Is There a Statute of Limitations for Sexual Assault in SC?

Whether there is a statute of limitations for sexual assault in SC that applies to criminal charges or a civil lawsuit is a question on many people’s minds lately…

Can a person really be arrested, prosecuted, and sent to prison in SC for something that happened decades ago?

Can they be sued for an alleged sexual assault 30 years or more in the past?

Although South Carolina’s statute of limitations for sexual assault is more expansive than many other states, there is still a push to extend the time limits for civil lawsuits in our state.

With the constant media attention on “celebrity” sexual assault allegations made since the start of the #metoo movement and the more recent sexual assault allegations made against a prospective US Supreme Court justice, public awareness is growing of the prevalence of sexual assault, sexual harassment, and phenomena like delayed reporting.

So, what is the statute of limitations for sexual assault in SC?

Is There a Statute of Limitations for Sexual Assault Lawsuits in SC?

First, there is a distinction between sexual assault lawsuits and sexual assault criminal prosecutions.

Although the most common statute of limitations for torts (causes of action in a civil lawsuit) in SC is three years, there are many exceptions for different types of lawsuits.

SC Code Section 15-3-555 provides a flexible statute of limitations for victims of sexual abuse or incest in SC – six years after the victim turns 21 or three years after they discover the causal connection between their injury and the abuse…

(A) An action to recover damages for injury to a person arising out of an act of sexual abuse or incest must be commenced within six years after the person becomes twenty-one years of age or within three years from the time of discovery by the person of the injury and the causal relationship between the injury and the sexual abuse or incest, whichever occurs later.

(B) Parental immunity is not a defense against claims based on sexual abuse or incest that occurred before, on, or after this section’s effective date.

The plain language of the statute makes it applicable to abuse of minors under the age of 21, however – the statute of limitations for an adult with civil claims of sexual assault will be different and will depend on how the lawsuit is filed.

What about for criminal prosecutions in SC, though? Is there a statute of limitations for sexual assault crimes in SC?

Is There a Statute of Limitations for Sexual Assault Crimes in SC?

There is no statute of limitations for sexual assault crimes in SC – in fact, there are no statutes of limitations for any crimes in SC.

Theoretically, a person in SC can be investigated, charged, prosecuted, and sent to prison for a sexual assault that happened at any time in their past.

This is important to sexual assault victims because the nature of the crime tends to cause delayed reporting by victims.

It’s also important to the accused because it may be extremely difficult and unfair to be forced to defend against accusations when so much time has gone by that evidence is lost or destroyed and witnesses are either unavailable or have no memory of the events…

Why Do Sexual Assault Victims Delay Reporting?

In some cases, alleged sexual assault victims delay reporting because it never happened.

There are many reasons why false allegations of sexual assaults are made, including false memories triggered in therapy, revenge, financial motivations, a parent seeking an advantage in family court or other court proceedings, or mental illness.

In many other cases, however, there are perfectly valid reasons why a sexual assault victim may wait years or even decades to report the crime, including:

  • Shame: Sexual violations are humiliating, dehumanizing, and the victim often struggles with feeling like it was somehow their fault – shame is a natural reaction to sexual abuse or sexual assault;
  • Denial and minimization: Sexual assault victims will often make excuses for the attacker, blame themselves, doubt themselves, and minimize the effect of the assault even as they are suffering the psychological damage from it;
  • Fear of consequences: Victims fear that they won’t be believed, they will lose their job, they will be blamed for what happened, or that the incident will follow them publicly for the rest of their lives;
  • Low self-esteem: Especially for victims who had self-esteem issues to begin with, sexual violations can destroy their self-confidence and self-image, causing them to shy away from confronting their assaulter in the courts;
  • Hopelessness and helplessness: Victims of sexual assault often feel helpless– they will not be believed, the assaulter is more powerful than them, and nothing they do will make a difference;
  • A history of sexual abuse: Victims of childhood sexual abuse or prior sexual assaults may be more likely to stay quiet about the assault, especially if they have had negative experiences when they reported prior assaults;
  • Lack of information: Victims may not understand how the court system works, or the psychological effects that the abuse may have on them if they do not seek help;
  • Disbelief, dissociation, or drugging: If a victim is drunk or has been drugged when the sexual assault happens, their memory of the event may be vague – causing them to doubt themselves and to doubt whether authorities are going to believe them.

The Due Process Clause Provides Some Protection Against Pre-Indictment Delay in SC

Although there is no statute of limitations for sexual assault crimes in SC, the Due Process Clause prevents “oppressive pre-indictment delay.”

In State v. Brazell, for example, the SC Supreme Court outlined what a defendant must prove when they make a motion to dismiss their case based on excessive pre-indictment delay:

The Due Process Clause plays a limited role in protecting against oppressive pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The United States Supreme Court has developed a two-prong inquiry when pre-indictment delay is alleged to violate due process. First, the defendant has the burden of proving the pre-indictment delay caused substantial actual prejudice to his right to a fair trial. Second, if the defendant shows actual prejudice, the court must consider the prosecution’s reasons for the delay and balance the justification for delay with any prejudice to the defendant. If the court finds the delay was an intentional device to gain a tactical advantage over the accused, the court should dismiss the indictment. Id.; Howell v. Barker, 904 F.2d 889 (4th Cir.), cert. denied, 498 U.S. 1016, 111 S.Ct. 590, 112 L.Ed.2d 595 (1990); United States v. Automated Medical Laboratories, Inc., 770 F.2d 399 (4th Cir.1985). When balancing the prejudice and the justification, “[t]he basic inquiry then becomes whether the government’s action in prosecuting after substantial delay violates ‘fundamental conceptions of justice’ or ‘the community’s sense of fair play and decency.’” Howell, 904 F.2d at 895 (quoting United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 404 (4th Cir.1985)).

If the defendant can:

  1. Prove that the delay caused “substantial actual prejudice” to his right to a fair trial (unavailable evidence or witnesses, for example); and
  2. The prosecution’s reasons for the delay do not outweigh the prejudice caused to the defendant; then
  3. The case should be dismissed.

Criminal Defense Lawyer in Charleston, SC

Grant B. Smaldone is a criminal defense attorney in Charleston, SC who regularly defends sex crimes in the Charleston, Georgetown, Myrtle Beach, SC areas.

If you or a loved one has been accused of a crime in SC, call now at (843) 808-2100 or send a message to talk to a SC criminal defense attorney today.