Dismissals common in repressed memory cases
by Michelle Lore
Statute of limitations difficult to overcome.
A recent decision from the Minnesota Court of Appeals exemplifies the difficulties involved in pursuing sex-abuse lawsuits based on acts that occurred decades earlier.
Under the “delayed-discovery statute,” Minn. Stat. sec. 541.073, a personal injury action for damages caused by sexual abuse must be commenced within six years of the time the plaintiff knew or had reason to know that the injury was caused by the abuse. The statute of limitations can be tolled if the victim suffered from a disability such as infancy or repressed memory.
Plaintiffs’ attorneys contend that courts are misinterpreting the statute and imposing impossible standards on plaintiffs who repress their memories of abuse.
“The appellate court decisions and the way they are interpreting the [delayed discovery] statute are really having a negative impact on victims,” said Minneapolis attorney Gus Nicklow. “In my opinion, courts are applying a different standard than what the statute says.”
The plaintiff in last week’s unpublished decision — Britten v. The Franciscan Sisters, et al. — alleges that she was sexually abused by a nun during weekly piano lessons that took place between 1964 and 1967.
The plaintiff, who was six years old when the alleged abuse began, contends that she repressed the memories and didn’t recover them until 1989, when she looked at some old music-theory notes. She did not file suit, however, until 2006, several years after her friend and sister also recalled being abused.
The plaintiff argued that a victim cannot know or have reason to know that he or she has been abused until the victim understands that the acts that constituted the abuse were wrongful and thus abusive. She also asserted that psychological coping mechanisms, like shame, guilt and self-blame and conditions like post-traumatic stress disorder are mental disabilities that toll the statute of limitations.
The Court of Appeals stressed that the standard to be applied in repressed memory situations is an objective one — what a reasonable person knew or had reason to know.
“[The plaintiff] essentially asks us to apply a subjective standard, based upon her own mental and emotional state, including her post-traumatic-stress disorder and the presence of coping mechanisms such as self-blame, in order to determine whether she should have known that she had been a victim of sexual abuse,” wrote Judge Heidi Schellhas. “Such a standard has no basis in the law.”
The court determined that the evidence shows that the plaintiff knew or should have known that she’d been sexually abused when she recalled the abuse in 1989.
St. Paul attorney Jeffrey Anderson, who represents the plaintiff, told Minnesota Lawyer that it was only after the plaintiff’s sister revealed that she too had been abused that the plaintiff realized that what had happened to her was not her fault, and she was finally able to break her silence and confusion.
“She was not psychologically able to go forward until that point in time,” he said.
St. Paul attorney Thomas Wieser, who represents the defendant, said that a well-reasoned decision by the trial court judge made review by the Court of Appeals much easier. It was clear at oral argument that the court understood the legal issues and the statute involved, he said.
Knowledge of injury
Plaintiffs’ attorneys contend that courts are applying an incorrect standard to the delayed-discovery statute.
Nicklow explained that the statute does not say that an action must be commenced within six years of the date the plaintiff knew or should have known she was sexually abused. It states it must be brought within six years of the date when he or she knew or should have known “the injury was caused by the abuse,” he stressed.
“It seems as though the courts are saying if you knew you were abused and it’s been six years, then it’s too late to file a claim,” said Nicklow. But if someone has no idea that her injuries — psychological problems or post-traumatic stress disorder, for example — were caused by the sex abuse, she should still be able to bring a claim, he said.
St. Paul attorney Thomas McEllistrem agreed that if the plaintiff knew about the abuse on a certain date, the tendency is for courts to use that date to begin the statute of limitations.
“If there is clear evidence that the plaintiff articulated to someone that she had been subjected to molestation, courts are viewing that almost as a trump card,” he said.
Anderson praised the Legislature for enacting the delayed-discovery statute in 1989, noting that it was a model for states across the country. But the Supreme Court “turned the law upside down” in 1996 in Blackowiak v. Kemp, he said. (The Blackowiak court concluded that the concepts of sexual abuse and injury are inseparable, so that as a matter of law one is injured if one is sexually abused.)
“Minnesota is now the safest place in the country for offenders because of how appellate courts have been interpreting the statute,” said Anderson.
An objective decision
Plaintiffs’ attorneys said that the use of an objective, reasonable person standard in determining whether one should have known that he or she was injured also makes these cases difficult.
“The court set the bar so high by using an objective standard that no one can get by it,” said Anderson.
Nicklow questioned what category of “reasonable person” is being applied — a reasonable person who’s been abused or a reasonable person who’s not been abused? “It should be a ‘reasonable person’ that’s been abused,” he said.
It’s easy for someone who has not been sexually abused to stand back and say that a plaintiff should have known her injury is the result of sex abuse, said Nicklow. “But nobody knows what that person has gone through.”
McEllistrem, who defends and pursues sex abuse cases, believes the standard is fair. “It has to be an objective test,” he said. “If it was subjective, then you’d not ever be able to raise a statute of limitations defense.”
However, McEllistrem added, if the plaintiff can come up with strong evidence — like credible expert testimony — others in her situation also would not have connected the dots between the abuse and the injury, it should be up to a jury to decide if the statute of limitations has run.
Wieser acknowledged that sex-abuse cases involve a lot of emotion, and that in many cases individuals have suffered real pain. But often the facts go back 20, 30 or 40 years, he said, and now parties are dealing with entities that had no connection with what might have happened to a plaintiff. There is often no one other than the victim who can speak to what happened so long ago, he added.
“That adds to the complexity of the situation,” Wieser said. It makes these cases difficult to defend and it’s the “overriding reason” we have statutes of limitation, he added.
