COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 86 June 30, 1997

A. 582 By: M of A Katz

Assembly Committee: Codes

Effective Date: Immediately

AN ACT to amend the civil practice law and rules, in relation to extending the statute of limitations for certain sex offense cases

LAW AND SECTIONS REFERRED TO: CPLR 214

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#29)

THIS BILL IS DISAPPROVED

This bill makes the following changes to existing law concerning the statute of limitations applicable to a civil action for damages from childhood sexual abuse or exploitation:

The action must be commenced within three years of the act causing the injury or within three years of the time of discovery of both the injury and the fact that the injury was caused by the sexual abuse; under current law such an action is for an intentional tort which must be commenced within one year of the injury, CPLR 215.

The statute of limitations is tolled until the plaintiff is 21; under current law the tolling ends when the plaintiff reaches 18, CPLR 208.

The plaintiff may compute the date of discovery from the date of discovery of the last in a series of acts claimed to cause the injury; this issue has not been addressed under existing law but it is likely that a plaintiff would be required to identify the act causing the injury and commence the action within one year of that act.

The bill incorporates a new statute of repose, requiring the action to be commenced before the plaintiff reaches the age of 35 years.

The bill prohibits the imputation of the knowledge of a parent or guardian to the plaintiff in an action for childhood sexual abuse.

Discussion

The supporting memorandum for this bill states that its purpose is "to recognize that children who are victims of sexual abuse often suffer from repressed memory syndrome. The current civil statute of limitations does not address the needs of those survivors who have repressed memory of childhood sexual abuse and do not remember until after age 21."

Sexual exploitation of minors by those in position of trust is surely to be condemned, and steps to prevent it and provide redress for victims are undoubtedly appropriate. However, this bill, by permitting the pursuit of uncorroborated claims decades after the event supported only by a highly controversial theory of repressed memories, may result in the only certain victims being parents and others who are unable to defend against ancient claims.

The bill essentially eliminates the statute of limitations as a defense to any civil action for damages due to childhood sexual exploitation brought by a plaintiff under the age of 35. Thus, a plaintiff will be able to pursue a claim for damages for conduct taking place over 30 years before the claim is brought.

Statutes of limitations have long served two core purposes; to avoid the litigation of stale claims after the evidence is no longer reliable or even available, and to provide certainty in human affairs by putting an end to latent claims. See Flanagan v. Mt. Eden General Hospital, 24 N.Y. 2d 427, 429 (1969). In the prototypical case the bill would permit, a plaintiff assisted by a practitioner of recovered memory therapy will allege sexual abuse occurring many years, and perhaps decades earlier, which will be proved by the recovered memory of the plaintiff. The recovered memories will be explained by the therapist for the plaintiff as consequences of repressed memory syndrome, memories repressed as a result of a traumatic experience and totally unknown to the plaintiff until intervention by the therapist. The defendant is unable to offer any evidence other than his or her own testimony, and corroboration of the defendant's view of the relationship between plaintiff and defendant will be unavailable due to the passage of years and dispersal or death of potential witnesses. When the plaintiff's evidence is entirely subjective and uncorroborated, as is very likely to be the case, the policy served by the statute of limitations is crucial.

To be sure, the CPLR has been amenable to special discovery notice provisions for statutes of limitations in particular circumstances where justice requires, computing the beginning of the statutory period from notice of the injury, rather than the occurrence of the act causing it: Action for fraud commenced within six years of discovery of fraud, CPLR 213(8); action for exposure to agent orange commenced within two years of discovery of injury, CPLR 214-b; action for latent effects of exposure to toxic substances, CPLR 214-c(2). However, in each such special circumstance, there is objective evidence of the injury and of the circumstances causing the injury. By contrast, in the case of childhood sexual abuse, there is no objective evidence of anything.

The sole rational for this dramatic change in the statute of limitations is the belief that repressed memory syndrome is common among child victims of sexual abuse . In fact, the theory of recovered memory syndrome itself is highly controversial. Typical conclusions by professional groups include:

"The AMA recognizes that few cases in which adults make accusations of childhood sexual abuse based on recovered memories can be proved or disproved and it is not yet known how to distinguish true memories from imagined events in these cases."

***

"The AMA considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification. The use of recovered memories is fraught with problems of potential misapplication."

Report of Council on Scientific Affairs, adopted at 1994 AMA House of Delegates Annual Meeting.

"At present there are no scientifically valid criteria that would generally permit the reliable differentiation of true recovered memories of sexual abuse from pseudomemories."

MPA Position Paper adopted by Executive Council of Michigan Psychological Association, May 17, 1995.

"At this point, it is impossible , without other corroborative evidence, to distinguish a true memory from a false one."

American Psychological Association (1995), "Questions and answers about memories of childhood abuse," Washington, D.C.

The statute of limitations should not be effectively repealed to accommodate a theory with no scientific support for the bringing of otherwise uncorroborated claims.

Even if there was a methodology available which could with sufficient reliability enable memories to be restored so as to provide credible evidence, the bill has unacceptable or unnecessary provisions. Proposed CPLR 214-e(2) provides that the time may be computed from the last of a series of acts, without regard to which one caused the injury, yet the time will not begin to run under proposed CPLR 214-e(1) until the plaintiff has learned of both the injury (i.e., depression) and its cause, sexual abuse. As the knowledge of both injury and relationship must come no sooner than the act causing the injury, and it is the date of acquisition of this knowledge that governs, proposed CPLR 214-e(2) could never determine when the three year period began to run for a plaintiff relying upon the discovery provisions of proposed CPLR 214-e(1). Moreover, as the act would toll the three year statute of limitations until the plaintiff was 21, but the conduct must have occurred before the age of 18, the circumstances when a plaintiff not relying upon the discovery provisions of proposed CPLR 214-e(1) will be able to use proposed CPLR 214-e(2) are not apparent. CPLR 214-e(2) adds only confusion to the amendments contemplated by the bill.

The bill also contains some unfortunate language that lends to the proposed statute the appearance of a rhetorical device as much as a careful statement of when in action must be commenced. Thus, the plaintiff or person bringing the action is identified as "the injured party" and the defendant is "the perpetrator," rather than the more neutral "person asserting a claim," "plaintiff" or "defendant."

For the forgoing reasons, this bill is DISAPPROVED.

Person who prepared the report: James N. Blair, Esq.

Chair of the Committee: Paul H. Aloe, Esq.