Chapter 10: Civil Actions Filed by Crime Victims
10.1Crime Victim May File Civil Action
A crime victim may file a civil action alleging a tort based on the offender’s criminal conduct. See MCL 750.4 (preserving civil remedies under the Michigan Penal Code); People v Veenstra, 337 Mich 427, 430 (1953) (determining that “the same act may constitute both a crime and a tort[;] the crime is an offense against the public pursued by the sovereign, [and] the tort is a private injury . . . pursued by the injured party[]”) (citation and quotations omitted).
“The very same evidentiary facts required to prove civil liability for negligence may be used to prove criminal liability.” People v McMurchy, 249 Mich 147, 170 (1930).
For the limitations periods for commencement of various actions to recover damages to persons or property, see MCL 600.5805.
A.Victim of Criminal Sexual Conduct
“A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by [MCL 600.5805].” MCL 600.5805(1). For purposes of criminal sexual conduct, MCL 600.5805(6) provides:
“The period of limitations is 10 years for an action to recover damages sustained because of criminal sexual conduct. For purposes of this subsection, 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, 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.1 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 600.58512], 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 ___.
“Reading the statute in its entirety, it is clear that the Legislature intended to allow minor victims of criminal sexual conduct to bring a cause of action either by the time they turn 28 (an extension of the otherwise applicable statute of limitations [in MCL 600.5805]) or within three years of when they discovered, or through the exercise of reasonable diligence should have discovered, their injuries and the causal relationship between their injuries and the criminal sexual conduct (discovery rule-based accrual), whichever is later.” 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 ___.3
B.Victim of Female Genital Mutilation
“An individual who is a victim of female genital mutilation may bring an action, in a court of competent jurisdiction, for damages sustained because of the female genital mutilation.” MCL 600.2978(1). “In an action under [MCL 600.2978], the court may award all of the following:
(a) Three times the amount of actual damages sustained.
(b) Damages for noneconomic loss.
(c) Costs and reasonable attorney fees.”4 MCL 600.2978(2).
Notwithstanding MCL 600.5851, “an individual who, while a minor, is the victim of female genital mutilation may commence the action under [MCL 600.2978] or as otherwise allowed by law to recover damages sustained because of the female genital mutilation at any time before the individual reaches the age of 28 years.” MCL 600.5851a(1).