The manipulation of legal remedies to deter suits by survivors of childhood sexual abuse

Northwestern University Law Review

Volumn 92, Issue 4, 1998, Pages 1481-1498

  Bowman, Cynthia Grant ^a  

^a NONE

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EID: 0346541828     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (71)

1. See, e.g., Mary R. Williams, Suits by Adults for Childhood Sexual Abuse: Legal Origins of the "Repressed Memory" Controversy, 24 J. PSYCHIATRY & L. 207, 215-18 (1996).
2. At least 25 states provide by statute for some type of delayed accrual of a sexual abuse action, of which 16 permit Type I discovery. See id. at 216. Other states provide an extended period of time to sue with no delayed accrual. See CONN. GEN. STAT. ANN. § 52-577d (West 1991); GA. CODE ANN. § 9-3-33.1 (Michie Supp. 1995); IDAHO CODE § 6-1701-1705 (1990); LA. REV. STAT. ANN. § 2800.9 (West Supp. 1997); TEX CIV. PRAC. & REM. CODE ANN. § 16.0045 (West 1997).
3. A most recent example is the movie made from Jane Smiley's award-winning book, A THOUSAND ACRES (Touchstone Pictures 1997), which sets the story of King Lear into the context of repressed memories of childhood sexual abuse in modern-day Iowa.
4. Examples of organizations that focus on these issues are, among others, the Marilyn Van Derbur Institute, Inc., the National Coalition against Sexual Assault, Survivor Connections, Inc., and the Linkup (Survivors of Clergy Sexual Abuse, Inc.).
5. See DANIEL BROWN ET AL., MEMORY, TRAUMA TREATMENT AND LAW 154-211 (1997).
6. When one of Father Porter's victims began to remember the abuse in 1989, he was able to obtain confirmation not only from the perpetrator himself but also from other victims who came forward after the case received media attention. See ELINOR BURKETT & FRANK BRUNI, A GOSPEL OF SHAME: CHILDREN, SEXUAL ABUSE, AND THE CATHOLIC CHURCH 3-9, 11-21 (1993). A similar case involved Brown University Professor Ross Cheit and other victims of abuse by a boys' choir camp director, of which multiple corroboration was obtained 25 years after Cheit remembered the events. See Miriam Horn, Memories Lost and Found, U.S. NEWS & WORLD REP., Nov. 29, 1993, at 52.
7. When one of Father Porter's victims began to remember the abuse in 1989, he was able to obtain confirmation not only from the perpetrator himself but also from other victims who came forward after the case received media attention. See ELINOR BURKETT & FRANK BRUNI, A GOSPEL OF SHAME: CHILDREN, SEXUAL ABUSE, AND THE CATHOLIC CHURCH 3-9, 11-21 (1993). A similar case involved Brown University Professor Ross Cheit and other victims of abuse by a boys' choir camp director, of which multiple corroboration was obtained 25 years after Cheit remembered the events. See Miriam Horn, Memories Lost and Found, U.S. NEWS & WORLD REP., Nov. 29, 1993, at 52.
8. A total of 75 of the 129 women in one study recalled the details of the abuse during follow-up interviews 17 years after it had occurred, and of those 75, 16% reported a significant period of time during which they had forgotten the abuse and then later recovered the memory. See Linda Meyer Williams, Recall of Childhood Trauma: A Prospective Study of Women's Memories of Child Sexual Abuse, 62 J. CONSULTING & CLINICAL PSYCHOL. 1167 (1994).
9. See, e.g., Constance Dalenberg, Accuracy, Timing and Circumstances of Disclosure in Therapy of Recovered and Continuous Memories of Abuse, 24 J. PSYCHIATRY & L. 229 (1996).
10. See, e.g., SUSAN FALUDI, BACKLASH: THE UNDECLARED WAR AGAINST AMERICAN WOMEN (1991).
11. See ALBERT P. BLAUSTEIN & CLARENCE CLYDE FERGUSON, JR., DESEGREGATION AND THE LAW: THE MEANING AND EFFECT OF THE SCHOOL SEGREGATION CASES 249 (2d ed. rev. 1962).
12. See, e.g., MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961, at 283-300 (1994).
13. See BLAUSTEIN & FERGUSON, supra note 10, at 248.
14. On the history of the FMSF and its founding members, see MOIRA JOHNSTON, SPECTRAL EVIDENCE: THE RAMONA CASE: INCEST, MEMORY AND TRUTH ON TRIAL IN NAPA VALLEY 200 (1997).
15. For example, soon after the verdict in the Ramona case, discussed in Part II infra, readers were able to purchase for $50 the complaint, motions, legal arguments pertaining to duty to a third party, expert testimony, and verdict forms from the case, and were also instructed about obtaining trial transcripts. See, e.g., FMS FOUND. NEWSL. (False Memory Found., Philadelphia, Pa.), Apr. 1995, at 8. A recent newsletter summarizes nineteen cases for which motions and unpublished decisions are available from the FMSF Brief Bank. See FMS FOUND. NEWSL. (False Memory Found., Philadelphia, Pa.), Jan.-Feb. 1998.
16. See M.H.H. v. L.H., 685 N.E.2d 335 (Ill. 1997).
17. See Brief of Amicus Curiae, False Memory Syndrome Foundation, in Support of Appellee, Doe v. McKay (Ill. Dec. 24, 1997) (No. 83094).
18. See State v. Hungerford, 697 A.2d 916 (N.H. 1997).
19. In the interest of brevity, the sodium amytal interview administered to Holly Ramona after her flashbacks but prior to confrontation of her father will not be considered here. See JOHNSTON, supra note 13, at 96-99.
20. For an extended discussion of the history of problems in the Ramona marriage and of Gary Ramona's difficulties at the winery, see id. at 13-75, 134-40, 151-54.
21. Professor Elizabeth Mertz and I have covered these issues at some length in Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. REV. 549 (1996).
22. See id. at 572 n.138, 574.
23. See Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (en banc).
24. See Molien v. Kaiser Found. Hosps., 616 P.2d 813 (Cal. 1980).
25. See Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976) (en banc).
26. See Bowman & Mertz, supra note 20, at 567-74, 577-79.
27. See id. at 585-86.
28. See id. at 587-90.
29. See, e.g., Lindgren v. Moore, 907 F. Supp. 1183 (N.D. Ill. 1995); Sullivan v. Cheshier, 846 F. Supp. 654 (N.D. Ill. 1994).
30. See, e.g., AMERICAN PSYCHOLOGICAL ASS'N, ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT, STANDARD 5.02 (1992); Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996); Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communications Doctrine, 71 YALE L.J. 1226, 1255-58, 1261 app. (1962).
31. See, e.g., 735 ILL. COMP. STAT. 5/8-802 (Michie 1993).
32. See Sullivan, 846 F. Supp. 654
33. See id. at 658.
34. See Heather Lalley, Doctor Acquitted in Repressed-Memory Trial, CHI. TRIB., Apr. 3, 1997, at B8.
35. 678 N.E.2d 50 (Ill. App. Ct. 1997), rev'd 1998 LEXIS 913 (Ill. June 13, 1998).
36. See McKay, 678 N.E.2d at 51-52.
37. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 125, at 931 (5th ed. 1984).
38. See id. at 931-32; Jacob Lippmann, The Breakdown of Consortium, 30 COLUM. L. REV.. 651, 653 (1930).
39. See, e.g., Rodriguez v. Bethlehem Steel, 525 P.2d 669 (Cal. 1974).
40. See, e.g., Dymek v. Nyquist, 469 N.E.2d 659 (Ill. App. Ct. 1984).
41. See, e.g., Dini v. Naiditch, 170 N.E.2d 881 (Ill. 1960).
42. See, e.g., Kunz v. Deitch, 660 F. Supp. 679 (N.D. Ill. 1987) (suing grandparents); Dymek, 469 N.E. 2d 659 (suing therapist).
43. See. e.g., Borer v. American Airlines, 563 P.2d 858, 866 (Cal. 1977) (en banc).
44. See, e.g., Bullard v. Barnes, 468 N.E.2d 1228 (Ill. 1984).
45. See, e.g.. Renslow v. Mennonite Hosp., 367 N.E.2d 1250 (Ill. 1977).
46. As the Sullivan case demonstrated, it is virtually impossible to continue a therapeutic relationship when its very substance has become the subject of public litigation. Sullivan v. Cheshier, 846 F. Supp. at 657-58.
47. The Illinois Supreme Court agreed with the position set forth in this Article - and previously in its author's amicus brief. See Doe v. McKay, 1988 WL 319488 (Ill. June 18, 1998).
48. Complaint, Feld v. Wasser (Philadelphia County, Pa., Ct. of Common Pleas, Mar. 19, 1996) (No. 1374) [hereinafter Complaint, Wasser]. 48 See id. paras. 8-12.
49. See id. para. 13.
50. Complaint, Feld v. Feld (Lackawanna County, Pa., Ct. of Common Pleas, Nov. 19, 1990) (No. 90-CV-6667).
51. Complaint, Wasser, supra note 47, at para. 55.
52. See id. at Counts I-IV. The complaint also included counts for intentional and negligent infliction of emotional distress and invasion of privacy, but the discussion in this Essay is limited to the allegations that sound in malpractice and malicious prosecution; other possible causes of action against attorneys in this situation are discussed by Professor Mertz and myself in Attorneys as Gatekeepers to the Court: The Potential Liability of Attorneys Bringing Suits Based on Recovered Memories of Childhood Sexual Abuse, HOFSTRA L. REV. (forthcoming 1999).
53. See id. at paras. 62-70.
54. See, e.g., Lucas v. Hamm, 364 P.2d 685 (Cal. 1961) (en banc).
55. See, e.g., Pelham v. Griesheimer, 440 N.E.2d 96, 98-100 (Ill. 1982); Guy v. Liederbach, 459 A.2d 744, 749 (Pa. 1983).
56. For a description of the doctors' campaign, see Sheila L. Birnbaum, Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions, 45 FORDHAM L. REV. 1003 (1977).
57. See I RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE § 6.10, at 419-22 (4th ed. 1996).
58. On November 12, 1993, Steven Cook filed a lawsuit alleging he had been sexually abused by Cardinal Joseph Bernardin and another priest from 1975 to 1977. In February 1994, Cook retracted the charges against Bernardin, but reached an undisclosed settlement with the Archdiocese of Cincinnati and the other priest. Cook and Bernardin later met privately and Cook apologized for his accusations against Bernardin. See Andrew Herrmann, Bernardin's Accuser Dies; Cook Charge May Have United Local Catholics, CHI. SUN-TIMES, Sept. 22, 1995, at 9, available in 1995 WL 6672325.
59. See I MALLEN & SMITH, supra note 57, § 6.20, at 456-58.
60. See, e.g., Berlin v. Nathan, 381 N.E.2d 1367, 1372 (Ill. App. Ct. 1978); Spencer v. Burglass, 337 So. 2d 596, 599 (La. Ct. App. 1976). Apparently only Pennsylvania has altered the common law rule by statute in this respect. See 42 PA. CONS. STAT. ANN. § 8351 (West 1983 & Supp. 1997).
61. Spencer, 337 So. 2d at 600.
62. In the words of the Michigan Supreme Court, "[a] lawyer is entitled to accept his client's version of the facts and to proceed on the assumption that they are true absent compelling evidence to the contrary." Friedman v. Dozorc, 312 N.W.2d 585, 605 (Mich. 1981).
63. See I MALLEN & SMITH, supra note 57, § 6.6, at 411; John W. Wade, Frivolous Litigation: On Frivolous Litigation: A Study of Tort Liability and Procedural Sanctions, 14 HOFSTRA L. REV. 433, 454 (1986).
64. See I MALLEN & SMITH, supra note 57, § 6.6, at 411; John W. Wade, Frivolous Litigation: On Frivolous Litigation: A Study of Tort Liability and Procedural Sanctions, 14 HOFSTRA L. REV. 433, 454 (1986).
65. See Pelham v. Griesheimer, 440 N.E.2d at 100; see also ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY Canon 5 (1980) (duty to exercise independent professional judgment on behalf of a client); Canon 7 (duty to represent client zealously within the bounds of the law).
66. See. e.g.. Weaver v. Orange County Superior Court, 156 Cal. Rptr. 745, 751-52 (Cal. Ct. App. 1979).
67. Id. at 752.
68. Friedman, 312 N.W.2d at 593.
69. See Wade, supra note 63, at 457-68.
70. See I MALLEN & SMITH, supra note 57, § 10.3, at 651.
71. See, e.g., Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626, 629 (Tex. 1992) (affirming award of statutorily authorized attorneys' fees and expenses in a case involving removal of a minor child from the home based on allegations of abuse).