Justice for Abuse Survivor Part II: The Statute Means What it Says

August 23, 2017

Oregon Court of Appeals holds that the legislature does not need to use “magic words” to make a statute of limitations apply to formerly time-barred claims.

Doe v. Silverman, 287 Or. App. 247 (2017)

In my earlier post, I described a case in which Roggendorf Law LLC assisted some Southern Oregon colleagues on appeal in an abuse case arising out of a psychologist, Arthur Silverman, molesting one of Silverman’s son’s young friends.

At the trial court, the case against the wife was dismissed (since reversed—Doe v. Sliverman (and Dixon), 286 Ore. App. 813  (2017)), and the case against the abuser was dismissed separately, on timeliness grounds.  The trial court said that because the claim against Silverman had at one point been barred by the statute of limitations, the Legislature could not “revive” that claim without specifically saying so in a later amendment to the child abuse statute of limitations.

To explain, a statute of limitations requires a lawsuit be brought within a certain time of the event happening, the identity of the perpetrator becoming known, or the discovery that certain conduct caused harm.  In the case of child abuse, Oregon allows an abuse victim until age 40 to bring suit, or 5 years from discovery of a connection between the abuse and some later, separate injury (remembering the abuse is not enough), whichever period is longer.  ORS 12.117.    These limits were put in place in 2009 with the help of my former firm and myself.  The prior limits were age 24 or 3 years from discovery of the connection between the abuse and some later consequence, such as addiction, or relationship problems.

The argument in Doe v. Silverman was that the 2009 amendments did not apply because the victim was over 24 before 2009, so his claim had “expired.”  The problem (and the reason I’m using quotes around “revive” and “expired”) is that a common law claim like battery and negligence cannot “expire.”  The statute of limitations is just a procedural defense—something that a defendant has to ask for, or he loses it—so the legislature doesn’t need to expressly “revive” old claims.

In 2009, the Oregon Legislature was clear that it meant for the statute to “apply to all causes of action, whether arising before, on or after the effective date of this 2009 Act” (emphasis added).  All means all.  Because our client’s common law claims could not “expire” they did not need to be “revived.”

A plain reading of a clear statute.  The Court of Appeals got it right.

Justice for Abuse Survivor: Wife of an abuser can’t bury her head in the sand.

July 20, 2017

Oregon Court of Appeals holds that wife’s chilly reaction to victim after evidence of possible abuse is enough to keep her in the case.

Doe v. Sliverman (and Dixon), 286 Ore. App. 813  (2017)   

My fellow lawyer from Southern Oregon, Tom Petersen, called me up about a case where the trial court dismissed a sex abuse survivor’s lawsuit against the abuser, former child psychologist Samuel Arthur Silverman, and his wife at the very start of the case.  The allegations against the wife were that she knew the husband had an improper sexual interest in children generally, and in particular, that she saw the 13 year old victim come out of her husband’s separate, private bedroom one morning when he had been staying the night ostensibly visiting the couple’s son, the victim’s friend from school.

After seeing our client in that compromising situation, the wife, a doctor specializing  in adolescent psychology named Sandra Dixon, MD, was alleged to have begun treating our client very coldly, ignoring him entirely whenever possible.  There was also evidence that Dixon had known Silverman presented a danger to children based on past instances of abuse or suspicious behavior.  Silverman was eventually arrested, tried, and sentenced to prison for sexually abusing our client.  He absconded overseas for a time, but after 8 years on the run, was caught and extradited to Oregon to serve his sentence.

Oregon law on the child abuse statute of limitations (ORS 12.117) allows child abuse victims to bring suit until age 40, or within 5 years of making a connection between one’s abuse and subsequent injuries, whichever is later.  In dismissing the claim, Dr. Sandra Dixon argued (and the trial court agreed) that she did not “knowingly” allow, permit, or encourage abuse by Silverman because she did not see the abuse itself.  The Court of Appeals rightly rejected such a narrow view of what the legislature meant by “allowing” child abuse to happen.  Unless it is further appealed, the case now returns to the trial court to find out exactly what Sandra Dixon knew about her husband’s proven sexual abuse of our client.