“When I was younger, I could remember anything, whether it had happened or not.”
-Mark Twain

Throughout the last two decades, courtrooms have been deluged with litigation regarding allegations of repressed memories of childhood sexual abuse, leading to considerable debate as to whether the concept itself, not to mention the actual memory, is real or fantasy.

Often, this “phenomenon” of “repressed memory” begins when a patient with minor mental health problems meets with a therapist.  The patient is asked by the therapist to “travel back to their childhoods and look for what may have happened there because they say there must be a cause.”  (Loftus and Ketcham 1994).1 Sometimes, however, people claim to have just instantly remembered a traumatic event from their past without the aid of therapeutic techniques.  Books such as The Courage to Heal and Secret Survivors have been published and sold in multitudes providing checklists to determine whether one could have been an incest survivor.  (Loftus and Ketcham 1994).2  These checklists describe conduct and symptomatology that are incredibly common and the majority of the entire population likely experiences at least some of these symptoms.3  Symptoms listed in these books as being indicative of having survived childhood incest include being afraid of the dark and disliking being alone.Although there have been studies both in support of the existence of repressed memories and against their existence, researchers agree  that there is no way to discern a real memory from a false memory without additional corroborating evidence.5


The lack of empirical evidence on these so-called “repressed memories,” creates a rather interesting legal dilemma facing defense attorneys today.  Attorneys are forced to defend against memories that cannot be proven true or false and that are only now “remembered” long after the alleged abuse.  The role of the therapist is different from the role of the attorney.  Therapists do not question the truth of what their patients tell them.  Therapists even admit that seeking the validity of these recovered memories is not part of the rehabilitation of the patient.6  The goals of therapists in treating their patients are immensely different from the goals of the parties involved in litigation.  Do these “repressed memories” have any place in the legal arena if there is no way to prove their validity and knowing the inaccuracies of memories in general?  Should this “phenomenon” really be treated differently than normal forgetting for the purpose of circumventing statutes of limitation even though there is no conclusive, scientific evidence that these “repressed memories” are in fact different from “normal” forgetting?  Dr. Elizabeth Loftus suggests in her article, Memory Faults, “we might start by recognizing that a reconstructed memory that is partly fact and partly faction might be good for many facets of life, but inadequate for legal purposes where very precise memory often matters.”7


How Accurate is a “Normal” Memory?

 “Happiness is nothing more than good health and a bad memory.”
-Albert Schwietzer

Before discussing repressed memories, the accuracy of the human memory in general should be addressed.  Memories, although often held with conviction, are actually often inaccurate.  A chilling illustration of just how inaccurate the human memory can be is an initiative known as the “Innocence Project.”  By the year 2002, the 100th person was freed from prison after DNA testing disproved alleged “eyewitness accounts.”8  This 100th person, Larry Mayes, was convicted of raping a gas station cashier and served 21 years in prison.9  The victim twice failed to pick Mayes out of a line-up, but subsequently the victim identified Mayes as her attacker.10  DNA evidence proved that this woman’s recollection that Mayes was her attacker was simply not possible.11  The Innocence Project is a group of attorneys, journalists, and institutions that work to prove the innocence of many people who were wrongfully convicted based on faulty memory through scientific (often DNA) evidence.12  Eyewitness identifications put approximately 200 people per day in jail.13  The high rate of error regarding eyewitness identifications, have led law enforcement officials across the country to enact guidelines requiring that interviewers only ask witnesses open-ended questions because of how vulnerable a memory could be to a leading question.14  These changes and recommendations are an indicator that our criminal justice system has recognized that memory is highly malleable.15


The human memory is extremely susceptible to “post-event information.”16 Dr. Elizabeth Loftus has conducted several studies on memory and is considered a leader in this field.17  People integrate what they have observed and experienced with anything they are told about the event later and then create one “seamless” memory from both sources of information.18  One study conducted by Loftus showed people footage of an automobile accident.19  Half of these people were then asked how fast they thought the cars were going when they hit each other and the other half was asked the same question but with the word “smashed” as opposed to “hit.”20  The changing of this single word led the “smashed” group to estimate higher speeds and to claim to have seen broken glass, even though there was no broken glass at all.21  This type of influence can occur every day via media broadcasts of events and through suggestive or leading questioning techniques.


Loftus, who has been studying memory for over 30 years, describes memory as “utterly malleable, selective, and changing.”22 Based on her studies, Loftus states that particularly if a memory has had a chance to “fade,” that memory is more likely to be altered by “misinformation.”23 Since memory is ever-changing and constantly being influenced by our surroundings according to Loftus, the question arises whether repressed memories are somehow immune to these characteristics of “normal” memories.24


One real-life example of normal memory and its inherent inaccuracies is the case of Bobby Fijnje.  Fijnje was a teenager who spent considerable time volunteering with young children at his church.25  His personal nightmare began in 1989 when a care-worker expressed some concerns that a 3-year old seemed afraid of him.26  Following the revelation, a psychologist became involved who believed that this fear was motivated by abuse.27  A social worker was called to investigate, but this social worker found that there was no evidence to warrant a further investigation.28  Subsequently, following therapy sessions with the psychologist, the child accused Fijnje of molesting her and, soon after, other children from the church came forward with similar accusations.29  Some of the children who accused Fijnje were diagnosed with having physical signs of sexual abuse.30  Fijnje was arrested and after hours of questioning, he confessed.31  Although he was only fourteen years old, he was charged as an adult with capital sexual battery, which carried a mandatory life sentence in maximum security with no chance of parole.32  By this time, there were twenty-one children claiming that Fijnje had molested them.33  The claims by these children, however, were growing increasingly unrealistic.34  The claims ranged from cannibalism to children actually flying around.35  Prosecutors continued to proceed against Fijnje despite the outrageous nature of some of the claims.36


Fijnje refused to plead guilty and accept an offer from the state.37  At trial, Fijnje’s defense counsel presented results of experiments with children demonstrating how inaccurate and malleable their memories can be.38  Additionally, the defense called as a witness a gynecological specialist who refuted the alleged “signs of physical abuse,” testifying that these findings could actually be normal genital variations.39  The defense also focused on there being no tape of Fijnje’s confession and that there had not been a sworn statement taken.40  Fijnje acknowledged his confession, but stated it was given only because he wanted to get out of that interrogation room.41  Also, the defense pointed out that Fijnje was diabetic and had not taken his insulin the day of the confession nor had he eaten in several hours.42  Fijnje was ultimately acquitted on all counts and although investigators continued to follow up on the allegations, no further charges were ever brought.43


The case of Bobby Fijnje is only one of many examples where memories are proved to be inaccurate, even when they are not alleged “repressed memories.”  The jurors in the Fijnje case wrote a letter to Janet Reno explaining their verdict,


“It is our hope that this case will lay the foundation upon which a set of policies and guidelines are built so that when cases of abuse, especially child abuse, are alleged, the program in place will allow for appropriate questioning and investigation by the police, physicians and child psychologists so as to drastically reduce the chances of conflicting testimony and charges of contamination that can and will raise reasonable doubt.”44


What is “repressed memory”?

“The past is malleable and flexible, changing as our recollection interprets and re-explains what has happened.”
-Peter Berger


The concept of “repressed memory” has evolved over time.  The earliest appearances of the notion of “repressed memory” date back to Freud.  (Ziskin 1995).45  The Freudian concept of “repressed memory” viewed repression of memory as a defense mechanism.46  Freud believed that traumatic events could be kept out of a person’s conscious awareness.47  Freud believed that this could be done either consciously or unconsciously as a way of avoiding painful memories that would be damaging to our egos.”48


Today, however, the notion of repressed memory is considered a process performed completely unconsciously; this process is arguably not the same as “normal forgetting.”49  The person will supposedly not realize that an event has been forgotten or is missing from his or her memory at all, but then years later this memory may re-surface causing psychiatric problems for the person.50  This “modern” notion of repressed memory being completely unconscious also contends that these memories when they are later recovered can be “exhumed in their pristine or veridical form.”51  Some psychiatrists believe that if a person “repressed” painful memories, that person will experience other manifestations of unhappiness and discontent in his or her mental health later in life.


These therapists believe that memories must be “recovered” or “re-experienced” in order for the patient to heal.52  They seek to “recover” these memories through a number of techniques: hypnosis, journaling, and guided imageries.53  If and when a patient “recovers” a memory, these therapists do not seek to verify if these memories are true or accurate, because they do not believe that is the goal of the therapy.54  Rather these therapists often interpret any change in the patient’s symptoms as support of their theory that accepting this repressed memory is necessary.55  For example, if the patient improves, the therapists believe that accepting the memory is working to heal the patient, if the patient worsens, the therapist suggests that the patient is “working through this new information,” and if the patient does not change at all, these therapists would label the patient as being “resistant” or “in denial.”56


Subscribers to this theory of repressed memory contend that it is a completely different process than merely forgetting an event or choosing not to think about it.57  Nevertheless, Alan Baddeley, a distinguished memory researcher, concluded in his studies that, “the extent to which the patient is totally unable to access the stressful memories and to what extent he/she chooses not to is very hard to ascertain.”58


Dissociative Amnesia


As the debate over “repressed memories” has raged on, supporters of this theory steadfastly believe that “repressed memories” are real.  The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) includes the term, “Dissociative Amnesia,” which is described as, “an inability to recall important personal information usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness.”59


Although supporters of these recovered memories claim that they are similar to “dissociative amnesia,” other experts argue that these recovered memories are not the “dissociative amnesia” that was anticipated in the DSM-IV, which is more suitable, they argue, for war-time memories and such.60  Even though a majority of clinicians believe in the validity of “dissociative amnesia” (what they consider a “repressed memory”), the opponents of repressed memory state that creating a diagnostic category without scientific validations is dangerous.61  These opponents contend that “each scientific claim should prevail or fall on its research validation and logic.”62  Studies have been conducted on both sides of the issue to attempt to uncover the truth of this phenomenon known as “repressed memory.”


What Do the Studies Show?


It doesn’t matter who my father was, it matters who I remember he was.”
-Anne Sexton


While the debate regarding “repressed memory” is tearing through therapy offices and courtrooms alike, the very nature of “repressed memory” makes it impossible to be either conclusively and scientifically confirmed or denied.


Supporters of “repressed memory” syndrome rely on clinical observations and case studies as “proof” of its existence.63  One such study, conducted by Linda Meyer Williams, involved Williams interviewing young girls who were actually admitted for medical treatment of abuse.64  Several years later, Williams again interviewed the abused girls and found that over one-third of the girls no longer disclosed their childhood abuse.65  Williams believes this result implies that the women had repressed the memory of their sexual abuse.66  The study, however, has been criticized by those opposing the theory of “repressed memory.”67  These people claim Williams should have conducted follow-up interviews with these women to determine why they did not disclose the abuse at the later interview; perhaps these women were just embarrassed or uncomfortable discussing the topic or maybe the women actually just “forgot” in the normal sense the incident or it just did not occur to them to discuss it.68


Another study on “repressed memory” was conducted by Dr. Judith Lewis Herman.69  This study involved women who has been sexually abused as children.70  The women were asked if they had suffered any memory loss relating to the abuse.  Approximately two thirds of the women from the study claimed to have “some” level of memory loss with regard to their incidents of sexual abuse.71  While Herman sees this as implied proof that repressed memory exists, critics point out that while these women admit to having some memory loss, there is no way to know if this is the sub-conscious, involuntary process that “repressed memory” claims to be.72


The researchers who deny the existence of “repressed memory,” have conducted their own studies to help shed light on this issue.73  Since, there really is no way to scientifically disprove this alleged subconscious phenomenon of “repressed memory,” Loftus decided to attack the issue from another angle; she decided to prove how easily a false memory could be implanted and allegedly “remembered” by people.74  Loftus’s study therefore not only attempted to see if people remembered things inaccurately, but also attempted to discover if people remembered things that never happened at all.75  This study attempted to convince a group of adults that as a child, he or she had been lost in a shopping mall and found and returned to his or her parents by an elderly couple.76  This study, nicknamed the “lost-in-the-mall” study, simply asked these people if they remembered this happening and telling  them that their relatives had assured the researchers of the event.77  Approximately a quarter of the study’s subjects “remembered” that they had, in fact, actually been lost in the mall.78


Studies similar to the “lost-in-the-mall” study were later conducted using “memories” of more traumatic events, such as a near-drowning and being rescued by a life-guard.79  In this study, about 37% of the group “remembered” the event which never happened.80  One subject even elaborated on the near-drowning incident with meticulous details surrounding the false memory.81


The very nature of the alleged “repressed memory” phenomenon makes it impossible to reach a universally accepted conclusion.  We are left with clinical observations that show people who allegedly recovered repressed memories and having “forgotten” traumatic events.  On the other hand, we have studies showing how inaccurate memory is and how easily false memories can be implanted and then “remembered.”  None of the studies are able to scientifically or conclusively prove that repressed memory exists as some subconscious defense mechanism; its existence can also not be disproved.  Unfortunately, this uncertainty as to the existence and validity of repressed memories creates new issues for defense attorneys who handle such cases.


The Most Common Issue in Defending Against Alleged
Repressed Memories of Childhood Sexual Abuse


“The difference between false memories and true ones is the same as for jewels; it is always the false ones that look the most real, the most brilliant.”
-Salvador Dali


Aside from a Daubert-type analysis of the admissibility of evidence and testimony regarding “repressed memories,” the most common and significant issue facing defense attorneys involved in a case of alleged repressed memory is the statute of limitation.82  Statutes of limitation are enacted for several reasons including to protect accused from “stale” litigation and because the longer ago an event occurred, the more difficult finding the truth will be (i.e. witnesses die or forget what happened, people have moved or cannot be found, witnesses’ recollections have been affected by post-event information throughout the time period, evidence from that time cannot easily, if at all, be obtained).  If a person normally “forgets” that something happened, and then remembers it after a statute of limitations has run, that person is out of luck and their claim is barred.  Sometimes, however, one can circumvent the statute of limitations by claiming that their memories were not ordinarily “forgotten,” but rather, their memories were “repressed” and since this process of repressions is allegedly subconscious, the statute of limitations should not begin to run until the person is aware of what happened to them.  Despite this rationale, not all states are in agreement on “repressed memories” and the statutes of limitations.  Even the states that allow for tolling of the statute of limitations all seem to have different variations on the basis for the tolling.


There are two general methods around the statute of limitations in a repressed memory case.83  Some states have examined this issue regarding repressed memories under their tolling statutes which allow the time period to toll if the person has a “disability.”84  Some argue that this repressed memory could be considered a type of disability like insanity for the purpose of avoiding the statute of limitations.  The majority of states, however, focus on what has been labeled the “delayed discovery doctrine.”85  The “delayed discovery doctrine” tolls a statute of limitation for a period of time until the alleged victim knows or should have known that he was injured.86  An example is if a surgeon leaves a medical instrument inside of someone, the time period in which to file an action does not begin until the person realizes the malpractice.  Both the disability-type tolling claims and the delayed discovery doctrine are widely used in states across the country, but many states apply the concepts differently.87  Some states ultimately reject both, whereas other states have adopted statutes and have enacted legislation to address the issue.88  Defense attorneys, depending on which state they are litigating in, will be forced to confront the issue of either showing that the repressed memory was not “insanity” as envisioned by the state’s statutes or maintaining that the delayed discovery doctrine should not apply to toll the statute of limitations because perhaps the plaintiff should have known of the act at some earlier time.  If the defense attorneys can find a way, based on their state’s stance on repressed memories and the statute of limitation, to show that the action should be time-barred, then the action would end and a Daubert analysis would never arise.  Again, however, this endeavor may be easier or more difficult depending on which state’s law is being applied.


States’ Views on Repressed Memory and Statutes of Limitations


“Those who cannot remember the past will spend a lot of time looking for their cars in mall parking lots.”
-Jay Trachman


STATE Cases/Statutes dealing with “Repressed Memory” Description of State’s stance on “Repressed Memory”
AL Travis v. Zitzer, 681 So. 2d 1348 (Ala. 1996)Alabama Code 6-2-8 AL code provides for tolling of 3 years when there is a termination of disability (insanity), but this tolling does not apply to “repressed memory,” nor does AL’s discovery rule permit tolling for “repressed memories.”
AK Alaska Stat. 09.10.065 May bring action at any time for(1) Felony sexual abuse of minor;

(2) Felony sexual assault;


(3) Unlawful exploitation of minor


3 year limitation for misdemeanor sexual abuse, assault, incest, or felony indecent exposureARArkansas Stat. § 16-56-130Claims of sexual abuse while minor must be brought within 3 years after discovering the sexual abuse.This may be based on the injured party’s discovery of the effect of the series of acts as opposed to just being based on the first single discovery of an act.AZ  Doe v. Roe, 191 Ariz. 313, 955 P.2d 951 (AZ 1998)(en banc)



Logerquist v. Danforth, 932 P.2d 281 (Ariz. App. 1996)Recognizes “repressed memory.” Discovery rule will allow tolling until the repressed memory is recovered.


Corroborating evidence is not necessary.  But whether discovery rule applies and whether abuse actually occurred is a fact question for the jury.CAEvans v. Eckelman, 216 Cal. App. 3d 1609, 265 Cal. Rptr. 605 (1st DCA 1990)Recognizes “repressed memory.”Action does not accrue until the claimant has discovered or should have discovered the facts establishing the essential elements of his/her cause of action.


The delayed discovery rule applies to toll statute of limitations in child molestation cases.COAyon v. Gourley, 185 F. 3d 873  



Sailsbery v. Parks, 983 P. 2d 137If evidence shows that plaintiff knew or had reason to know of the cause of action (the abuse and the causal connection to the injury), then the statute of limitations is 6 years after the time the plaintiff knew or had reason to know.If claims of repressed memory are brought up and it can be shown that the plaintiff did not know or have reason to know of the problem causing the injury, then the accrual begins when that person first realizes this.CTConn. Gen. Stat. 52-577d


Conn. Gen. Stat. 52-595Sexual abuse cases involving personal injury to a minor (including emotional distress) must be brought within 30 years after that person attains the age of majority. If fraudulent concealment is shown, the cause of action will accrue when the person actually discovers it.DCFarris v. Compton, 652 A.2d 49 (D.C. 1994)




§12-301Recognizes “repressed memory.”Plaintiff is required to establish that his/her repression of any memory of alleged sexual abuse was “blameless.”



Right to maintain the action accrues for the recovery of damages arising out of sexual abuse that occurred while the victim was a minor is 7 years from the date the victim attains the age of 18, or 3 years from when the victim knew, or reasonably should have known, of any act constituting abuse, whichever is later.DEGarcia v. Nekarda, 1993 WL 54491 (Del. Super. 1993), unpublished.  

Cobb v. Halko, 2001 WL 1472683 (Del. Super. 2001), unpublishedApply discovery rule when the injuries are “inherently unknown” to the plaintiff.  Does not apply where plaintiff had no physical disability and/or PTSD that prevents him or her from verbalizing abuse.Where plaintiff did not know nor would have had reason to know with the exercise of reasonable care both the fact of the injury and its cause, the discovery rule applied.FL   

Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000)


Cisko v. Diocese of Steubenville, No. 3D12-1496, 3d DCA, September 4, 2013


Fl. Stat. §95.11(7)Recognizes “repressed memory.”Claims of repressed memory apply to accrual of action.  Action does not accrue until plaintiff’s memory of abuse was restored. (Delayed Discovery Doctrine)


In Cisko, the Third District Court of Appeals clarified that Hearndon does not apply to negligence actions, only intentional tort actions.


Intentional torts based upon on abuse or incest, may be commenced:

–          Within 7 years after reaching age of majority;

–          Within 4 years after injured person leaves the dependency of the abuser; or

–          Within 4 years from time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse

Whichever occurs later

GAM.H.D. v. Westminster Schools, 172 F. 3d 797  


Ga. Code Ann., § 9-3-33.1Discovery rule did not apply in this case (under GA law), the cause of action began to run when attained the age of majority.(This person claimed to have never actually forgotten the incidents)


Action must be commenced within 5 years of date of plaintiff’s majority.HIDunlea v. Dappen, 924 P. 2d 196 (1996)Recognizes “repressed memory.”Applying discovery rule (when person should have or did discover the cause of the injury) is a fact question for the jury.IAIowa Code § 614.8AWhen sexual abuse of a child, the plaintiff, has 4 years from the date of the discovery of both the injury and the causal relationship between the injury and the sexual abuse to bring the suit.IDIdaho Code § 6-1704 






Bonner v. Roman Catholic Diocese of Boise, 128 Idaho 351 (1996)Does NOT recognize “repressed memory”Must bring action within 5 years after child reaches age of majority, or within 5 years after child discovers or reasonably should have discovered the act, abuse, or exploitation and its causal relationship to the injury or condition suffered by the child, whichever occurs later.


In Bonner, brothers who alleged sexual abuse occurred 20 years earlier, respectively suffered “some damage” at the time of the alleged assaults which was sufficient to start the running of the statute of limitations under “some damage” rule, even if the brothers alleged they did not suffer emotional damage until they remembered the abuse 20 years later.ILIll. Ann. Stat. Ch. 735, §5/13-202.2Pedigo v. Pedigo, 292 Ill. App. 3d 831 (1996)




Kuch v. Catholic Bishop of Chicago, 851 N.E. 2d 233 (2006)Recognizes “repressed memory.”In 2011, Illinois statute increased the time to bring an action from 10 years to 20 years after 18.  Also, it increased from 5 years to 20 years the time to bring an action after discovering “both (i) that the act of childhood sexual abuse occurred; and (ii) that the injury was caused by childhood sexual abuse.”


The 1994 version of the statute eliminated the 12 year statute of repose.  No action for childhood sexual abuse can be brought after the age of 30.

IN  Doe v. Schults-Lewis Child and Family Services, Inc., 718 N.E. 2d 738 (1999)









Fager v. Hundt, 610 N.E. 2d 246 (Ind. 1993)




Doe v. United Methodist Church, 673 N.E. 2d 839 (Ind. App. 1996)


Hildebrand v. Hildebrand, 736 F. Supp. 1512 (S.D. Ind. 1990)Recognizes “repressed memory.”Statute of limitations is tolled if the plaintiff can:

–          Show that parents did not know of abuse or collude with the perpetrator to conceal it;

–          Prove the tortious act alleged;

–          Show that defendant wrongly prevented the plaintiff from discovering the cause of action;

–          Provide expert opinion evidence supporting repressed memory claim; and

–          Show that plaintiff exercised due diligence in bringing claim after recovery of memory.


Exception to the old IN code (§34-1-2-5) that imputed discovery of a cause of action two years after minor reached age of majority if defendant prevented discovery by fraudulently concealing facts from the plaintiff.


Plaintiff must demonstrate ordinary diligence in discovering cause of action or the doctrine or fraudulent concealment would not toll the statute of limitations.


Applied 2 year statute of limitations.  Declined to apply discovery rule in child abuse cases.   Repressed memory is not insanity or mental incompetence as envisioned by the disability statute.KSKansas Statute § 60-523



Shirley v. Reif, 920 P. 2d 405 (1996)Action must be brought:Not more than 3 years after reaching age 18 or not more than 3 years after discovering or reasonably should have discovered the injury caused by the sexual abuse

Statute 60-523 revived claims that would have been barred under 60-515(a) (which required suit to be brought 8 years after abuse or one year after reaching age 18).KYRoman Catholic Diocese of Covington v. Sector, 966 S.W. 286 (Ky. App. 1998)Discovery rule: cause of action does not accrue until the injury is discovered or reasonably should have been discoveredIn this case, the discovery rule did not apply because he had no memory loss or lack of awareness of the abuse.  Relied instead on the Dioceses’ active, fraudulent concealment.LALa. R. S. 9:2800.9 (1993)



Doe v. Archdiocese of New Orleans, 823 So. 2d 360 (La. App. 2002)Recognizes “repressed memory.” 10 year limitation period for sexual abuse of a minor.  This runs from the day he minor reaches majority.


Repressed memory is a question of fact.

MAMass. Ann. Laws Ch. 260, Sec. 4C







Clark v. Edison, 881 F. Supp. 2d 192 (D. Mass. 2012)




Phinney v. Morgan, 654 N.E. 2d 77 (1995)











Doe v. Creighton, 786 N.E. 2d 1211 (2002)



Flanagan v. Grant, 897 F. Supp. 637 (D. Mass. 1995)


Ross v. Garabedian, 742 N.E. 2d 1046 (2001)Recognizes “repressed memory.” Assault and battery actions alleging the sexual abuse of a minor shall be brought within 3 years of the acts or within 3 years of the discovery or when the victim reasonably should have discovered that an emotional or psychological injury or condition was caused by said act, whichever period expires later; however, the time limit for commencing an action is tolled for a child until the child reaches 18 years old.


Three year statutory limitations period for assault and battery does not begin to run until the potential plaintiff has first, an awareness of his injuries and second, an awareness that the defendant has caused his injuries.


Discovery rule applies to incestuous child abuse by plaintiff must show that they did not and could not have known within the statutory period of the harm.


–          Unawareness that defendants committed a wrongful act at time of commission;

–          Plaintiff’s trust in defendant;

–          Defendant’s control over facts giving rise to plaintiff’s cause of action;

–          Necessity of triggering event which makes plaintiff aware of defendant’s liability.


Discovery rule did not toll statute of limitations in this case because claim of knowing the abuse but not knowing the connection to the injury was believed to be unreasonable.


Discovery rule tolls statute until repressed memory is recovered  (if an actual repressed memory is alleged)


Question of fact as to whether a reasonable person in the plaintiff’s position would recognize a link between abuse and injuries.  The list of factors in Phinney is not exhaustive.

MDDoe v. Archdiocese of Washington, 689 A.2d 634 (1997)  



Doe v. Maskell, 342 Md. 684 (1996)Civil action should be filed within 3 years after it accrued; sexual abuse victim’s cause of action accrued on date that he reached the age of majority (regardless of whether he appreciated the wrongfulness of the alleged actions).


Repression of memories does not activate the discovery rule so as to toll the limitations period (claims are barred 3 years after reaching age 18).ME14 Maine Revised Statutes Annotated 752-c (2000) 

Nuccio v. Nuccio, 673 A. 2d 1331 (Sup. Judicial Ct. Of Maine 1996)No time limit for action involving sexual intercourse with child.Does not apply retroactively.


Claim that memory of the abuse was repressed does not toll the statute of limitations.  Claim accrue at time of abuse or age of majority.MIMCLA §600.5851

Lemmerman v. Fealk, 534 N.W. 2d 695, (Mich. 1995)May fall under “insanity” under disability statutes in order to toll the statute of limitations but requires corroboration.No discovery rule-type extension of statute of limitations for repressed memory.

MNMinn. Stat. Ann.§§ 541.15, 541.073




Bertram v. Poole, 597 N.W. 2d 309 (Minn. App. 1999)


Doe v. Archdiocese of St. Paul & Minneapolis, 817 N.W.2d 150 (2012)Recognizes “repressed memory.”Suit must be brought within 6 years since plaintiff knew or had reason to know that abuse caused the injury.  Repressed memory, however, can fall under the disability category to suspend the tolling of the statute of limitations.


Repressed memory is a legal disability which tolls the statute of limitations.


Under the delayed discovery statute, the statute of limitations for claims based on injuries from sexual abuse begins to run once a reasonable person would know that he is injured, and in this context, one is “injured” if one is sexually abused.


Merely not thinking about the sexual abuse is not enough to toll the statute of limitations.MOMo. Ann. Stat. §537.046






Sheehan v. Sheehan, 901 S.W. 2d. 57 (MO 1995)Recognizes “repressed memory.”Childhood sexual abuse claims must be brought within 10 years of turning 21 or 3 years after discovering or reasonably should have discovered that the injury was caused by childhood sexual abuse, whichever is later.



Damage is “ascertainable” for purposes of statute of limitations for assault or battery, when fact of damage can be discovered or made known, rather than when plaintiff actually discovers the injury or wrongful conduct; thus, ascertainability is an objective determination.MSTichenor v. Roman Catholic Church of the Archdiocese of New Orleans, 869 F. Supp. 429 Doe v. Roman Catholic Diocese of Jackson, 947 So. 2d 983 (Miss. App. 2003).The actions alleged (i.e. similar torts to or assault and battery) fall within the statute of limitations for intentional torts.The statute of limitations for intentional torts will not toll unless there is some latent injury (i.e. one where the plaintiff is precluded from discovery of the harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question, or when it is unrealistic to expect a layman to perceive the injury at the time of the act.) (In this case, the alleged sexual abuse was thought by the court to have been discoverable and thus there was not a latent injury and no tolling).MTMont. Code Ann. § 27-2-216Action for alleged childhood sexual abuse should be brought…·         Within 3 years of the abuse, or·         3 years after plaintiff discovers or reasonably should have discovered that the injury was caused by the abuseNC  Soderland v. Kuch, 143 N.C. App 361, 546 S.E.2d 632 (N.C. 2001)Recognizes “repressed memory.” Statutes of limitation in North Carolina are subject to expansion by the discovery statutes.  As soon as the injury becomes apparent to the claimant or should reasonably become apparent, the cause of action is complete and the limitation period begins to run.


Statutes of limitation in North Carolina are also subject to expansion by disability statutes.  If the plaintiff is incompetent the statute of limitations is tolled until the disability is removed.  Determination of an adult’s incompetency is one of mental competence to manage one’s own affairs.  The term of affairs encompasses more than one transaction.NDNDCC 28-01-18; 28-01-25





Osland v. Osland, 442 N.W. 2d 907 (N.D. 1989)


Peterson v. Huso, 552 N.W. 2d 83 (N.D. 1996)Recognizes “repressed memory.” 2 year statute of limitations for assault and battery actions. (28-01-18)


If a minor when alleged abuse occurred, can extend statute of limitations 1 year after 18th birthday.  (28-01-25)


Discovery rule extended the statute of limitations when she was unable because of the trauma to fully understand or discover her cause of action.


Discovery rule tolls statute until repressed memory is recovered.  (2 years from when the memory was recovered)NETeater v. State, 252 Neb. 20, 559 N.W. 2d 758 (1997)Does NOT recognize “repressed memory.” Statute of limitations begins to run as soon as cause of action accrues, and action in tort accrues as soon as the act or omission occurs.


NHNew Hampshire Rev. Statute Ann. 508:4






McCollum v. D’Arcy, 638 A. 2d 797 (N.H. 1994)Recognizes “repressed memory.” 3 years of the act or omission complained of except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered the injury and its causal relationship to the act or omission complained of


Repressed memory is a basis for applying the discovery rule.  Corroborative evidence is not always required to apply discovery rule, it should be a case-by-case analysis.NJJones v. Jones, A. 2d 316 (1990)Recognizes “repressed memory.”“mental trauma resulting from a pattern of incestuous  sexual abuse may constitute insanity…so as to toll the statute of limitations.”NMNM St. § 37-1-30Must bring action for childhood sexual abuse by either (whichever is later)·         24 years old·         3 years from the date that the person knew or had reason to know of the childhood sexual abuse and that the childhood sexual abuse resulted to an injury to the person, as established by competent either medical or psychological testimony.NVPetersen v. Bruen, 792 P. 2d 18 (Nev. 1990)NV plaintiffs can bring a civil suit at any time (no statute of limitations bar) if they can show actual abuse as a child by clear and convincing evidence.NYBassile v. Covenant House, 191 A.D. 2d 1898 (1st Dept. 1993)Does NOT recognize “repressed memory” No “delayed discovery rule” to toll statute of limitations for actions based on sexual abuse.  Begins to run at time of commission of tortious act.OHR.C. § 2305.111






Pratte v. Stewart, 125 Ohio St.3d 473 (OH 2010)Action for assault/battery claiming childhood sexual abuse must be brought within 12 years after claim accrues (either accrues when victim is of age of majority, or if fraudulent concealment, accrues when the victim discovers or reasonably should have discovered.In amending R.C. §2305.111 to increase the limitations period from 1 year to 12 years, it is reasonably inferred that the General Assembly considered repressed memory.  The General Assembly did not include a tolling provision for persons with repressed memories of childhood sexual abuse.OKLovelace v. Keohane, 831 P. 2d 624 (Okla. 1992)Repressed memory is not insanity or mental incompetence as envisioned by disability statute.ORNoneNonePA42 Pa. C.S.A. §§ 5524, 5533; Bailey v. Lewis, 763 F. Supp. 802 (E.D. Pa. 1991)Dalrymple v. Brown, 701 A. 2d 164 (Pa. 1997)


Pearce v. Salvation Army, 674 A. 2d 1123 (Pa. Super. 1996)In Bailey (applying PA statute) court did not toll the statute of limitations for the period of time that the alleged memories were repressed.No discovery rule or other extension of the statute of limitations for times when repressed memories were claimed.


Discovery rule did not toll the statute of limitations even when the victim claimed those memories has been repressed and only later revived through therapy.RIR.I. Gen. Laws § 9-1-51





Kelly v. Marcantonio, 678 A. 2d 873 (1996).Recognizes “repressed memory.”Claims for childhood sexual abuse should be brought within 7 years of the act alleged to have caused the injury or 7 years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act (whichever occurs later).


Repressed memories may qualify as a “disability” if judge determines that evidence establishes the existence of these recovered recollections and that they are sufficiently reliable to qualify as “unsound mind.”SCMoriarty v. Garden Sanctuary Church of God, 534 S.E. 2d 672 (2000).Recognizes “repressed memory.”If there is objectively verifiable evidence of repressed memory (expert testimony required), then the statute of limitations period can be tolled.SDSD Stat. § 26-10-25For childhood sexual abuse commence action:·         3 years from the abuse, or·         3 years from the discovery of the abuse or when the abuse should have been reasonably discovered.


(Whichever occurs later)TNDoe v. Coffee Cty Bd. of Edu., 852 S.W.2d 899 (Tenn. Ct. App. 1992)




Hunter v. Brown, 955 S.W. 2d 49 (Tenn. 1997)Recognizes “repressed memory.”Under Tennessee’s formulation of discovery rule, statute of limitations begins to run when injury occurs or when plaintiff discovers or should have discovered that he or she has right of action.



Memory not actually repressed because victim has abortion; no tolling of the statute of limitations.TXJohn Doe XV v. Roman Catholic Diocese of Dallas, 2001 WL 856963 (July 31, 2001)








Archambault v. Archambault, 846 S.W.2d 359 (Tex. App. Houston 14th Dist. 1992)Recognizes “repressed memory.”The discovery rule applies in cases of fraud and fraudulent concealment and in other cases in which the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.  An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence.


Under discovery rule, which tolls running of limitations period, statute of limitations does not begin to run until claimant discovers or, in exercise of reasonable diligence, should have discovered facts establishing cause of action.UT

Olson v. Hooley, 865 P.2d 1345 (Utah 1993)









Burkholz v. Joyce 972 P.2d 1235 (Utah 1998)Recognizes “repressed memory.”

With few exceptions, statute of limitations for cause of action that accrues during plaintiff’s minority or incompetency is tolled until plaintiff reaches age of majority or regains competency.  Under “discovery rule,” statute of limitations does not begin to run until plaintiff learns of, or in exercise of reasonable diligence should have learned of, facts that give rise to cause of action.  Plaintiff bears burden of proving repressed memory.


Discovery rule exception did not apply where plaintiff allegedly suffered from repressed memory when he was aware of facts surrounding alleged abuse for nineteen months after he turned 18 and could have brought an action within the limitations period.

VAVa. Stat. 8.01.249(6)A cause of action for sexual abuse that occurred when the plaintiff was a minor or incompetent accrues when the fact of the injury and the causal connection to the abuse is first communicated by a licensed physician, psychiatrist, or clinical psychologist.  The statute of limitations is 10 years from the latest of:·         the last act by the same perpetrator in a series of acts·         removal of the disability of infancy or incompetency, but if plaintiff knows of the facts and the causal connection of the abuse to the injury but chooses not to act, the statute does not revive the plaintiff’s claim.VTVt. Stat. Ann. Tit. 12 § 522Cause of action for childhood sexual abuse must be brought within·         6 years of the act, or·         6 years from discovery.WAWash. Rev. Code Ann. § 4.16.340





Cloud v. Seattle School District, 991 P. 2d 1169 (1999)


Hollmann v. Corocran, 949 P. 2d 386 (Wash. App. 1997)Recognizes “repressed memory.”Codified the delayed discovery rule.  Either within 3 years after alleged act, within 3 years of time victim discovered or reasonably should have discovered that the injury or condition was caused by the act or within 3 years after victim discovered that the act caused the injury for which the claim is brought.


Victim of sexual abuse might know he was abused but may be unable to make connection between the abuse and the emotional harm until many years later.


Applying statute (4.16.340), time from action is tolled until victim has actual knowledge in repressed memory cases.WIW.S.A.893.587Doe v. Archdiocese of Milwaukee, 565 N.W. 2d 780 (1995)Commence action before injured party reaches age of 35.Rejects reliance on discovery rule; statute of limitation is only tolled for repression of memory in incest cases.WVAlbright v. White, 503 S.E. 2d 860 (1998)  




Miller v. Monongalia County Board of Education, 556 S.E. 2d 427 (2001)Discovery rule does not apply to repressed memory if there is a 20 year tolling provision cap from accrual of the cause of action.  The discovery rule cannot further toll the limitations period.  The discovery rule only applies where there is a strong showing that plaintiff was prevented from knowing of the claim at the time of the injury.Discovery rule can be further extended if plaintiff can show that the defendant took affirmative steps to conceal the material facts of the action.WYMcCreary v. West, 971 P. 2d 974 (Wyo. 1999)Statute of limitations for psychic trauma attributable to assault (when civil action based on the sexual assault of a minor) does not start  until discovery of those damages, even though the discovery of the physical damages occurred at an earlier date.

  • Conclusion


It is likely that the debate concerning validity of “repressed memory” will continue both in scientific studies and in the courtroom.  Defense counsel facing the issue will best serve his or her client’s interests by recognizing the arguments both for and against its acceptance by the scientific community, as well as the venue state’s willingness to carve an exception for allowing an otherwise often stale claim.





1 The Myth of Repressed Memory – False Memories and Allegations of Sexual Abuse, by Dr. Elizabeth Loftus and Katherine Ketcham, St. Martin’s Griffin, New York, 1996.


2 The Courage to Heal, by Ellen Bass and Laura Davis; Secret Survivors, by E. Sue Blume


3 Supra


4 Supra


5 “Memory Faults and Fixes,” article by Dr. Elizabeth Loftus, From Issues in Science and Technology (Summer 2002).


6 The Myth of Repressed Memory, pg. 21 (Supra)


7 Memory of Faults and Fixes, by Loftus, pg. 47


8 Supra, pg. 41


9 Supra, pg. 41


10 Supra, pg. 41


11 Supra, pg. 41


12 Crimes of Memory, by Loftus, pg. 1


13 Supra, pg. 2


14 Memory Faults, pg. 47


15 Supra, pg.47


16 Memory Faults, pg. 43


17 Supra, pg. 43


18 Supra, pg. 43


19 Supra, pg. 43


20 Supra, pg. 43


21 Supra, pg. 43


22 Crimes of Memory, Loftus, pg. 1


23 Supra, pg. 2


24 Supra, pg. 2


25 “The Child Terror: State of Florida vs. Bobby Fijnje,” FrontLine,;


26 Supra, pg. 1


27 Supra, pg. 1


28 Supra, pg. 1


29 Supra, pg. 2


30 Supra, pg. 2


31 Supra, pg. 2


32 Supra, pg. 2


33 Supra, pg. 2


34 Supra, pg. 2-3


35 Supra, pg. 3


36 Supra, pg. 3


37 Supra, pg. 3


38 Supra, pg. 4


39 Supra, pg. 4

40 Supra, pg. 4


41 Supra, pg. 4


42 Supra, pg. 4


43 Supra, pg. 5


44 Supra, pg. 5


45 Coping with Psychiatric and Psychological Testimony (Supra), pg. 1101


46 Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, by Stephen J. Ceci and Maggie Bruck, pg. 194


47 Supra


48 Supra


49 Supra, pg. 1101


50 Supra, pg. 1101


51 Supra, pg. 195


52 Coping with Psychiatric and Psychological Testimony (Supra), pg.1102


53 Supra, pg. 1102


54 Supra, pg. 1102


55 Supra, pg. 1102


56 Supra, pg. 1102


57 Supra, pg. 1103


58 The Myth of Repressed Memory, pg. 50


59 Applying the Two Schools of Thought….pg. 524


60 Supra, pg. 524


61 Supra, pg. 525


62 Supra, pg. 525

63 Coping with Psychiatric and Psychological Testimony (Supra), pg. 1102


64 WAUJLP Repressed Memories: Do Triggering Methods Contribute to Witness Testimony Reliability? Fletcher, pg. 341


65 Supra, pg. 341


66 Supra, pg. 341


67 Supra, pg. 342


68 Supra, pg. 342


69 Supra, pg. 342


70 Supra, pg. 342


71 Supra, pg. 342


72 Supra, pg. 342


73 Supra, pg. 343


74 Supra, pg. 343


75 Supra, pg. 343


76 Supra, pg. 343


77 Supra, pg. 343


78 Supra, pg. 343


79 Memory Faults and Fixes (Supra), pg. 44


80 Supra, pg. 44


81 Supra, pg. 44


82 Daubert is the landmark federal court decision from 1993 which overturned 70 years of expert evidence law regarding what types of expert testimony should be allowed.  Daubert discarded the Frye standard, claiming that it was “neither necessary nor sufficient in admissibility decisions regarding novel scientific evidence,” and also affirmed the judge’s role as “gatekeeper” to ensure that evidence is both reliable and relevant.  The justices decided that “evidentiary reliability will be based on scientific validity.”  See Judicial Application of Daubert to Psychological Syndrome and Profile Evidence, Psychology, Public Policy, and Law, March 2005 by Mara L. Merlino; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).


83 Memory Repression: Should it Toll the Statutory Limitations Period in Child Sexual Abuse Cases, Wayne Law Review, Julie Schwarts Silberg (Summer 1993), pg. 1602


84 Supra, pg. 1602


85 Supra, pg. 1602


86 Supra, pg. 1605


87 Supra, pg. 1602-1606


88 Supra, pg. 1602-1606