UCLA UCLA Women's Law Journal Title Child Sexual Abuse, the Delayed Discovery Rule, and the Problem of Finding Justice for Adult-Survivors of Child Abuse Permalink https://escholarship.org/uc/item/00v1d9tm Journal UCLA Women's Law Journal, 12(2) Author Wilson, Elizabeth A. Publication Date 2003 DOI 10.5070/L3122017762 Peer reviewed eScholarship.org Powered by the California Digital Library University of California ARTICLE CHILD SEXUAL ABUSE, THE DELAYED DISCOVERY RULE, AND THE PROBLEM OF FINDING JUSTICE FOR ADULT- SURVIVORS OF CHILD ABUSE Elizabeth A. Wilsoni ABSTRACT This Article considers the statutes and judicial decisions that extend the use of the delayed discovery rule to adult sur- vivors of child sexual abuse. Use of the rule in such cases has been criticized as opening the door to suits founded on the scientifically-controversial notion of repression, but increas- ingly the rule has been used in cases where the victim always remembered the abuse but did not connect it with her symp- toms. Given this extension of the rule's use, this article ex- plores the rationale for restricting it only to cases involving victims of sexual abuse. The article argues that while child sexual abuse is often regarded as "unique" and "different," and thereby warranting "exceptional" legal treatment, using the rule only in sexual abuse cases reinforces a cultural narra- tive linking child sexual abuse to a wide range of psychopatho- logical symptoms while underestimating, if not totally ignoring, the malign consequences other forms of abuse and neglect have on children's development. This article examines the strengths and weakness of the justifications that have been implicitly and explicitly advanced for the "exceptionalism" surrounding child sexual abuse in use of the discovery rule and traces it to the social movement on behalf of adult survivors of child sexual abuse. Deeper roots lie in the broad cultural 1. B.A. University of Pennsylvania; Ph.D., Comparative Literature and Liter- ary Theory, University of Pennsylvania, 1988; J.D., Harvard Law School, 2003. As- sistant Professor, Yale University 1987-1995; Bunting Institute-Children's Hospital Fellow in Domestic Violence, 1995-1996; Visiting Professor, Gender Studies, Hum- boldt University, Berlin, 1997-1999. UCLA WOMEN'S LAW JOURNAL [Vol. 12:145 identification of childhood with sexual innocence and in the close connection that has historically been made between in- appropriate sexual activity in childhood and physical and mental deviations in adulthood. Based on evidence indicating that other forms of child maltreatment may have detrimental consequences to children comparable to those arising from child sexual abuse, this Article proposes that the discovery rule would also be suitable for cases involving child physical abuse. 2 TABLE OF CONTENTS INTRODUCTION ............................................ 147 I. HISTORICAL CONTEXT: THE INCEST SURVIVOR MOVEMENT AND LEGAL DISCOURSE .............. 154 Background: Child Abuse Reporting Laws ..... 156 Emergence of the Feminist-Psychotherapeutic Normative Narrative ........................... 158 The Discovery Rule and Sexual Abuse ......... 164 II. INCORPORATING THE FEMINIST- PSYCHOTHERAPEUTIC NARRATIVE: CASE LAW AND STATUTES .......................................... 169 Tyson v. Tyson ................................. 169 Type I and Type II Cases ...................... 171 The Type I Plaintiff ............................ 177 The Effect of Legislation ....................... 178 Type H Cases and the Recovered Memory Controversy .................................... 183 Type I Cases ................................... 185 Incentives ...................................... 188 III. A NEW TORT ACTION: JUSTIFICATION AND CRITIQUE OF THE DOCTRINE ...................... 191 Justificationsfor the Statutes ................... 193 2. Martha Minow and Michael Meltsner closely read earlier drafts and pro- vided detailed, helpful feedback. The author gratefully acknowledges their assis- tance. A version of this Article was presented at the conference of the Association for the Study of Law, Culture, and the Humanities in March, 2002, Philadelphia, PA, and benefited from commentary. Revisions were supported by a grant by the Mark DeWolfe Howe Fund at Harvard Law School. This article was in the final stages of publication when the Supreme Court ruled in Stogner v. California, No. 01-1757 (Decided June 26, 2003), that a law extending the criminal statute of limitations on sexual abuse is an unconstitutional violation of the Ex Post Facto Clause when applied to revive a previously time-barred prosecu- tion. This decision makes it more likely that the pending sexual abuse cases involv- ing Roman Catholic priests will be disposed of by the civil processes discussed in this article. 2003] SUING FOR LOST CHILDHOOD The First Justification: Repression .............. 195 The Second Justification: Moral Reprehensibility ................................ 198 The Third Justification: Harm .................. 203 V iolence ................................... 210 Emotional Abuse .......................... 213 N eglect .................................... 213 IV. SUING FOR LOST CHILDHOOD: THE CULTURAL CONTEXT .. .......................................... 217 Sexual Abuse and the Idea of Childhood....... 217 Historical Development of Statutory Rape L aw ............................................ 221 Childhood Sexuality and Psychopathology ..... 224 Anti-Masturbation Literature .............. 225 Seduction Theory .......................... 229 Psychoanalysis ............................. 231 Sexuality and Middle-Class Self-Identity ........ 234 V. THE FUTURE OF THE DOCTRINE ................... 239 Alternative Narratives .......................... 242 CONCLUSION ................................................ 249 INTRODUCTION This article examines the use of the discovery rule and ex- tended statutes of limitations in civil child sexual abuse cases. In the immediate aftermath of September 11th, child sexual abuse appeared to be one of those instantly-irrelevant issues that made the 1990s seem, overnight, dated and inconsequential. Day-care scandals, satanic ritual abuse, age regression therapy, malpractice charges, sensational clashes of expert witnesses in well-publicized trials, a prolific outpouring of professional literature on the na- ture of memory, public confessions by celebrities-all these had been caught up in the most controversial legal issue of the last two decades of the twentieth century, as legislators and courts introduced many exceptions to the law's usual practices and safe- guards in an effort to make the legal system more accessible to adult survivors of child sexual abuse, especially those with "re- pressed" or "recovered" memories. Between 1987 and 2000, hundreds of lawsuits were filed by adult survivors of child sexual abuse with such memories seeking to overcome the statute of limitations and win damages for harms inflicted by abuse occur- ring many years before in childhood. Such suits generated enor- mous amounts of controversy and publicity, and engaged a vast UCLA WOMEN'S LAW JOURNAL [Vol. 12:145 number of lawyers, psychologists, advocates, and victims in a life- or-death struggle for vindication. Though the shock of a major terrorist attack seemed to put the life-or-death quality of that struggle into a new perspective, by December 2002 the issue had returned with a vengeance as a new crisis gripped the Roman Catholic Church. If September 11th did not overshadow the issue of child sex- ual abuse-indeed, if it refocused attention on the vulnerability of the young and stirred up memories of abuse that might other- wise have laid quietly-it did serve to effect a break in the legal and social discourse on child sexual abuse. Since then, we have not heard a great deal about the issue that plunged the nation into controversy in the 1980s and 1990s: the debate about whether memories of child sexual abuse could be "repressed" from consciousness and then reemerge, years later, relatively in- tact. The recent priest cases have not (yet) rekindled this contro- versy, probably because evidence of the institutional evasions of the church has been clear and compelling. Nevertheless, one name has been conspicuous in its absence from recent discus- sions of the Catholic Church-namely, that of Chicago Cardinal Joseph Bernardin. In early 1994, a Philadelphia man accused the popular and liberal Bernardin of sexually abusing him, and the nation recoiled in shock. However, the man ultimately retracted his accusations, saying that his memories were probably false.3 In retrospect, it is clear that the Bernardin episode marked a turning-point in the anguished controversy about recovered memories. At the time of the accusation, the papers were as rife with allegations against priests as they are today. But soon, criti- cism began to mount, and by the end of 1994, the idea that mem- ories could be repressed and then accurately recovered had been dealt a severe blow. In this second wave of priest abuse cases, recovered memo- ries have been entirely absent as a theme, but many of the claims against priests that recently have come to light depend on the same legal doctrine that brought recovered memory cases into courtrooms-use of the discovery rule in child sexual abuse cases to overcome the statute of limitations and permit bringing suit long after the abuse has occurred. The claim that recovered memories could be repressed from consciousness until adulthood 3.