Zimmer, Duncan & Cole

Courts Help for Abuse Victims Has Limits

The recent scandal at Penn State sheds light on a subject that nobody likes to talk about.  The victims endured unspeakable acts at the hands of a trusted adult. Unfortunately, this is not a rare tragedy. Instead, childhood abuse is something that has endured for generations, in every corner of this nation, including here in South Dakota. A sixty-four year old man broke four decades of silence to tell his story in Iron Wing v. Catholic Diocese of Sioux Falls (2011 S.D. 79).

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“D.Z.” Iron Wing spent eleven years as a student at the Catholic boarding school in Marty, South Dakota, beginning in the mid-1950’s. More than forty years after graduating, he joined with several classmates in a lawsuit against a priest, a nun, their school, and the Church.  Each alleged sexual abuse.
Mr. Iron Wing testified that his abuse began at age ten. He explained that the dorm matron, Sister Poitra (now deceased), would bring him into her room while the other children were sleeping and fondle him for several minutes.  He estimated that this happened around a dozen times over the next three years. He later moved into the high school dorm, and he recounted similar things happened with a priest, on eight or nine occasions:
  “He sat down beside me and he started to like rub my forehead.  He told me I was going to go to sleep. He told me when I woke up I wasn’t going to remember anything.
“But I didn’t go to sleep. I just closed my eyes because I was too afraid to go to sleep.  But once he thought I was asleep, then he took my shorts off of me.” 
As a junior in high school, Mr. Iron Wing finally summoned the courage to tell his parents.  Their reaction, however, was not what he expected. His stepmother “walked up beside me and she slapped me alongside the head. She said, ‘How dare you talk about those people, those priests, those nuns, how dare you talk about them like that? Those are people of God! They don’t do those kinds of things!  Who are you to go and spread lies?’”
After that, Mr. Iron Wing never told anyone else of the abuse until filing his lawsuit in 2008.
The Church (and the other defendants) filed a motion to dismiss, alleging the suit was untimely. 

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All legal claims have a shelf life.  If the lawsuit is not started before the deadline, it will be barred forever, even if the claim has merit. For child sex abuse cases in South Dakota, the time limit for bringing a lawsuit is three years.  However, the time is not measured from the date the abuse occurred.  Instead, the three-year clock begins running when victims are put “on notice” of the connection between the abuse and their injury. To determine this date, a court inquires when a “reasonably prudent person” would have investigated and discovered the connection.
The “reasonably prudent person” is a hypothetical standard created in the law.  It’s like a fictitious neighbor who acts the way ordinary people do:  not holy or perfect, but with a reasonable amount of skill and care in their daily lives. Under the law, our behavior is often judged according to what this person would do if he or she were in our shoes.  In car accidents we ask what a reasonable, careful driver would do.  In medical malpractice cases we ask what a reasonable, careful doctor would do.
Here, the Court asked whether a reasonable person in Mr. Iron Wing’s situation would have connected the dots between his abuse and the injury more than three years before he filed this lawsuit. The Court keyed in on the fact that for four decades Mr. Iron Wood remembered everything that had happened and continued to harbor tremendous hatred and anger toward the Church. Even though his depression and post-traumatic stress disorder weren’t diagnosed until very recently, the Court decided this chronic anger and resentment would have caused a reasonable person to investigate and act sooner. 
 His case was dismissed.

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 Mr. Iron Wing’s case reminds us why childhood abuse can go unpunished and unnoticed:  because of the fearful silence of children and the complicit silence of adults. If you suspect abuse, the time to speak out is right now.  Child abuse is a felony, and in certain cases, concealing it is also a felony.
Make a plan to contact law enforcement, and use an attorney if you are unsure of what to do.  Find a friend, counselor or pastor you trust and begin the dialogue. 
Do something to end the hurt.