Dissociative Amnesia Does Not Toll the Statute of Limitations

Posted on by Daniel Baurer in Litigation.

Note to reader: This blog does not name any of the parties in the lawsuit, even though the reported opinion does.

During a hospitalization in January, 2014 at an inpatient trauma disorders unit for depression and suicidal ideation, R.A. remembered the sexual abuse she suffered at the hands of her father during her childhood, which was between 29 to 47 years earlier. This, in turn, triggered a similar reaction in R.A.’s two sisters, both of whom also allege that they were sexually abused as children by their father.

In February, 2014, the three sisters reported the alleged sexual abuse to the police. The police conducted an investigation and indicted the father.  Criminal proceedings are still pending.

In December, 2014, the sisters sued their father for (i) intentional infliction of emotional distress, (ii) assault, (iii) battery, and (iv) negligence. The father sought to have the lawsuit dismissed arguing that the statute of limitations ran three years after each of his daughters had attained the majority age of 18, which was 1975, 1979 and 1987, respectively.[1] The Circuit Court of Montgomery County agreed that it was too late for the sisters to bring this lawsuit and granted the father’s motion.

The sisters appealed the decision on a theory that they did not discover the sexual abuse until January, 2014, which essentially suspended the running of the statute of limitations. They argue that they suffer from “dissociative amnesia” caused by the traumatic abuse they had suffered. They define dissociative amnesia as a condition involving “a reversible memory impairment in which memories of personal experience cannot be retrieved in a verbal form (or, if temporarily retrieved, cannot be wholly retained in consciousness).”

The intermediate appellate court looked to Doe v. Maskell, 342 Md. 684, 679 A.2d 1087 (1996) as precedent. Maskell is a case in which the Maryland Court of Appeals had to determine whether the “discovery rule” for a cause of action applies to cases of repressed and recovered memories. Critical to the high Court’s determination was the distinction between “forgetting” and “repressing” because “[t]o permit a forgetful plaintiff to maintain an action would vitiate the statute of limitations and deny repose for all defendants.” Id. at 692, 679 A.2d at 1090.  The Court of Appeals reviewed expert testimony and consulted numerous scientific journals (presented by both parties), but was not convinced that “repression exists as a phenomenon separate and apart from the normal process of forgetting.” Id. at 695, 679 A.2d at 1092. Rather, it found that the two are “indistinguishable scientifically” and should therefore be treated the same legally. The Court held that the “the mental process of repression of memories of past sexual abuse does not activate the discovery rule.” Id.

Here, the sisters argued that the science has changed significantly since the Court’s 1996 holding. They argued that if the Court were to now consult the scientific literature, it would find that dissociative amnesia is clearly distinguishable from ordinary forgetting.

In affirming the Circuit Court’s dismissal of the sisters’ claims because of the statute of limitations, the Court of Special Appeals did not dispute the advances made by the scientific community in the last 20 years. It rather stated its role as an intermediate court and invited the Court of Appeals to revisit the issue (and its holding in Maskell) or for the Maryland legislature to change the law.

For now, the statute of limitations for sexual abuse in Maryland is 7 years after attaining the age of majority. This limitation is upheld regardless of whether the victim suffered from a psychological phenomenon that blocks one’s ability to recall an event as traumatic as sexual abuse if the triggering event that ignites the victim’s memory recall occurs after the 7 years have passed.

[1] In 2002, the Maryland General Assembly extended the time to 7 years after attaining the age of majority for civil claims arising from childhood sexual abuse.