Pratte v. Stewart , 125 Ohio St. 3d 473 ( 2010 )

[Cite as Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860.]
PRATTE, APPELLANT, v. STEWART, APPELLEE.
[Cite as Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860.]
Statute of limitations — Childhood sexual abuse — R.C. 2305.111(C) —
Retroactivity — Discovery rule inapplicable.
(No. 2009-0953 — Submitted February 16, 2010 — Decided May 5, 2010.)
APPEAL from the Court of Appeals for Greene County, No. 08-CA-95,
2009-Ohio-1768.
__________________
SYLLABUS OF THE COURT
1. The 12-year statute of limitations in R.C. 2305.111(C) applies to a civil action
arising from childhood sexual abuse that occurred prior to the effective
date of that subsection, August 3, 2006, if no prior claim has been filed
and if the former limitations period had not expired before the effective
date of that subsection.
2. Pursuant to R.C. 2305.111(C), a cause of action brought by a victim of
childhood sexual abuse accrues upon the date on which the victim reaches
the age of majority.
3. R.C. 2305.111(C) does not contain a tolling provision for repressed memories
of childhood sexual abuse. The discovery rule does not apply to toll the
statute of limitations while a victim of childhood sexual abuse represses
memories of that abuse. (Ault v. Jasko (1994), 70 Ohio St.3d 114, 637
N.E.2d 870, paragraph one of the syllabus, abrogated by statute.)
__________________
O’CONNOR, J.
{¶ 1} This appeal requires a determination of the appropriate statute of
limitations for a claim resulting from childhood sexual abuse in which the
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claimant alleges that memories of the abuse were repressed. Appellant, Amy
Pratte, asserts that the 12-year statute of limitations in R.C. 2305.111(C), which
became effective on August 3, 2006, cannot be applied retroactively to her claim
that she suffered childhood sexual abuse, because her memory of the abuse was
repressed until after the limitations period expired. Pratte argues that pursuant to
this court’s decision in Ault v. Jasko (1994), 70 Ohio St.3d 114, 637 N.E.2d 870,
the statute of limitations for a claim resulting from childhood sexual abuse does
not accrue until the victim recalls or otherwise discovers that she was sexually
abused. Pratte therefore contends that repressed memory continues as a tolling
mechanism after the enactment of R.C. 2305.111(C).
{¶ 2} Conversely, appellee, Rodney Stewart, contends that R.C.
2305.111(C) unambiguously applies retroactively to Pratte’s claim and that the
statute does not contain a tolling provision for repressed memories of childhood
sexual abuse. Stewart therefore maintains that Pratte’s claim, which was filed
beyond the 12-year limitations period in R.C. 2305.111(C), is time-barred.
{¶ 3} We hold that the 12-year statute of limitations in R.C. 2305.111(C)
applies to all civil actions arising from childhood sexual abuse that occurred prior
to the effective date of the enactment of that subsection, August 3, 2006, if no
prior claim has been filed and if the former limitations period had not expired
before the effective date of that subsection. We further hold that pursuant to R.C.
2305.111(C), a cause of action brought by a victim of childhood sexual abuse
asserting any claim resulting from childhood sexual abuse accrues upon the date
on which the victim reaches the age of majority. R.C. 2305.111(C) does not
contain a tolling provision for repressed memories of childhood sexual abuse.
The discovery rule does not apply to toll the statute of limitations while a victim
of childhood sexual abuse represses memories of that abuse. (Ault v. Jasko
(1994), 70 Ohio St.3d 114, 637 N.E.2d 870, paragraph one of the syllabus,
abrogated by statute.)
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{¶ 4} We therefore affirm the judgment of the court of appeals.
Relevant Background
{¶ 5} On April 14, 2008, Pratte filed a lawsuit against Stewart alleging
that he sexually assaulted her on three occasions when she was a child, the most
recent occasion happening in the fall of 1984. Pratte was 33 years old at the time
she filed the lawsuit. She alleged that she had repressed memories of the sexual
abuse until April 20, 2007, when a news event triggered the recovery of the
memories.
{¶ 6} Stewart moved to dismiss Pratte’s complaint pursuant to Civ.R.
12(B)(6) for failure to state a claim upon which relief can be granted. More
specifically, Stewart argued that Pratte’s complaint was time-barred by R.C.
2305.111(C), which requires that a claim of childhood sexual abuse be brought
within 12 years after the cause of action accrues. Stewart relied upon the statute’s
specification that a cause of action for childhood sexual abuse accrues when the
alleged victim attains the age of majority. Because Pratte reached the age of
majority on July 13, 1992, Stewart argued that her claim must have been filed by
July 13, 2004, and was untimely because it was not filed until April 14, 2008.
{¶ 7} Pratte countered that this court’s holding in Ault v. Jasko, 70 Ohio
St.3d 114, 637 N.E.2d 870—that the discovery rule applies to toll the statute of
limitations while a victim of childhood sexual abuse represses memories of that
abuse—remains viable despite the enactment of R.C. 2305.111(C). Because her
memories of the alleged abuse were repressed until April 20, 2007, Pratte
maintained that her claims were timely filed within one year of her recovery of
the memories.
{¶ 8} The trial court granted Stewart’s motion to dismiss, finding that the
legislative intent in granting a minor 12 years after reaching majority in which to
bring an action for childhood sexual abuse was to permit the minor a period of
time to recall repressed memories. The trial court therefore rejected Pratte’s
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arguments and held that her claim was filed beyond the time permitted by R.C.
2305.111(C).
{¶ 9} On Pratte’s appeal to the Second District Court of Appeals, the
court affirmed the trial court’s judgment. The Second District found that “the
legislature by enacting R.C. 2305.10(G) states that the twelve-year limitation
period applies regardless of the previous rule of law established in Ault.” 2009-
Ohio-1768, at ¶ 17. The court of appeals further concluded that the legislature
intended to apply R.C. 2305.111(C) retroactively. Id.{¶ 10} The case is now before us on our acceptance of a discretionary
appeal. 122 Ohio St.3d 1502, 2009-Ohio-4233, 912 N.E.2d 107. Pratte asserts
four propositions of law for our consideration:
{¶ 11} (1) “R.C. 2305.111(C) does not apply retroactively to deprive a
repressed memory childhood sexual abuse victim of her cause of action.”
{¶ 12} (2) “Repressed memory as a tolling mechanism of the civil statute
of limitations remains viable after the effective date of R.C. 2305.111(C).”
{¶ 13} (3) “The statute of limitations period for sexual abuse in Ohio
begins to run when the victim recalls or otherwise discovers that he or she was
sexually abused, or when through the exercise of ordinary diligence, the victim
should have discovered the abuse.”
{¶ 14} (4) “The statute of limitations is tolled where a victim of childhood
sexual abuse represses memories of that abuse until a later time.”
Analysis
A. History of the Statute of Limitations for Claims of Childhood Sexual
Abuse
{¶ 15} A discussion of the history of the limitations period applicable to
claims of childhood sexual abuse is useful to our resolution of Pratte’s appeal.
{¶ 16} Prior to the enactment of the statute at issue, the General Assembly
had not enacted a limitations period specifically for claims of childhood sexual
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abuse. In Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 629
N.E.2d 402, this court was asked to determine what statute of limitations applied
to such actions. We concluded that a cause of action premised upon acts of sexual
abuse was subject to the one-year statute of limitations for assault and battery in
former R.C. 2305.111. Id. at paragraph one of the syllabus.
{¶ 17} Having determined the relevant limitations period, we went on to
address when a claim for childhood sexual abuse accrues. The defendants in Doe
argued that such a claim accrued on the victim’s 18th birthday, while the plaintiff
sought application of the discovery rule. This court found that the facts of the
case before it did not require us to consider whether to apply the discovery rule to
toll the limitations period in cases involving childhood sexual abuse. Id. at 541.
The court ultimately held, “A minor who is the victim of sexual abuse has one
year from the date he or she reaches the age of majority to assert any claims
against the perpetrator arising from the sexual abuse where the victim knows the
identity of the perpetrator and is fully aware of the fact that a battery has
occurred.” Id. at paragraph two of the syllabus.
{¶ 18} In Ault v. Jasko, however, we were presented with facts requiring
us to determine whether to apply the discovery rule in cases alleging childhood
sexual abuse. The plaintiff, Kathy Ault, filed a complaint when she was 29 years
old, alleging that she had been sexually abused as a child by her father. Ault v.
Jasko, 70 Ohio St.3d at 114, 637 N.E.2d 870. Her father moved to dismiss the
complaint on the basis of the statute of limitations. Ault responded that her cause
of action did not accrue until she was able to verify that she had been sexually
abused and that her father was responsible for that abuse.
{¶ 19} This court held: “The discovery rule applies in Ohio to toll the
statute of limitations where a victim of childhood sexual abuse represses
memories of that abuse until a later time.” Id. at paragraph one of the syllabus.
Thus, this court held: “The one-year statute of limitations period for sexual abuse
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in Ohio begins to run when the victim recalls or otherwise discovers that he or she
was sexually abused, or when, through the exercise of reasonable diligence, the
victim should have discovered the sexual abuse.” Id. at paragraph two of the
syllabus.
{¶ 20} Both Chief Justice Moyer and Justice Wright dissented from the
majority’s creation of “a rule of law that would permit a person at any age after
any lapse of time between the alleged sexual abuse and the revived memory of
such abuse to sue the alleged abuser for money damages.” Id. at 120. Chief
Justice Moyer emphasized that “[i]f that is to be the law of Ohio, it is the General
Assembly that should declare it as such rather than this court.” Id. Chief Justice
Moyer further explained:
{¶ 21} “The proper forum to determine such issues is in the General
Assembly where all views, all relevant information, all scientific data, and all
empirical studies can be presented, reviewed and debated by those who have an
interest in the issue. That process did not occur, nor could it have occurred, in the
case before us.
{¶ 22} “There probably will be a day, as there has been regarding the
forensic use of DNA, when courts can be given reliable, competent information
on the issue of repressed memory. That day is not here. We should dispose of
this case with a strong dose of judicial restraint. Until the General Assembly acts
on the issue, we should apply our holding in Doe v. First United Methodist
Church (1994), 68 Ohio St.3d 531, 629 N.E.2d 402, and hold that Kathy Ault’s
cause of action for assault and battery against John Jasko should have been filed
within one year after the date of her eighteenth birthday.” Id.{¶ 23} Justice Resnick concurred in the majority’s decision in Ault but
agreed with the dissenters’ view that the General Assembly is the most
appropriate body to establish a discovery rule for cases of childhood sexual abuse.
Id. at 119, 637 N.E.2d 870. However, Justice Resnick believed that until the
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General Assembly chose to act, this court could interpret the relevant statute of
limitations to allow potentially valid claims to proceed. Id.{¶ 24} This court next examined the availability of the discovery rule in
cases of childhood sexual abuse in Doe v. Archdiocese of Cincinnati, 109 Ohio
St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268. We followed our holding in Doe v.
First United Methodist Church and declined to apply the discovery rule to toll the
statute of limitations in a case of childhood sexual abuse against the employer of
an alleged perpetrator when the victim knew the identity of the perpetrator and the
employer of the perpetrator and knew that a battery had occurred. Id. at syllabus.
The majority found the Ault ruling to be inapplicable because Doe had not alleged
that he had repressed his memory of the alleged abuse. Id. at ¶ 25. However, we
stressed that the remedy sought by Doe required a legislative response to create an
exception to our long-standing statutes of limitations and endorsed Chief Justice
Moyer’s dissent in Ault. Id. at ¶ 51.
{¶ 25} Shortly before the decision in Doe v. Archdiocese of Cincinnati
was released, on March 29, 2006, the General Assembly enacted a statute of
limitations expressly for causes of action resulting from childhood sexual abuse,
in 2006 Am.Sub.S.B. No. 17. S.B. 17 became effective on August 3, 2006, and
amended former R.C. 2305.111 to create a 12-year statute of limitations for
actions for childhood sexual abuse. It is the construction and applicability of R.C.
2305.111, and the viability of the discovery rule adopted in Ault, that we must
consider today.
B. Retroactive Application of R.C. 2305.111(C)
{¶ 26} In her first proposition of law, Pratte challenges the retroactive
application of R.C. 2305.111(C) to her claim against Stewart. Pratte argues that
this court must presume that the legislature did not intend to apply the 12-year
statute of limitations to repressed-memory victims who do not recover their
memories before the age of 30 years. Otherwise, Pratte contends, the statute runs
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afoul of her constitutional guarantee to a remedy and open courts in Section 16,
Article I of the Ohio Constitution.
1. Retroactivity
{¶ 27} Although neither party nor the lower courts address retroactivity
correctly, the proper analysis for determining whether a statute can be applied
retroactively is summarized in State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-
4163, 871 N.E.2d 1167:
{¶ 28} “It is well-settled law that statutes are presumed to apply
prospectively unless expressly declared to be retroactive. R.C. 1.48; Van Fossen
v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 105, 522 N.E.2d 489. It is
also settled that the General Assembly does not possess an absolute right to adopt
retroactive statutes. Section 28, Article II of the Ohio Constitution prohibits the
retroactive impairment of vested substantive rights. See State v. LaSalle, 96 Ohio
St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, ¶ 13. However, the General
Assembly may make retroactive any legislation that is merely remedial in nature.
See State ex rel. Slaughter v. Indus. Comm. (1937), 132 Ohio St. 537, 542, 8 O.O.
531, 9 N.E.2d 505.” (Plurality opinion.) Id. at ¶ 9.
{¶ 29} With these principles in mind, this court reiterated its two-part test
for evaluating whether a statute may be applied retroactively:
{¶ 30} “First, the reviewing court must determine as a threshold matter
whether the statute is expressly made retroactive. LaSalle, 96 Ohio St.3d at 181,
772 N.E.2d 1172, citing Van Fossen,36 Ohio St.3d 100, 522 N.E.2d 489, at
paragraphs one and two of the syllabus. The General Assembly’s failure to
clearly enunciate retroactivity ends the analysis, and the relevant statute may be
applied only prospectively. Id. If a statute is clearly retroactive, though, the
reviewing court must then determine whether it is substantive or remedial in
nature. LaSalle at 181, 772 N.E.2d 1172.” Id. at ¶ 10.
2. Express Designation of Retroactivity
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{¶ 31} We begin our analysis by ascertaining whether the General
Assembly expressly made the 12-year statute of limitations in R.C. 2305.111(C)
retroactive. As part of S.B. 17, the General Assembly enacted R.C. 2305.10(E),
which states, “An action brought by a victim of childhood sexual abuse asserting
any claim resulting from childhood sexual abuse, as defined in section 2305.111
of the Revised Code, shall be brought as provided in division (C) of that section.”
{¶ 32} Uncodified Section 3(B) of S.B. 17 states:
{¶ 33} “The amendments to section 2305.111 of the Revised Code made
in this act shall apply * * * to all civil actions brought by a victim of childhood
sexual abuse for a claim resulting from childhood sexual abuse that occurs on or
after the effective date of this act * * * and to all civil actions brought by a victim
of childhood sexual abuse for a claim resulting from childhood sexual abuse that
occurred prior to the effective date of this act in relation to which a civil action for
that claim has never been filed and for which the period of limitations applicable
to such a civil action prior to the effective date of this act has not expired on the
effective date of this act.” (Emphasis added.)
{¶ 34} In Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d
899, we discussed two examples of clear expressions of retroactivity. We first
referred to our holding in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio
St.3d 100, 522 N.E.2d 489, where we found a clearly expressed legislative intent
for former R.C. 4121.80 to apply retroactively based on the following passage: “
‘This section applies to and governs any action * * * pending in any court on the
effective date of this section * * * notwithstanding any provisions of any prior
statute or rule of law of this state.’ ” Hyle at ¶ 15, quoting former R.C.
4121.80(H). We also cited our determination in State v. Cook (1998), 83 Ohio
St.3d 404, 700 N.E.2d 570, that the General Assembly specifically made former
R.C. 2950.09 retroactive by making the statute applicable to anyone who “ ‘was
convicted of or pleaded guilty to a sexually oriented offense prior to the effective
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date of this section, if the person was not sentenced for the offense on or after’
that date.” Id. at ¶ 16, quoting former R.C. 2950.09(C)(1).
{¶ 35} Similar to former R.C. 4121.80 and 2950.09, Section 3(B) of S.B.
17 expressly makes the 12-year statute of limitations in R.C. 2305.111(C)
applicable to acts of sexual abuse committed prior to the effective date of S.B. 17.
Thus, we conclude that the statute includes strong, unequivocal declarations of
retroactivity.
3. Substantive v. Remedial
{¶ 36} Because R.C. 2305.111(C) was expressly made retroactive, we
must next determine whether the statute retroactively impairs a vested substantive
right or is merely remedial in nature. Van Fossen, supra.
{¶ 37} It is well established that a statute is substantive if it impairs or
takes away vested rights, affects an accrued substantive right, imposes new or
additional burdens, duties, obligations, or liabilities as to a past transaction, or
creates a new right. Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489.
Remedial laws, however, are those affecting only the remedy provided, and
include laws that merely substitute a new or more appropriate remedy for the
enforcement of an existing right. Id. A purely remedial statute does not violate
Section 28, Article II of the Ohio Constitution, even if applied retroactively. Id.{¶ 38} Prior to the effective date of R.C. 2305.111(C), the common law,
as expressed in Ault, permitted a victim of childhood sexual abuse to file a cause
of action within one year from when he or she recalled or otherwise discovered
that he or she had been sexually abused, or when, through the exercise of
reasonable diligence, the victim should have discovered the sexual abuse. Pratte
maintains that she had not discovered that she had been sexually abused prior to
S.B. 17’s enactment. Because Pratte’s cause of action had not yet accrued under
the law existing prior to the enactment of S.B. 17, Pratte, or any victim with
repressed memories, did not have a vested right or an accrued substantive right to
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file a lawsuit. Thus, R.C. 2305.111(C) did not impair vested rights or affect an
accrued substantive right.
{¶ 39} Pratte’s argument that the retroactive application of R.C. 2305.111
violates the right-to-a-remedy provision of Section 16, Article I of the Ohio
Constitution is not persuasive and does not establish that the statute is substantive
and not remedial.1
{¶ 40} “Any constitutional analysis must begin with the presumption of
constitutionality enjoyed by all legislation, and the understanding that it is not this
court’s duty to assess the wisdom of a particular statute.” Groch v. Gen. Motors
Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 141. In Groch,
this court reaffirmed the principles set forth in Sedar v. Knowlton Constr. Co.
(1990), 49 Ohio St.3d 193, 199, 551 N.E.2d 938, that the right-to-a-remedy
provision of Section 16, Article I applies only to existing, vested rights, and it is
state law that determines what injuries are recognized and what remedies are
available. Id. at ¶ 117–119 and 148. Moreover, “[a] person has no property, no
vested interest, in any rule of the common law. * * * Indeed, the great office of
statutes is to remedy defects in the common law as they are developed, and to
adapt it to the changes of time and circumstances.” Munn v. Illinois (1876), 94
U.S. 113, 134, 24 L.Ed. 77; see also Groch at ¶ 117. Thus, as we affirmed in
Groch, “ ‘[t]his court would encroach upon the Legislature’s ability to guide the
development of the law if we invalidated legislation simply because the rule
enacted by the Legislature rejects some cause of action currently preferred by the
courts. * * * Such a result would offend our notion of the checks and balances
between the various branches of government, and the flexibility required for the
healthy growth of the law.’ ” Id. at ¶ 118, quoting Freezer Storage, Inc. v.
Armstrong Cook Co. (1978), 476 Pa. 270, 281, 382 A.2d 715.
1. Pratte did not raise this constitutional challenge in any of the lower court proceedings.
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{¶ 41} In accordance with the constitutional principles espoused in Groch,
the retroactive application of the 12-year limitations period in R.C. 2305.111(C)
does not violate Section 16, Article I of the Ohio Constitution. Pratte did not have
a vested right in the common-law discovery rule announced in Ault, and we would
offend the separation-of-powers doctrine by invalidating the legislature’s decision
to impose a reasonable statute of limitations for claims of childhood sexual abuse.
{¶ 42} In so holding, we observe that if Pratte’s view prevailed, any
statute of limitations that does not afford explicit discovery tolling provisions
would violate the right-to-a-remedy provision, irrespective of whether it is applied
retroactively or prospectively. Furthermore, the adoption of Pratte’s position
would discount the axiom that statutes of limitation serve a gate-keeping function
for courts by “(1) ensuring fairness to the defendant, (2) encouraging prompt
prosecution of causes of action, (3) suppressing stale and fraudulent claims, and
(4) avoiding the inconveniences engendered by delay—specifically, the
difficulties of proof present in older cases.” Doe v. Archdiocese of Cincinnati,
109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 10. Justice is not served
in such cases.
{¶ 43} For the foregoing reasons, we hold that the 12-year statute of
limitations in R.C. 2305.111(C) can be applied retroactively and does not violate
the right-to-a-remedy provision of Section 16, Article of the Ohio Constitution.
R.C. 2305.111(C) applies to a civil action arising from childhood sexual abuse
that occurred prior to the effective date of that subsection, August 3, 2006, if no
prior claim has been filed and if the former limitations period had not expired
before the effective date of that subsection.
C. Construction of R.C. 2305.111(C) and Viability of the Discovery Rule
{¶ 44} Having determined that R.C. 2305.111(C) can be applied
retroactively, we now turn to Pratte’s remaining propositions of law, which aver
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that the repressed-memory tolling mechanism in Ault remains viable after the
enactment of R.C. 2305.111(C). We disagree.
{¶ 45} The primary goal in construing a statute is to ascertain and give
effect to the intent of the legislature. State v. Hairston, 101 Ohio St.3d 308, 2004-
Ohio-969, 804 N.E.2d 471, ¶ 11. In interpreting statutes, this court has long held
that “the intent of the law-makers is to be sought first of all in the language
employed, and if the words be free from ambiguity and doubt, and express
plainly, clearly and distinctly, the sense of the law-making body, there is no
occasion to resort to other means of interpretation.” Slingluff v. Weaver (1902),
66 Ohio St. 621, 64 N.E. 574, paragraph two of the syllabus. “A court is neither
to insert words that were not used by the legislature nor to delete words that were
used.” Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d
394, 2007-Ohio-2203, 865 N.E.2d 1275, ¶ 12.
{¶ 46} R.C. 2305.111(C) provides:
{¶ 47} “[A]n action brought by a victim of childhood sexual abuse
asserting any claim resulting from childhood sexual abuse, shall be brought within
twelve years after the cause of action accrues. For purposes of this section, * * *
a cause of action for a claim resulting from childhood sexual abuse, accrues upon
the date on which the victim reaches the age of majority. If the defendant in an
action brought by a victim of childhood sexual abuse asserting a claim resulting
from childhood sexual abuse that occurs on or after the effective date of this act
has fraudulently concealed from the plaintiff facts that form the basis of the claim,
the running of the limitations period with regard to that claim is tolled until the
time when the plaintiff discovers or in the exercise of due diligence should have
discovered those facts.”
{¶ 48} We find that the language of R.C. 2305.111(C) is plain and
unambiguous. It is beyond dispute from the unambiguous statutory language that
R.C. 2305.111(C) governs a claim resulting from childhood sexual abuse. The
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statute clearly provides that a cause of action brought by a victim of childhood
sexual abuse asserting any claim resulting from childhood abuse accrues upon the
date on which the victim reaches the age of majority.
{¶ 49} The only exception to the accrual of the cause of action on the date
the victim reaches the age of majority is when the defendant fraudulently conceals
facts from the plaintiff.2 While R.C. 2305.111(C) explicitly sets forth a tolling
provision for cases involving fraudulent concealment, the statute does not contain
a tolling provision for persons with repressed memories of childhood sexual
abuse. The legislature could have included a tolling provision for repressed
memory, but it chose not to do so. That decision is a legislative prerogative that
we are not permitted to overrule. Pratte is asking this court to disregard that rule
and to contravene established axioms of statutory construction by inserting words
in the statute that were not used by the General Assembly.
{¶ 50} Our rationale in Doe v. Archdiocese of Cincinnati is particularly
germane to the issues herein:
{¶ 51} “The remedy Doe seeks requires a legislative response to create
such an exception to our long-standing statutes of limitations. The dissent of
Chief Justice Moyer in Ault v. Jasko, 70 Ohio St.3d 114 [120], 637 N.E.2d 870, is
on point with the situation we consider today:
{¶ 52} “ ‘The majority opinion announces a rule of law that would permit
a person at any age after any lapse of time between the alleged sexual abuse and
the revived memory of such abuse to sue the alleged abuser for money damages.
If that is to be the law of Ohio, it is the General Assembly that should declare it as
such rather than this court. * * *
{¶ 53} “ ‘We simply do not have in the record in this case sufficient
scientific, empirical or other information from which to craft a rule of law that
2. Pratte does not rely on the tolling provision for fraudulent concealment.
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will protect those accused of being abusers and those who have been abused or
believe they have been abused as children. The proper forum to determine such
issues is in the General Assembly where all views, all relevant information, all
scientific data, and all empirical studies can be presented, reviewed and debated
by those who have an interest in the issue.’ ” Id., 109 Ohio St.3d 491, 2006-Ohio-
2625, 849 N.E.2d 268, ¶ 51–53.
{¶ 54} Like the plaintiff’s argument in Doe, Pratte’s argument asks this
court to step into the role of the legislature and extend the limitations period for
claims of childhood sexual abuse. Our basis for rejecting Doe’s argument has
even greater weight herein, given that the legislature has now created a specific
limitations period and considered tolling provisions. We are cognizant of the
proposition that some victims of childhood sexual abuse may not recover their
memories of the abuse prior to the expiration of the 12-year statute of limitations,
and we are not without compassion for those victims. But this court would invade
the province of the legislature and violate the separation of powers if it rewrote
the statute to include a tolling provision for repressed memory. See Arbino v.
Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21.
This court will not engage in such a practice and must leave it to the General
Assembly to rewrite the statute if it deems it necessary.
{¶ 55} Pratte’s reliance on the discovery rule adopted in Ault to extend the
statute of limitations is improper. Ault was an equitable rule of law created at a
time when the legislature had not enacted a limitations period for claims of
childhood sexual abuse and this court had adopted a one-year limitations period
for claims of childhood sexual abuse. That case is patently and materially
different from the situation with which we are now faced, in which the General
Assembly has responded by establishing a substantially longer limitations period
of 12 years.
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{¶ 56} We can reasonably infer that the General Assembly considered
repressed memory by increasing the limitations period for claims of childhood
sexual abuse from one year to 12 years. It is further reasonable to infer that the
legislature was reacting to Ault’s adoption of a discovery rule for repressed
memory in enacting R.C. 2305.111(C). The fact that the legislature did not
expressly denounce Ault is of no consequence. When the legislature amends an
existing statute, the presumption is that it is aware of our decisions interpreting it.
Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 278, 744 N.E.2d 719.
{¶ 57} We therefore presume that when the legislature amended R.C.
2305.111(C) to include a limitations period specifically for claims of childhood
sexual abuse, it was aware of our decision in Ault. It is reasonable to conclude
that the legislature had Ault in mind when it increased the limitation period from
one year to 12 years and sought to afford victims a greater period of time in which
to recover their repressed memories.
{¶ 58} For these reasons, we hold that effective August 3, 2006, the
statute of limitations for a cause of action of childhood sexual abuse is governed
by R.C. 2305.111(C). The General Assembly did not include a tolling provision
for persons with repressed memories of childhood sexual abuse, and it is not our
province to add such a provision where one plainly does not exist. In light of the
legislature’s unambiguous enactment, the discovery rule for repressed memory
announced in Ault is no longer viable and has been abrogated by R.C.
2305.111(C). Because Pratte did not file her claim against Stewart within the 12-
year limitations period in R.C. 2305.111(C), and the fraudulent-concealment
tolling provision is inapplicable, the court of appeals soundly affirmed the trial
court’s judgment dismissing Pratte’s claim.
Conclusion
{¶ 59} For the foregoing reasons, we hold that the 12-year statute of
limitations in R.C. 2305.111(C) applies to a civil action arising from childhood
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January Term, 2010
sexual abuse that occurred prior to the effective date of that subsection, August 3,
2006, if no prior claim has been filed and if the former limitations period had not
expired before the effective date of that subsection.
{¶ 60} We further hold that pursuant to R.C. 2305.111(C), a cause of
action brought by a victim of childhood sexual abuse asserting any claim resulting
from childhood sexual abuse accrues upon the date on which the victim reaches
the age of majority. R.C. 2305.111(C) does not contain a tolling provision for
repressed memories of childhood sexual abuse. The discovery rule does not apply
to toll the statute of limitations while a victim of childhood sexual abuse represses
memories of that abuse.
{¶ 61} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, and CUPP, JJ.,
concur.
BROWN, C.J., not participating.
__________________
Kircher Law Office, L.L.C., and Konrad Kircher, for appellant.
Matan, Wright & Noble and Scott E. Wright, for appellee.
Gamso, Helmick & Hoolahan and Catherine G. Hoolahan, urging reversal
for amici curiae, National Association to Prevent the Sexual Abuse of Children,
Survivors’ Network of Those Abused by Priests, and National Center for Victims
of Crime.
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