respect and obey had crossed a line and touched them in a new way that society abhorred
The case had gathered national attention from child advocacy groups, and over a dozen such groups from all over the country filed amicus, or “friend of the court” briefs in support of the victims.

The case now returns to Clackamas County trial court for further proceedings, according to Clark, who said he would expect the matter to come to trial in the next 9-12 months.

News release: O’Donnell, Clark & Crew