The law is O.C.G.A. § 9-3-33.1, and the rules now depend on the date of the abuse. Abuse before July 1, 2015: by the survivor’s 23rd birthday. Abuse on or after July 1, 2015: by the 23rd birthday, or within two years of the date the survivor knew, or had reason to know, of the abuse.
Some of the people who read this post will be parents who have just learned what happened to their child. Others will be grown men and women who were hurt years ago and have never told anyone.
If that is you, I am glad you are reading. You do not have to decide anything today.
I first wrote about Georgia’s special filing deadline for victims of childhood sexual abuse in 2011. The law has changed since then. When I wrote about the minor tolling statute last month, I set this subject aside because it has its own statute. This post is about that statute.
The deadline depends on when the abuse happened
Abuse before July 1, 2015: the lawsuit must be filed by the survivor’s 23rd birthday. Abuse on or after July 1, 2015: by the 23rd birthday, or within two years under the discovery rule.
The law is O.C.G.A. § 9-3-33.1. In 2015 the legislature passed what is known as the Hidden Predator Act, and the rules now depend on the date of the abuse.
Abuse before July 1, 2015. The lawsuit must be filed by the survivor’s 23rd birthday.
Abuse on or after July 1, 2015. The survivor has two possible deadlines:
- by the 23rd birthday; or
- within two years of the date the survivor knew, or had reason to know, of the abuse and that it caused the survivor’s injury, as shown by competent medical or psychological evidence.
That second path is often called the discovery rule. It exists because so many survivors do not connect what happened to them with the depression, the addiction, or the broken relationships until years later.
Do not count on it without advice. The “had reason to know” language gives a defendant something to argue about, and it requires evidence. If a suit is filed after age 23 under this path, the court must make a finding before trial about when the abuse was discovered.
The Act also opened a two-year window for older claims against the abusers themselves. That window ran from July 1, 2015 to July 1, 2017. It is closed.
Abusers and institutions are not treated the same
If the suit is filed by the 23rd birthday, the survivor must show the entity was negligent. If filed later under the discovery rule, the survivor must show the entity was grossly negligent, knew or should have known, and failed to take remedial action.
Predators rarely act alone in the sense that matters most. Someone hired them. Someone gave them keys, a whistle, a van, or a collar. Someone got a complaint and put it in a file. I wrote about this when the Penn State scandal broke. Institutions do a bad job of policing themselves.
Section 9-3-33.1 has a separate rule for claims against an entity, when the abuser was its employee or volunteer or when the abuse happened during an activity it controlled.
If the suit is filed by the 23rd birthday, the survivor must show the entity was negligent.
If the suit is filed later under the discovery rule, the survivor must show the entity was grossly negligent, that it knew or should have known of the conduct, and that it failed to take remedial action.
Read those two together. The longer it took a child to find the words, the harder Georgia makes it to hold the church, the school, or the team accountable. I think that is backward. The same silence that the institution benefited from is what raises the bar. I would like to see the legislature fix it.
The practical lesson is this. For a claim against an institution, the 23rd birthday matters a great deal, even when the discovery rule is available. If you are 21 or 22 and you are reading this, please do not wait.
A public institution raises other problems. Public school officials have immunity that stops most claims cold, and notices to a city, a county, or the State can be due within months. I explained how different it is at a private school.
Parents have a claim and a clock of their own
The money for counseling, for hospital stays, and for other medical costs while your child is a minor is usually your claim. Treat it as running on the ordinary clock: two years.
If you are the parent of a child who was abused, your claim and your child’s claim are not the same.
The money for counseling, for hospital stays, and for other medical costs while your child is a minor is usually your claim. Treat it as running on the ordinary clock: two years. A deadline written for the survivor should not be assumed to protect you.
Those costs can run for many years. A child’s need for counseling may not show up until adolescence, and the parents’ claim may be long gone by then. That is one more reason to get advice early, even if your family is not ready to file.
A criminal case and a civil case are different things
Please report first. Your child’s safety, and the safety of other children, comes before any lawsuit. A civil case can reach the people and institutions who let it happen, and it can pay for the care your child will need.
Parents often ask me whether they should wait for the police. Please report first. Report to law enforcement and to the Division of Family and Children Services. Your child’s safety, and the safety of other children, comes before any lawsuit.
But the two systems do different jobs. A prosecutor represents the State and has to prove the crime beyond a reasonable doubt. A prosecutor may decide not to bring charges for many reasons, and that does not mean your child was not believed. A civil case is brought by the survivor, the standard of proof is lower, and it can reach the people and institutions who let it happen. It can also pay for the care your child will need.
Georgia also has a statute, O.C.G.A. § 9-3-99, that can pause the time to sue for a victim of a crime while the prosecution is pending, for up to six years. Do not build your plan around it without talking to a lawyer.
If your child has just told you
Believe your child. Get your child away from the person, and report it. Save everything. Do not sign anything from the institution’s lawyer or insurance company before you get advice.
- Believe your child. Stay calm in front of your child. You can fall apart later, and you may need to.
- Do not question your child in detail. Children can be interviewed by people trained to do it, and doing it well protects both your child and the case.
- Get your child away from the person, and report it.
- Get your child to a doctor and a counselor who treat children who have been abused.
- Save everything. Text messages, social media, photographs, gifts, school records, and schedules. Do not confront the person and do not delete anything.
- Write down what your child said, in your child’s words, along with the date and time.
- Do not talk to the institution’s lawyer or insurance company, and do not sign anything from them, before you get advice.
If you are an adult survivor
Find out which deadline applies to you before you assume it has passed. The date of the abuse, your age, and what you learned and when all matter.
- It was not your fault, whatever you were told and however long ago it was.
- Find out which deadline applies to you before you assume it has passed. The date of the abuse, your age, and what you learned and when all matter.
- Write down the dates you remember, and the names of anyone you told. Those details may help a lawyer work out your deadline.
- A counselor’s or doctor’s records may matter to the discovery rule. Your care comes first, but keep track of who you have seen.
- If your time has run, call anyway. The person who hurt you may still be near children, and law enforcement may want to know. And a lawyer can tell you for certain.
Everything you tell me stays between us. You will not have to tell your story to anyone but me, and you do not have to file anything because you called.
A lawsuit cannot give back what was taken. It can pay for care, it can tell the truth out loud, and it can make an institution afraid to do this again. When you are ready, I would be honored to listen.
Attorney Pete Pearson has practiced personal injury law in Georgia since 1996. He has a special interest in helping families of injured children. He is a father of ten and lives with his wife and children in Newborn, Georgia.
If you need to talk, my direct line is Six-Seven-Eight 358-2564, or email pete@petepearsonlaw.com.