The Laws That Should Protect Our Children
Current Civil SOL in a nutshell
SOL vs. perp: +2 years from majority = Age 20 SOL vs. employer: +2 years from majority = Age 20
Majority Tolling: √ Age 18 Discovery Tolling: √ Liberal (+2 years)
SOL : +2 years from majority or liberal discovery, subject to a 20 year SOR.
- W. Va. Code §55-2-12. Personal actions not otherwise provided for. Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.
Majority, yes. 18.
- W. Va. Code § 55-2-15 (“If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight of this article, except that it shall in no case be brought after twenty years from the time when the right accrues”).
Dunn v. Rockwell, 689 S.E.2d 255, 264 (W. Va. 2009) (“application of discovery rule does not require a showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury”);
Merrill v. W. Va. Dep’t of Health & Human Res., 219 W. Va. 151, 156 n.9, 632 S.E.2d 307, 312 n.9 (W. Va. 2006) (“The ‘discovery rule’ is generally applicable to all torts, unless there is a clear statutory prohibition of its application.” Syl. pt. 2, Cart v. Marcum, 188 W. Va. 241, 423 S.E.2d 644. There is no statutory prohibition to applying the discovery rule in the instant case.”)
Merrill v. W. Va. Dep’t of Health & Human Res., 219 W. Va. 151, 156, 632 S.E.2d 307, 312, 2006 W. Va. LEXIS 34, 15 (W. Va. 2006) (“In Syllabus point 4 of Gaither v. City Hospital, Inc., this Court held that [i]n tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury. 199 W. Va. 706, 487 S.E.2d 901 (1997).”)
a. Denying application of discovery rule where: “[T]he supreme court found that the sisters, without question, knew they were being sexually abused by their father, knew the identity of the alleged wrongdoer for at least their entire adult lives, and failed to provide any support for their self-serving statements that they did not comprehend the causal connection between their injuries and the actions of the West Virginia Department of Health and Human Resources (DHHR) during the time they were being sexually abused; under the Cart rule, the supreme court found that there was no merit to the sisters’ assertion that if DHHR had not delaying in turning over the requested records the statute of limitations would have been preserved because the records were not requested until long after the expiration of the statute of limitations.“ Merrill v. W. Va. Dep’t of Health & Human Res., 219 W. Va. 151, 632 S.E.2d 307, 2006 W. Va. LEXIS 34 (2006)
Current Criminal SOL in a nutshell
None for most felonies.
State v. King, 140 W. Va. 362, 367, 84 S.E.2d 313, 316 (W. Va. 1954) (noting “the felony charged in the indictment is subject to no limitation.”)
Age of Majority / Age of Consent / Age of Marriage
Age of Majority: 18. See, W. Va. Code Ann. § 2-3-1.
Age of Consent: 16. See, W. Va. Code Ann. § 61-8B-2.
Age of Marriage with Parental Consent: 16 (under 16 with judicial consent).
Age of Marriage without Parental Consent: 18.
See, W. Va. Code Ann. § 48-2-301.
Medical Neglect Statute
CIVIL MEDICAL NEGLECT STATUTE
CRIMINAL MEDICAL NEGLECT STATUTE
WEST VIRGINIA defenses to murder, criminal child neglect, and child neglect resulting in death
The provisions of this statute [which define the offense of murder of a child by refusal or failure to supply necessities] shall not apply to any parent, guardian or custodian who fails or refuses, or allows another person to fail or refuse, to supply a child under the care, custody or control of such parent, guardian or custodian with necessary medical care, when such medical care conflicts with the tenets and practices of a recognized religious denomina¬tion or order of which such parent, guardian or custodian is an adherent or member. West Virginia Code §61-8D-2(d)
This section [on criminal child neglect] shall not apply to any parent, guardian or custodian who fails or refuses, or allows another person to fail or refuse, to supply a child under the care, custody or control of such parent, guardian or custodian with necessary medical care, when such medical care conflicts with the tenets and practices of a recognized religious denomination or order of which such parent, guardian or custodian is an adherent or member. West Virginia Code §61-8D-4(d)
No child who in lieu of medical treatment was under treatment solely by spiritual means through prayer in accordance with a recognized method of religious healing with a reason¬able proven record of success shall, for that reason alone, be consi¬dered to have been neglected within the provisions of this section [on child abuse resulting in death]. A method of religious healing shall be presumed to be a recog¬nized method of religious healing if fees and expenses incurred in connection with such treatment are permitted to be deducted from taxable income as “medical expenses” pursuant to regulations or rules promulgated by the United States Internal Revenue Service.
Religous Liberty Statute
Religious liberty statute that could put children at risk
No law as of January 2014