1.6Civil Remedy Available for Victims of Sexual Assault

A.Compensation for Damages Caused by the Assault

In 1982, in the first case of its kind in Michigan, a jury awarded a rape victim $2,000,000 in a civil suit the victim had brought against her assailant. Comment, Civil Compensation for the Victim of Rape, 7 Cooley L Rev 193 (1990). Rape victims may file civil suits against their assailant, and they may receive compensation “for both the immediate and long-term physical and psychological injuries they suffer as a result of this brutal act.” Id. at 193-194. “While a criminal conviction may give the victim a sense of moral victory, it does not compensate her for the physical and emotional injuries that she suffered, and will continue to suffer, long after the rape.” Id. at 198.

A sexual assault victim may recover civil damages for injury resulting from a crime punishable under the Penal Code even when the statute governing the crime does not specifically allow it. See MCL 750.4. MCL 750.4 states that “[t]he omission to specify or affirm in this act any liability to damages, penalty, forfeiture or other remedy, imposed by law, and allowed to be recovered, or enforced in any civil action or proceeding, for any act or omission declared punishable herein does not affect any right to recover or enforce the same.”

“Although the same act may constitute both a crime and a tort, the crime is an offense against the public pursued by the sovereign, while the tort is a private injury which is pursued by the injured party.” People v Veenstra, 337 Mich 427, 430 (1953) (quotation marks and citation omitted).

“Restitution awarded by a sentencing court is not a substitute for civil damages, but encompasses only those losses which are easily ascertained and measured and are a direct result of a defendant’s criminal acts.” People v Tyler, 188 Mich App 83, 89 (1991). See also People v White, 212 Mich App 298, 316 (1995) (restitution consists only of losses that are easy to determine and measure and directly result from a defendant’s criminal acts).

B.Statutes of Limitations¹

1.Action for Damages²

MCL 600.5805 provides the limitations periods for initiating various actions to recover damages to persons or property. “The period of limitations is 10 years for an action to recover damages sustained because of criminal sexual conduct.” MCL 600.5805(6).

MCL 600.5851b, enacted in 2018, both extends the statute of limitations for individuals assaulted as minors to file an action for damages, and provides a statutory codification of a discovery rule that tolls the accrual date of a cause of action for individuals assaulted as minors.³ McLain v Roman Catholic Diocese of Lansing, ___ Mich ___, ___ (2024) (McLain II), aff’g McLain v Roman Catholic Diocese of Lansing, ___ Mich App ___ (2023) (McLain I). “Notwithstanding [MCL 600.5805] and [MCL 600.5851⁴], an individual who, while a minor, is the victim of criminal sexual conduct may commence an action to recover damages sustained because of the criminal sexual conduct at any time before whichever of the following is later:

(a) The individual reaches the age of 28 years.

(b) Three years after the date the individual discovers, or through the exercise of reasonable diligence should have discovered, both the individual’s injury and the causal relationship between the injury and the criminal sexual conduct.” MCL 600.5851b(1).

“For purposes of [MCL 600.5851b(1)], it is not necessary that a criminal prosecution or other proceeding have been brought as a result of the conduct or, if a criminal prosecution or other proceeding was brought, that the prosecution or proceeding resulted in a conviction or adjudication.” MCL 600.5851b(2).

“MCL 600.5851b(1) is a hybrid”—a statute of limitations extension and a discovery rule that tolls the accrual date of a claim. McLain II, ___ Mich at ___.

•“[MCL 600.5851b(1)(a)] is a straightforward extension of the statute of limitations because it extends the time for a minor to file an action from until at least age 19 (i.e., one year after the disability of minority is removed, MCL 600.5851) to age 28.” McLain II, ___ Mich at ___.

•“[MCL 600.5851b(1)(b)], however, is an unmistakable statutory codification of a discovery rule. It does not simply extend the statute of limitations an additional three years. Rather, it changes the date from which the three-year period begins to run. In other words, it tolls the accrual date.” McLain II, ___ Mich at ___.

However, MCL 600.5851b(1)(b) does not apply retroactively to resurrect expired claims: “We agree with the Court of Appeals that ‘[n]othing in the plain language of MCL 600.5851b(1)(b) suggests that it was intended to apply retroactively.’” McLain II, ___ Mich at ___, quoting McLain I, ___ Mich App at ___ (alteration in original). The sexual misconduct on which plaintiff’s claim was based   occurred in 1999, before MCL 600.5851b was enacted, and when “a civil claim based on criminal sexual conduct of a minor accrued when the conduct occurred.” McLain II, ___ Mich at ___, citing Lemmerman v Fealk, 449 Mich 56, 64 (1995). Consequently, plaintiff’s claim was time-barred by the three-year personal injury statute of limitations in effect then (former MCL 600.5805(8), now MCL 600.5805(2)). McLain II, ___ Mich at ___.⁵.

2.Indictment for Crime

MCL 767.24 governs the limitations period for filing an indictment for CSC and human trafficking offenses. MCL 767.24(1)-(4).

•For a violation of MCL 750.520b (CSC-I), an indictment “may be found and filed at any time[.]” MCL 767.24(1)(a).

•For a violation of a human trafficking statute described in MCL 750.462a to MCL 750.462h that is punishable by life imprisonment, an indictment “may be found and filed at any time[.]”⁶ MCL 767.24(1)(c).

•For a violation or attempted violation of MCL 750.13 or a human trafficking statute described in MCL 750.462b to MCL 750.462e, an indictment “may be found and filed within 25 years after the offense is committed.” MCL 767.24(2).

•For a violation or attempted violation of MCL 750.520e (CSC-IV), or MCL 750.520g (assault with intent to commit CSC involving penetration or CSC-II), an indictment “may be found and filed within 10 years after the offense is committed or by the alleged victim’s twenty-first birthday, whichever is later,” MCL 767.24(3)(a), unless DNA evidence from an unidentified individual is obtained, which would require application of the provisions in MCL 767.24(3)(b). MCL 767.24(3).

•For a violation or attempted violation of MCL 750.520e (CSC-IV), or MCL 750.520g (assault with intent to commit CSC involving penetration or CSC-II), when DNA evidence from an unidentified individual is obtained, “an indictment against that individual for the offense may be found and filed at any time after the offense is committed.” MCL 767.24(3)(b). “However, after the individual is identified, the indictment may be found and filed within 10 years after the individual is identified or by the alleged victim’s twenty-first birthday, whichever is later.” Id.

•For a violation of MCL 750.520c (CSC-II), or MCL 750.520d (CSC-III), an indictment “may be found and filed . . .within 15 years after the offense is committed or by the alleged victim’s forty-second^[7]birthday, whichever is later,” unless DNA evidence from an unidentified individual is obtained, which would require application of the provisions in MCL 767.24(4)(b). MCL 767.24(4)(a).

•For a violation of MCL 750.520c (CSC-II) or MCL 750.520d (CSC-III), when DNA evidence from an unidentified individual is obtained, “an indictment against that individual for the offense may be found and filed at any time after the offense is committed.” MCL 767.24(4)(b). “However, after the individual is identified, the indictment may be found and filed within 15 years after the individual is identified or by the alleged victim’s forty-second^[8] birthday, whichever is later.” Id.

Indictments not specifically addressed by the provisions of MCL 767.24 “may be found and filed within 6 years after the offense is committed.” MCL 767.24(10).

Tolling. “Any period during which the party charged did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.” MCL 767.24(11). Tolling or an extension of the limitations period found in MCL 767.24 applies to a violation if the limitations period for that violation had not yet expired at the time the extension or tolling would begin. MCL 767.24(12).