On August 6, 2024, in the Jane Doe v. Joseph Robert Green, Jr. case, the Court of Appeals of Virginia (the intermediate level of appellate court in Virginia), held that the 2011 extension of the statute of limitations for a minor to bring an action for sexual assault from 2 years to 20 years after a minor reaches the age of majority was not be applied retroactively to a cause of action that had otherwise expired before the statute was enacted. Similarly, the 2021 Accrual Statute could not be applied retroactively to provide that Jane Doe’s claim did not accrue until her psychologist’s diagnosis of injury.
Plaintiff Doe alleged she was a victim of sexual assault perpetrated by Defendant Green and alleged damages resulting therefrom. The assaults occurred when Doe was a teenager. She reached the age of majority on December 25, 2008. While Doe had emotional struggles as a young adult, it was not until May 2021 that Doe was formally diagnosed by her licensed clinical psychologist with PTSD as a result of the sexual abuse. Doe filed a complaint in the Circuit Court in September 2021 bringing claims of negligence, battery, and intentional infliction of emotional distress. Green filed a plea in bar asserting that the statue of limitations barred Doe’s claims as these expired December 25, 2010, two years after Doe reached the age of majority.
Doe argued that a 1995 amendment to the Virginia Constitution permits statutes of limitation changes to be applied retroactively. Doe further argued that the 2021 Accrual Statute also applied such that, even if the statute of limitations did not apply retroactively, her claim is still actionable as it did not “accrue” until she received the PTSD diagnosis in 2021.
Two statutes were reviewed – the Accrual Statute and the Statute of Limitations for sexual assault cases. First, the court discussed the Accrual Statute for sexual assault claims which has been changed in the past several years. Pursuant to a 2021 revision, Virginia Code § 8.01-249(6) currently states that a plaintiff’s claim accrues on the date on which a psychologist “first communicates” to her “the fact of the injury and its causal connection to the sexual abuse.” This delayed accrual is different than in the 2005 version of the statute (applicable at the time of Jane Doe’s alleged abuse). The 2005 version of the statute contains language expressly requiring that the plaintiff not know of the “fact of injury or its casual connection to the sexual abuse” before reaching the age of majority in order to be eligible for delayed accrual. Given the evidence that Doe clearly knew of the abuse before reaching the age of majority, under the 2005 statute she was not entitled to a delayed accrual. If the 2021 revised statute were applied, Doe’s claims would not be barred as the 2021 version changes the standard, permitting a claim to accrue only once a psychologist communicates the fact of injury and its connection to sexual abuse, which did not happen for Doe until 2021.
The court noted that there is first a presumption that amendments to statutes of limitations are prospective and that some manifestation of legislative intent to make a statute retroactive is required in order to trigger retroactive application:
“[A]mendments to statutes of limitations are presumed to be prospective and not retroactive in their operation in the absence of a clear legislative intent to the contrary.” Riddett v. Va. Elec. & Power Co., 255 Va. 23, 29 (1998) (citing Ferguson v. Ferguson, 169 Va. 77, 85 (1937)). Any analysis of the retroactivity of a statute is “guided by the fundamental principle[] . . . that retroactive laws are not favored, and that a statute is always construed to operate prospectively unless a contrary legislative intent is manifest.” Berner v. Mills, 265 Va. 408, 413 (2003) (citations omitted)
A legislative intent to make a statute retroactive manifests only when the language of the statute affirmatively “state[s] in clear, explicit, and unequivocal terms” that the statute is meant to apply retroactively. Foster v. Smithfield Packing Co., 10 Va. App. 144, 147 (1990). Further, when a statute is amended and re-enacted, the new provisions are presumed to be prospective rather than retroactive unless the amendments “expressly provide[] that such changes are effective retroactively on a specified date.” Berner, 265 Va. at 413.
The 2021 Accrual Statute has no explicit language conveying an intent that it should be applied retroactively. As such, the Court of Appeals refused to so apply the 2021 Accrual Statute to Doe’s case. The Court found that 1995 Amendment to Article IV § 14 of the Virginia Constitution did not make all statutes regarding abuse of a minor apply retroactively. Rather, the Constitutional Amendment merely provided the General Assembly with the power to make statutes retroactive but did not compel retroactivity where no legislative intent is otherwise expressed.
Second, the court reviewed the 2011 enactment of Code § 8.01-243(D), extending the statute of limitations from 2 to 20 years for claims arising from childhood sexual abuse. The court did not reach the issue of whether the statute applied retroactively as the issue was not preserved for appeal. Consequently, the ordinary two-year limitations period for personal injury claims in Code § 8.01-243(A) applied and the claim expired as of December 25, 2010 as the Accrual Statute did not operate to extend the normal statute of limitations.
