• February 20, 2010

With the recent news of the Biber matter, the rather uncommon settlement term in the Lemond v. Trek lawsuit, and now a certified question to the Minnesota Supreme Court from the U.S. Court of Appeals for the Eighth Circuit, it seems that the deep dark world of child sexual abuse may be getting some needed light and attention, if only to remind victims that many recognize the problem, their suffering, and there are places to go for help (here, too).

The Minnesota Supreme Court heard three certified questions:  (1) whether Minnesota affords a cause of action for sexual abuse between siblings (this case, before U.S. Dist. Court Judge Paul Magnuson (D. Minn.); (2) whether there is “intrafamilial immunity” between siblings under Minnesota law, and (3) proper application of the statute of limitation: Minn. Stat. 541.073.  The Minnesota Supreme Court heard oral argument on February 4.  (Further discussion after the break…)

The first two of the three certified questions appear somewhat strange because there appears to be no dispute that the answers are clearly “yes” (there is such a cause of action) and “no” (“intrafamilial immunity” does not apply) but the Court of Appeals appears to have concluded that Minnesota law simply did not definitively answer the questions and that it was the province of the Minnesota Supreme Court, not the Eighth Circuit, to clearly pronounce these aspects of Minnesota common law.

The action in this case concerns the statute of limitation and the controversial arena of “recovered memory.”  In this case, Mary Lickteig has alleged that she did not recover memory of traumatic childhood sexual abuse by her older brother, Robert Kolar, until her adulthood as she was going through a divorce, arguably beyond the “six years of the time the plaintiff knew or had reason to know that the injury was caused by the sexual abuse,” as the statute reads.   Further complicating the matter is the fact that the statute providing the six-year statute of limitation did not exist when the alleged abuse occurred, so there is a question of whether it should be applied retroactively.

Daniel Fritz of Sioux Falls, South Dakota, argued for Mary Lickteig.  John Mack, of Mack & Daby, New London, Minnesota, argued for Kolar.

One of the justices, at oral argument asked Lickteig’s counsel, “Is it your position that, until a memory is recovered, there is no statute of limitation?”  Lickteig’s counsel answered, “Yes.”  This would seem to be a very problematic position, but we’ll have to wait and see how the Minnesota Supreme Court decides.

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