Repressed Memory Abuse Suits Supported

By Robert Patrick
St. Louis Post-Dispatch
June 14, 2006

[Typos corrected by See original article.]

In a ruling with potentially broad effects, the Missouri Supreme Court said Tuesday that a man claiming a repressed memory of sexual abuse 30 years ago at Chaminade College Preparatory School is entitled to proceed with a lawsuit.

The decision may open the gate for scores of other claims that previously appeared to have little chance because lower courts had imposed a more rigid view of the statute of limitations.

"It's completely changed the landscape of these cases," said lawyer Rebecca Randles, who represents dozens of alleged victims of molestation. "It's a clear-cut victory for victims of abuse because before, the door to the courthouse was virtually closed."

Courts have grappled with the thorny issue of how to reconcile a plaintiff's repressed memory - a claim that the brain refused to acknowledge a traumatic event until much later - against a defendant's right to be confronted with accusations while recollections are fresh and evidence still readily available. The law protecting that right is a statute of limitations, a deadline to file suit.

Based on a Missouri Court of Appeals decision in St. Louis in 2000, the state's judges have closely followed the statute that required filing claims of childhood sexual abuse within five years of turning 21, or by age 31, depending on which law was in effect at the time of the alleged molesting.

Michael Powel filed suit in 2002 naming Chaminade, the Marianist religious order that operates it, former Archbishop Justin Rigali and two faculty members - a priest and a religious brother - accusing the teachers of molesting him in the mid-1970s, when he was 15 to 17 years old. The suit said he repressed memory of it until 2000, when he got treatment for a brain tumor. Rigali was dismissed from the suit, and the case proceeded.

In 2004, St. Louis Circuit Judge John Riley dismissed Powel's claims, citing the 2000 appellate court ruling in saying he filed too late.

Powel appealed.

A different three-judge panel of the Missouri Court of Appeals in St. Louis said it would not follow the 2000 decision of their colleagues, and transferred the case to the Supreme Court to be reconciled.

Lawyers for Chaminade and the Marianists argued that at 17, Powel was old enough to know he had been abused. Powel's lawyers argued that he couldn't file until he realized it. Powel is now in his 40s and lives in Florida.

Supreme Court Judge Laura Denvir Stith wrote that Chaminade's argument "misses the mark" and that it was "premature" to throw Powel's case out. Stith said the key is establishing when the damage was "capable of ascertainment," when a "reasonable person" would understand he has been damaged or harmed and able to file suit.

The Supreme Court held in a 6-1 decision that the point at which the plaintiff could ascertain harm must be decided by a judge or jury in each case.

Drew Baebler, a lawyer who helped with Powel's lawsuit, said every case involving repressed memory would have to be re-evaluated in light of the decision.

Randles guessed that suits involving 60 or more alleged victims could proceed.

Randles also said that there was the potential for a huge financial impact in Missouri for the Roman Catholic Church and other religious orders like the Marianists.

In recent years, 32 cases involving allegations of sexual abuse have been mediated or settled by the Archdiocese of St. Louis for a total of $2,474,800, said church lawyer Bernard Huger. One of those cases was settled for considerably more than the others, he said.

While the Marianists have not settled any cases in Missouri, they have paid for counseling, spokeswoman Diane Guerra said.

With a greater chance of repressed-memory cases reaching trial, Randles said, religious institutions will face greater pressure to settle out of court and possibly for larger amounts. She said defendants could lose millions in jury verdicts in cases that get that far.

The plaintiff in the case that was overturned in 2000 had alleged clergy sex abuse and had won almost $1.2 million from a jury.

Lawyers representing Chaminade and the Archdiocese were much more cautious about the effect of Tuesday's decision.

"I'm not sure that it will" change the financial picture, Huger said, or "that more of these cases are likely to go to trial." He said he doubted that the $1.2 million verdict would have survived even under the Supreme Court's new ruling.

"We're going to go into it the same way we always have," but a lot depends on what's in the minds of the plaintiffs' attorneys, he said. "They may be less willing to settle . . . if they're looking for large dollar amounts."

Huger emphasized: "The statute of limitations is still in place. There's not a new standard in place that says a person can know something, then 'repress' it, then know it later," Huger said. "That is not what the court has said."

Gerard Noce, who helped represent Chaminade and the other defendants, said repressed-memory claims may be more credible to the court when made by people citing abuse at a younger age.

He pointed to a separate but concurring opinion written by Chief Justice Michael Wolff. In it, Wolff said he doubts that Powel's case would stand up, because of his age when the abuse is alleged to have occurred and his testimony that he knew there was damage at the time.

No matter which way Powel's case goes, lawyers said more appeals seem sure to follow.


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