Missouri Court Considers Repressed Memory in Abuse Case

By David A. Lieb
Associated Press, carried in the Kansas City Star
September 8, 2005

JEFFERSON CITY, Mo. - In a case watched closely by abuse victim advocates, the Missouri Supreme Court considered Thursday whether the recent recollection of repressed memories should allow an adult to sue a Catholic boarding school for alleged abuse that occurred more than two decades ago.

The case revolves around the state's deadline for filing lawsuits, which is triggered not by when a wrong action is committed, but by when victims are capable of realizing the damages they suffered.

Michael Powel, 47, of St. Petersburg, Fla., contends he was sexually abused by two instructors as a student at Chaminade College Preparatory School, a Catholic boarding school in St. Louis County, from 1973 to 1975. But Powel claims he did not recall the abuse until 2000, when he began receiving treatment for brain cancer.

He sued the school and the Marianist Province that sponsors it in June 2002, claiming the school had intentionally failed to supervise the staff members who repeatedly abused him.

Missouri law in place at the time Powel sued required lawsuits to be filed within five years of when the damage from a wrongdoing "is sustained and capable of ascertainment." For victims who are minors, that clock did not start ticking until they turned 21.

An attorney for the school contended Thursday that a trial judge correctly dismissed Powel's case, arguing that Powel was capable of realizing the damages of the sexual abuse at the time it allegedly occurred, and thus his timeline to sue would have long ago expired.

But Powel's attorney argued that a state appeals court panel correctly ruled the case should go to trial, leaving it to jurors to decide when Powel was capable of ascertaining the damages from his alleged abuse.

Supreme Court Judge Laura Denvir Stith repeatedly honed in on that argument, stressing there is a legal difference between being aware of the abuse and being aware that the abuse caused damage.

Gerard Noce, an attorney for the school and religious order, denied Powel was abused at the school. But if he was, Noce argued that Powel was aware of the damage as a teenager, citing his adult testimony that he felt physically and emotionally ill after the alleged incidents and that he acted out by selling alcohol to other students and, after being expelled, started hitchhiking and engaging in sex with older men.

But Powel's attorney, Joseph Bauer of St. Louis, argued his client repressed his memory of the alleged abuse at the Catholic school shortly after it happened and did not recall it until age 41 - only then remembering his feelings and the damage the abuse had caused him.

Powel was present for Thursday's arguments before the Supreme Court, but declined to comment.

Also present was David Clohessy, executive director of Survivors Network of those Abused by Priests. The group was one of 13 victims groups that filed a joint brief in support of Powel's claim.

Clohessy's own lawsuit alleging clergy abuse rose in 1993 to the Supreme Court, which ruled his statute of limitations had expired and that the Legislature could not retroactively authorize lawsuits that had previously been time-barred.

Clohessy said he hoped the Supreme Court would allow Powel's case to go forward based on the recollection of repressed memories. He compared the issue in Powel's case to a person who vomits and knows he is sick at the time, but doesn't realize until later that the vomiting was caused by a poisoning.

Courts nationally are trending toward giving childhood sexual abuse victims more opportunities to sue, Clohessy said.

"This is definitely part of a larger national pattern, where judges and juries realize we shouldn't be frozen out based on narrow interpretations of rigid, archaic laws," Clohessy said.

The lawsuit also names as defendants the Rev. William Christensen and instructor John Woulfe. But attorneys for both Powel and the school said Christensen is in Bangladesh and has never been served with the lawsuit, and that Woulfe was served but never responded. That effectively leaves the school and Marianist Province as the only defendants from whom Powel could collect damages.

Case is Michael Powel v. Marianist Province of the United States, SC86875.

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