-Caveat Lector- Hi ! Below please find two legal cases acknowledging the existence of recovered memory. Sincerely, Neil Brick These may be triggering for survivors of abuse. Excerpts from http://www.jimhopper.com/memory-decision (the first page (.com) links to other pages of interest also) "The Validity of Recovered Memory: Decision of a US District Court" Judge Edward F. Harrington, Presentation by Jim Hopper, Ph.D. The legal documentation citation is: 923 Federal Supplement 286 (D. Mass. 1996), United States District Court - District of Massachusetts Ann Shahzade, plaintiff Civil Action No.: V. 92-12139-efh George Gregory, Defendant. Some quotes from the decision: "The factors to be considered when deciding if proffered testimony is valid 'scientific knowledge,' and therefore reliable, are. . ." (p.3) "This Court finds that the reliability of the phenomenon of repressed memory has been established" and will allow the plaintiff to introduce evidence related to their recovered memories (p.3). "Dr. van der Kolk testified that repressed memories is not a scientific controversy, but... a political and forensic one" (p.5). "Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, 1994)...also recognizes the concept of repressed memories" (p.7). "in considering the admissibility of repressed memory evidence," the court must rule on the "validity of the theory itself... For the law to reject a diagnostic category generally accepted by those who practice the art and science of psychiatry would be folly." (p.9). Exceprts from http://www.smith-lawfirm.com/Arizona_Doe_v_Rose.html Arizona Supreme Court opinion in Doe v Roe acknowledging existence of repressed memory and expanding application of the statute of limitations for child sexual abuse. See Also Article: "Arizona Rethinks its Approach to Extending Statutes of Limitation in Childhood Sexual Abuse Cases" The Fine Print: This web site provides general information only and cannot be relied upon as legal advice. Laws change and differ from State to State. Applicability of the legal principles discussed may differ substantially in individual situations. You should consult an attorney about your particular situation. COPYRIGHT © 1998-99 Susan K. Smith, Atty. All Rights Reserved. Victims Law Doe v. Roe 1998 Ariz. LEXIS 29, AZDk CV-96-0526, 266 Ariz. Adv. Rpts. 19 (Apr. 7, 1998). 955 P.2d 951 (Ariz. 1998) Jane DOE, a single person, Plaintiff-Appellant. v. John ROE and Jane Roe, husband and wife, Defendants-Appellees. No. CV-96-0526-PR. Supreme Court of Arizona, En Banc. April 7, 1998. Appeal from the Superior Court in Maricopa County, The Honorable Daniel A. Barker, Judge. REVERSED AND REMANDED. Opinion of the Court of Appeals, Division One, 187 Ariz. 605, 931 P.2d 1115 (App.1996) VACATED. Muchmore & Wallwork, P.C. by Margaret F. Dean, Nicholas J. Wallwork, Phoenix, for Jane Doe. Renaud Cook & Drury, P.A. by Steven G. Mesaros, Diane L. Mihalsky, William W. Drury, Jr., Phoenix, for John Roe. Broening Oberg Woods Wilson & Cass, P.C. by Jerry T. Collen, Terrence P. Woods and Thomas & Elardo by Neal B. Thomas, Phoenix, for Jane Roe. OPINION FELDMAN, Justice. We granted review to determine how the statute of limitations applies to a case of delayed discovery attributable to alleged repressed memory of severe sexual abuse. Plaintiff claims that after many years she recalled the abuse but for a prolonged period was incapacitated to the point of being unable to assert her legal rights. We examine application of both the discovery rule and the tolling statute. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3) and Ariz.R.Civ.App. 23. FACTS AND PROCEDURAL HISTORY Jane Doe (Plaintiff) alleges that her father sexually abused her during the years 1963 to 1970 when she was between the ages of eight and fifteen. Because of the trauma associated with the abuse, Plaintiff completely repressed all memory of the events. Plaintiff alleges that until 1989, she regarded her mother and father as ideal parents and considered them her best friends. Plaintiff had never seen a therapist or required psychiatric treatment, although she did suffer from eating disorders. As an adult, Plaintiff had only sparse and vague memories of her childhood, except for time spent with her paternal grandparents, with whom she was very close. Plaintiff's paternal grandmother died in late 1988 and her paternal grandfather died in March 1989. A few months later, while watching a television program that examined the issue of incest, Plaintiff experienced a flashback memory of her father sexually assaulting her. As a result, Plaintiff developed feelings of hysteria, even panic, and immediately sought counseling. In the first emergency therapy session, Plaintiff alluded to the flashback she experienced earlier that day. However, during the next six months of therapy (first weekly then twice per week), Plaintiff could not discuss any specific incidents of sexual abuse. During this period Plaintiff experienced feelings of guilt, shame, self-doubt, depression, suicidal ideation, and ultimately denial of her victimization. The therapist made a clinical diagnosis of depression and concluded that Plaintiff was in denial, resulting from her mental inability to cope with the shame and guilt associated with the abuse. This was demonstrated by the facts that Plaintiff spent that Christmas with her parents and was unable to remember earlier disclosures of memories of abuse in subsequent therapy sessions. As her therapy continued, however, Plaintiff began to recall additional specific incidents of especially brutal sexual abuse perpetrated by her father, including being forced to watch pornographic movies, digital penetration, penetration with objects, and cunnilingus. Plaintiff also recalled an extremely disturbing memory of "acting out" behavior that was symptomatic of her abuse--an attempt at bestiality. The record does not indicate when, subsequent to July 1989, Plaintiff remembered specific incidents. After leaving the hospital, Plaintiff traveled to her parents' residence in Phoenix and confronted them with general accusations of sexual abuse. Her mother did not question the truth of the allegations but only apologized for having allowed the abuse to happen. When Plaintiff confronted her father, he said he had been expecting her accusations, admitted his behavior was inappropriate, and apologized. Few specific details of the abuse were discussed. Nonetheless, this conversation with her parents, albeit versed in the most general terms, was the first time Plaintiff was able to discuss her memories of sexual abuse with anyone other than her therapist. Plaintiff's parents did not deny the abuse at any time before this action was filed on May 13, 1992. DISCUSSION We granted review on the following issues: (1) whether summary judgment is precluded by genuine factual questions whether Plaintiff discovered or should have discovered her cause of action more than two years before she filed suit, and (2) whether the statute of limitations period was tolled by Plaintiff's mental impairment. We must determine, therefore, how the discovery rule and the tolling provisions of the statute of limitations are to be applied when a plaintiff alleges that her memories of severe childhood sexual abuse were repressed and not recalled until adulthood. The nature of repressed memory and the effects of childhood sexual abuse bear directly on the application of the law and its underlying policies.... Thus, we note preliminarily that the parties presented this case to us on the assumption that the phenomenon of repressed memory exists, the theory is valid, and expert opinion admissible. Given this situation, in reviewing the propriety of the trial judge's grant of summary judgment we have accepted the case as presented by the parties, and have assumed the phenomenon of repressed memory exists and the concept could be applied to Plaintiff's discovery and tolling claims. We have not addressed or decided the Frye issue--conformance to accepted scientific theory--or even considered whether the issue is preserved or whether the Frye test is applicable at all to evidence of this nature. The following discussion of the literature describing the pros and cons of repressed memory theory, therefore, is made only to enable the reader to understand the mechanics of the alleged phenomenon and its application to claims of discovery and tolling, as well as to make clear that even if repressed memory is, in general, a valid theory, there is always the possibility of false or implanted memory, an issue that would normally be for the jury to decide. A. The repressed memory debate The popular term "repressed memory" generally refers to a psychological condition whereby a victim of a traumatic event represses memory of the event in his or her subconscious. The nature and reliability of memories associated with traumatic events have been studied and debated for over a century. We present only the brief overview necessary for an understanding of how legal principles apply. 1. Mechanics of memory repression and recall Memory repression, also referred to as selective amnesia, traumatic amnesia, and dissociative amnesia, has been documented in various contexts among persons who have survived severe trauma, including concentration camp survivors, combat veterans, and victims of childhood abuse. [FN2] In laymen's terms, memory repression is the involuntary blocking of memory so that the memory remains stored but inaccessible to the conscious mind. Repression is a psychological defense mechanism that protects the individual from being confronted with the memory of an event that is too traumatic to cope with.... Physiological research conducted on the functioning of memory demonstrates the brain's biological capacity to retain memories yet prevent conscious access to them. See Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. REV. 549, 600-04 (1996). The memory is not lost but remains dormant and inaccessible. The individual functions with no conscious awareness of the traumatic event. Researchers and clinicians attest that the inaccessible memory may nonetheless adversely impact the individual's psychological well-being and is frequently manifested by substance abuse, severe depression, suicidal tendencies, and sexual and social dysfunctions. See Judith Herman & Emily Schatzow, Recovery and Verification of Memories of Childhood Sexual Trauma, 4 PSYCHOANALYTIC PSYCHOL. 1, 2 (1987). Repressed memories are, however, only temporarily inaccessible. Research on the biology of memory verifies the brain's capacity to retrieve previously inaccessible memory in response to stimuli. [FN3] These stimuli, commonly referred to as triggers, include sensory experiences, therapy, and spontaneous recall. For instance, in Hewczuk v. Sambor, in a near-drowning incident in adulthood, the plaintiff experienced a feeling of having undergone a similar trauma earlier in life. Evidence later established that during childhood the plaintiff's foster parents nearly drowned her by submersing her head in a toilet. 1993 WL 45079 (E.D.Pa.1993). In addition, the biological functioning of memory may leave persons who experience trauma incapable of synthesizing a narrative description of the event. [FN4] The potential for absence of a narrative is evidenced in one study that observed a child who had been sexually molested by a babysitter in the first two years of life. The child could not, at age four, remember the abuse, but in his play he exactly replicated the pornographic movie made by the babysitter. LEONORE TERR, TOO SCARED TO CRY: PSYCHIC TRAUMA IN CHILDHOOD 248- 51 (1990). In childhood sexual abuse cases, the process of memory repression and recall has been demonstrated through empirical research. One widely recognized prospective study documented occurrences of memory repression, memory recall impelled by triggering events, and the positive relationship between the severity of abuse and the probability of memory repression. [FN5] A follow-up study illustrated the accuracy of the subjects' retrieved memories, despite self-doubt and uncertainty. [FN6] In fact, some preliminary studies suggest that retrieved memories that were formerly repressed are in fact more accurate than normal conscious memory. [FN7] 2. False memory syndrome The possibility of false, implanted memories, however, does not negate the case made for the existence of repressed memory because memory retrieval often occurs in the absence of therapy or other forms of treatment. See Lazo, supra, 28 LOY. L.A. L. REV. at 1376-78. [FN10] One author has observed, "If such memories were induced only by pesky therapists, survivors ... would not spontaneously recover them outside therapy. But they do." David Chalof, Facing the Truth About False Memory, FAM. THERAPY NETWORKER 39, 42 (Sept./ Oct.1993) (quoted in Lazo, supra, 28 LOY. L.A. L. REV. at 1377)....Thus the psychological process of memory repression and recall is not discredited by the possibility that a false memory has been implanted. Rather, either of these processes may explain a particular factual allegation of therapy-induced memory recall. >From a review of the literature, we must conclude that repressed memories of childhood abuse can exist and can be triggered and recovered.... we must assume the truth of Plaintiff's submission and that it would be for the jury to decide the question of repressed memory recovery or false memory syndrome. Thus we accept, as do the experts, the possibility that a victim of severe stress such as childhood sexual abuse might repress memory of the trauma and later experience recall of those events. Furthermore, we note that in this case the concerns about implantation of false memories are not at issue-- Plaintiff's initial flashback occurred spontaneously rather than through suggestive therapy techniques. The task before us, then, is to discern how the limitations period and concomitant exceptions apply to the case of repressed memory. The court of appeals held that the discovery rule delays the accrual of a cause of action based on childhood sexual abuse when the plaintiff retrieves repressed memories of the abuse. Doe, 187 Ariz. at 609, 931 P.2d at 1119. We agree. A victim whose memory is inaccessible lacks conscious awareness of the event and thus cannot know the facts giving rise to the cause. The policy behind the discovery rule is thus served by application to repressed memory cases involving childhood sexual abuse and is, we believe, logically appropriate given that the intentional act of the tortfeasor caused both the damage and the repression of memory. See Hewczuk v. Sambor, 803 F.Supp. 1063, 1065 (E.D.Pa.1992). To hold otherwise would be to effectively reward the perpetrator for the egregious nature of his conduct and the severity of the resulting emotional injury. To hold otherwise in Arizona would also fly in the face of legislative policy, which has imposed the most severe criminal penalties on perpetrators of childhood sexual abuse. See, e.g., A.R.S. § 13-107(B) (discovery rule applicable to criminal prosecutions). Application of the discovery rule to tort sexual abuse cases is also, we believe, the majority rule in this country. [FN11] DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance—not soapboxing! These are sordid matters and 'conspiracy theory', with its many half-truths, misdirections and outright frauds is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. 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