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September 28, 1993



Stephen N. Limbaugh, Jr., Judge, Holstein, Thomas, JJ. and Crahan, Sp.J., concur; Benton J., Dissents in separate opinion filed; Covington, C.j. and Robertson, J., concur in opinion of Benton, J. Price, J., not sitting.

The opinion of the court was delivered by: Limbaugh

This appeal follows the trial court's dismissal of plaintiff's petition seeking damages for physical and emotional injuries he suffered from being sexually abused as a minor. Because the appeal involves the validity of a state statute, it was transferred from Court of Appeals, Western District, where it was originally filed, to this Court. Mo. Const. art. V, § 3. The sole issue is the constitutionality of the childhood sexual abuse statute, § 537.046, RSMo Supp. 1992, to the extent that it authorizes causes of action that are barred under statutes of limitation applicable prior to August 28, 1990, the effective date of the statute. The judgment is affirmed. *fn1

According to the petition, filed August 1, 1991, defendant, Father John Whiteley, a Catholic priest, engaged in sexual contact with plaintiff, John Z. Doe, on repeated occasions. The acts of sexual contact allegedly occurred while Doe was a minor and a member of Whiteley's parish. Doe states that he was intimidated into silence because of his trust in Whiteley, his belief that Whiteley was a close family friend, his perception of Whiteley's greater physical strength, and his young age. He also alleges that the abuse caused him to repress the incidents so that he was unable to know or perceive that he was a victim of sexual abuse or that he suffered injuries from that abuse. Doe then states that it was 1987 before he first realized that Whiteley had abused him, and it was not until December of 1989, with the aid of therapy, that he began to make the connection between physical and emotional injuries he suffered and the acts of abuse.

Doe claimed damages against Whiteley under three causes of action: battery, clergy malpractice, and breach of fiduciary duty. *fn2 Invoking the doctrine of respondeat superior, Doe also sued the Roman Catholic Diocese of Jefferson City, Michael McAuliffe, in his capacity as Bishop of the diocese, and St. Pius X Church in Moberly, Whiteley's parish church.

Pursuant to the defendants' motion to dismiss, the trial court entered the following order:

The Court finds that Section 537.046.2, violates Article One, Section 13, of the Constitution of the State of Missouri; and

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that this cause be, and the same hereby is, dismissed for the reason that this cause is barred by the statute of limitations.

Although the order is not specific, the statute of limitations to which the court refers can only be that which was applicable to Doe's causes of action. There are actually two relevant statutes: for battery, the statute of limitations is two years, § 516.140, RSMo 1986; and for the other tort actions, assuming they are recognized under the law, the statute is five years, § 516.120(4), RSMo 1986. Doe did not appeal the trial court's ruling that the statutes of limitation had expired by the time the petition was filed, and therefore, we do not address the propriety of that ground for dismissal. *fn3 Rule 84.13(a).

The trial court considered, in the alternative, whether the action might be brought within the separate statute of limitation found in § 537.046. That statute, enacted in 1990, provides:

1. As used in this section the following terms mean:

(1) "Childhood sexual abuse", any act committed by the defendant against the plaintiff which act occurred when the plaintiff was under the age of eighteen years and which act would have been a violation of section 566.030, 566.040, 566.050, 566.060, 566.070, 566.080, 566.090, 566.100, 566.110, or 566.120, RSMo, or section 568.020, RSMo;

(2) "Injury" or "illness", either a physical injury or illness or a psychological injury or illness. A psychological injury or illness need not be accompanied by physical injury or illness.

2. In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within five years of the date the plaintiff attains the age of eighteen or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs.

3. This section shall apply to any action commenced on or after August 28, 1990, including any action which would have been barred by the application of the statute of limitation applicable prior to that date. (Emphasis added).

The parties do not contest that Whiteley's acts would have violated one or more of the statutes listed in subsection 1(1) or that the case was timely filed under the separate limitation period in subsection 2. Their dispute centers, instead, on the constitutionality of subsection 3, which authorizes the actions even though they would have been barred by the statutes of limitation applicable prior to the effective date of § 537.046. As noted, the trial court resolved that question by finding that the statute violates article I, section 13, of the Missouri Constitution, *fn4 and it is from that ruling that Doe appeals the dismissal of his case. *fn5

We begin our review of the trial court's ruling with the recognition that the statute is presumed to be valid and will not be declared unconstitutional unless it clearly contravenes some constitutional provision. Lester v. Sayles, 850 S.W.2d 858, 872 (Mo. banc 1993).

Article I, section 13, prohibits the enactment of any law that is "retrospective in its operation." *fn6 Retrospective laws are generally defined as laws which "take away or impair rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past." Lucas v. Murphy, 348 Mo. 1078, 156 S.W.2d 686, 690 (Mo. 1941), as ...

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