In Rodriguez v. Favalora, the court ruled that Florida law does not allow victims who remember their childhood abuse later in life to file suit against those who negligently allowed the abuse if the statute of limitation has already run.

Now, Florida Statute section 95.11(7) does allow victims who recall their childhood abuse later in life to sue their abusers even if the statute of limitation has already run.

The intense trauma that results from childhood molestation can cause substantial psychological damage including the loss of all memories associated with the events. Demands of secrecy by an adult authority figure alone may cause a child to suppress his or her abuse.

To combat this effect and bring abusers to justice, Florida’s “delayed discovery doctrine” allows victims of childhood abuse to sue their abusers in civil court within four years from the time the victim discovers an injury that was caused by the past abuse. Normally, a victim must file suit before they turn 26 or within four years after they become independent of the abuser (whichever comes first).

Without the delayed discovery doctrine, victims of childhood abuse who only remembered their abuse after the standard statute of limitation had run would not be able to sue their abusers. Now, Florida’s Third Circuit has ruled that the delayed discovery doctrine is only available to victims who sue abusers who act with intent and not those who act only negligently.

The case involved a man who was molested while in a foster home operated by the Catholic Church. His claim against the church was that it acted negligently in not providing a safe foster home where he would be free of abuse. However, his claim was denied because he alleged the church acted negligently and not intentionally.

The effect of this ruling is that those organizations and institutions that fail to protect our children against molesters and abusers when the organizations and institutions had a legal duty to do so (as in this case) will often go unpunished in civil court in cases of delayed discovery.

The delayed discovery doctrine will not allow people who intentionally abuse children to escape liability in situations of delayed discovery because those abusers acted with intent. However, if the abuser’s employer shares in the fault through their negligence, then the Third Circuit just gave them a free pass in cases of delayed discovery.

This ruling defeates the purpose of tort law. Civil liability for wrongful behaviour is designed to serve two purposes: make the victim whole to the greatest extent that the law can, and to deter the harmful behaviour in the future.

If organizations and institutions are allowed to escape liability for their negligence just because they are lucky enough to have harmed a victim who does not remember his or her abuse until after the statute of limitations has run, then the institutions are not deterred as much as they should be.

Florida law should subject negligent child abusers to the same liability and deterrent effect that we subject intentional abusers to. That way, the businesses, churches and other organizations charged with protecting our children have the greatest number of incentives possible to act responsibly.