RECOVERED MEMORY THERAPY
1996 MARYLAND COURT DECISION
The Court of Appeals of Maryland heard an appeal in a case by "Jane
Doe" against a priest, Fr. Joseph Maskell, and by "Jane Roe" against both
Fr. Maskell and Dr. Richter. The court filed a decision on 1996-JUL-29. Excerpts from the
court decision follow:
The plaintiffs claim that
"Jane Doe, from 1967 to 1971, and Jane Roe, from 1968 to 1972, were students at
Seton Keough High School [hereinafter 'Keough'], a parochial school in Baltimore City.
During their tenure at Keough, both girls, individually were referred for counseling to
the school chaplain, Father A. Joseph Maskell. According to the complaints filed in the
cases, Maskell subjected the girls to repeated sexual, physical, and psychological abuse
including: 'vaginal intercourse, anal intercourse, cunnilingus, fellatio, vaginal
penetration with a vibrator, administration of enemas, ... hypnosis, threats of physical
violence, coerced prostitution and other lewd acts, physically striking Plaintiff, and
forcing Plaintiff to perform sexual acts with a police officer.' [Note 2]
Both girls were allegedly threatened with extreme punishments if they informed anyone
of the abuse, which continued until the girls graduated and left Keough in 1971 and 1972
respectively. At some point, [Note 3] both plaintiffs claim that they ceased to recall the
abuse suffered at the hands of Father Maskell, due to a process they term 'repression.'
Both plaintiffs began to 'recover' memories of this abuse in 1992."
The defendants claimed that Maryland's statute of limitations prevented this case from
being legitimately brought forward over 2 decades after the event. The statue requires
that "A civil action at law shall be filed within three years from the date it
accrues", or three years after their eighteenth birthdays, whichever comes later.
The plaintiffs claimed that they had acted quickly upon recovering memories of the abuse
and that the "accrual date" should be the date when the memories were recovered,
rather than the date of the actual abuse.
The court decided:
"We find that the critical question to the determination of the applicability of
the discovery rule to lost memory cases is whether there is a difference between
forgetting and repression. It is crystal clear that in a suit in which a plaintiff
'forgot' and later 'remembered' the existence of a cause of action beyond the 3-year
limitations period, that suit would be time-barred...Plaintiffs in this case, however,
claim that in order to avoid the pain associated with recalling the abuse they suffered,
their memories were 'repressed,' not merely 'forgotten,' and later 'recovered,' rather
than 'remembered.' They argue that this difference renders them 'blamelessly ignorant' and
excuses their failure to file suit in a timely manner. To aid in an understanding of
plaintiffs' argument, we have extracted two implicit assumptions:
- That there is a is a qualitative and quantitative difference between 'repression' and
mere 'forgetting;' and
- that this difference is of a sufficient quality to compel us to find that plaintiff is
excused by operation of the discovery rule and had no reason to have known about the
existence of her cause of action.
We have reviewed the expert testimony provided at the summary judgment hearing, and
reviewed numerous scientific journals submitted by the parties. We begin by attempting to
understand what repression is. Even defining the term is not easy; it originated with
Sigmund Freud who used the term differently and sometimes contradictorily throughout his
career. David S. Holmes, The Evidence for Repression: An Examination of Sixty Years of
Research, in REPRESSION AND DISASSOCIATION: IMPLICATIONS FOR PERSONALITY, THEORY,
PSYCHOPATHOLOGY AND HEALTH 8 5, 85-86 (J. Singer, ed. 1990) [hereinafter 'The Evidence for
Repression']. Holmes chooses to adopt a definition of repression based on the manner in
which the term is conventionally used:
'It is my belief that in its general use the concept of repression has three elements:
- repression is the selective forgetting of materials that cause the individual pain;
- repression is not under voluntary control; and
- repressed material is not lost but instead stored in the unconscious and can be returned
to consciousness if the anxiety that is associated with the memory is removed.
The assertion that repression is not under voluntary control differentiates repression
from suppression and denial, with which it is sometimes confused...'
The plaintiffs have provided us with several studies purporting to validate the
diagnosis of repression.
||J. Briere & J. Conte, 'Self-Reported Amnesia for Abuse in Adults Molested as
Children,' 6 J. TRAUMATIC STRESS 21 (1993);
||J. L. Herman & E. Schatzow, 'Recovery and Verification of Memories of Childhood
Sexual Trauma, 4 PSYCHOANALYTIC PSYCHIATRY 1 (1987);
||Elizabeth F. Loftus, et. al., 'Memories of Childhood Sexual Abuse, Remembering and
Repressing,' 18 PSYCHOL. WOMEN Q. 67 (1994);
||Linda M. Williams, 'Adult Memories of Child Sexual Abuse: Preliminary Findings from a
Longitudinal Study,' 5 AM SOC'Y PREVENTION CHILD ABUSE ADVISOR 19 (1992).
The Defendants have also offered significant scientific information tending to
discredit the concept of repression and its application in this setting. These arguments
against repression take several forms.
||First, the adversaries of repression stress that there is no empirical, scientific
evidence to support the claims that repression exists. The studies purporting to validate
repression theory are justly criticized as unscientific, unrepresentative, and biased. See
||Harrison G. Pope, Jr. & James I. Hudson, 'Can memories of childhood sexual abuse be
repressed?,' 25 PSYCHOL. MED. 121 (1995);
||The Evidence for Repression at 96-99.
The reason for the failure of repression enthusiasts to obtain empirical evidence may
be the nature of the process itself. As Dr. Jason Brandt of the Johns Hopkins University
School of Medicine testified:
'There are clear cases of people who claim that they
don't remember things that happened in their past for
whom no neurologic cause can be found. They don't have
brain damage. They have nothing organically wrong that
can account for [the claimed memory loss]. The question
whether they remember or not, whether they truly have
the mental state of a memory or not is impossible to
'We know what they are reporting, we don't know what they are experiencing.
Furthermore, I believe that it is virtually impossible to distinguish psychogenic amnesia
from faking, from malingering since the distinction between the two hinges on how
conscious it is to the person and how willful it is, how intentional it is. And how
conscious somebody is and how willful they're being are things that in spite of what we
may say, we really don't have any way of assessing.'
Just because there is so far no empirical validation for the theory of repression is
not alone sufficient reason to discount the concept, yet it does cast some doubt.
||Second, critics of repression theory point out that the scientific, and specifically,
the psychological community has not embraced repression theory, and that, in fact, serious
disagreement exists. While the existence of consensus (or lack thereof) in the scientific
community is a more familiar inquiry within the context of determining the admissibility
of scientific evidence under the test enunciated in Reed v. State, 283 Md. 374, 391 A.2d
364 (1978), it is also a useful measure for this Court to evaluate the acceptance, and
acceptability of a scientific theory.|
|Finally, critics of repression theory argue that the 'refreshing' or 'recovery' of
"repressed" memories is more complicated than repression proponents would have
us believe. This argument takes two forms:
- that memories refreshed with the assistance of a mental health professional are subject
to manipulations reflecting the biases of the treating professional; and
- that a repressed memory cannot be retrieved whole and intact from the cold storage of
Despite the defendants attempts to characterize this case as one of assisted or
enhanced memory recovery, this is simply not a situation in which the plaintiffs' memories
have been manipulated by one or more mental health professionals acting in the guise of
treatment. Nonetheless, in crafting a rule we must consider the apparently very real
dangers of iatrogenic (therapist created) memories of sexual child abuse. See
||Julie M. Kosmond Murray, 'Repression, Memory, and Suggestibility: A Call
for Limitations on the Admissibility of Repressed Memory Testimony in
Sexual Abuse Trials, 66 U. COLO. L. REV. 477 (1995);
||Richard Ofshe & Ethan Watters, 'Making Monsters', 30 SOC'Y 4
||Thomas M. Horner, et al., 'The Biases of Child Sexual Abuse Experts:
Believing is Seeing,' 21 BULL. AM. ACAD. PSYCHIATRY LAW 281 (1991).
After reviewing the arguments on both sides of the issue, we are unconvinced that
repression exists as a phenomenon separate and apart from the normal process of
forgetting. Because we find these two processes to be indistinguishable
scientifically, it follows that they should be treated the same legally. Therefore we hold
that the mental process of repression of memories of past sexual abuse does not activate
the discovery rule. The plaintiffs' suits are thus barred by the statute of limitations.
If the General Assembly should wish to rewrite the law, that is its prerogative and
As there is no contrary evidence in the record, we shall affirm the summary judgment in
favor of the defendants on the ground that plaintiffs' claims were barred by the statute
of limitations three years after they reached their eighteenth birthdays, for Doe after
August 11, 1974 and for Roe, after April 29, 1975.
Notes by the Court
||2: As to Doe, she [also] testified that the defendant placed a gun in her mouth. As to
Roe, she [also] testified that Defendant also administered douches and conducted pelvic
||3: It is unclear from the record the precise moment at which the plaintiffs ceased to
recall the attacks. Repression theory accommodates at least two models: "serial
repression" and "collective repression." As one pair of commentators
"In accordance with this robust repression concept, a person could, for example,
banish awareness of the experience of having been brutally raped one or a hundred times
during childhood. These distressing memories might be repressed serially, immediately
following each event. Alternatively, all the memories might be collectively repressed at
some time later, after the abuse stopped. If the memory of rapes were serially repressed,
a child could go from rape to rape ignorant of the previous assault. If memories were
collectively repressed, a child could have retained awareness of the rapes throughout the
years they were happening and repressed them as a group at some later moment." Richard
Ofshe & Ethan Watters, "Making Monsters, 30 Soc'y 4, 5 (March/April 1993).
Because we are evaluating the grant of summary judgment, all factual inferences must be
resolved in the non-moving party's favor. Thus we must accept that the repression occurred
in a serial fashion.
We note, however, that these plaintiffs have failed to offer substantial proof of when
the repression, be it "serial" or "collective," occurred. If the
repression occurred before the plaintiffs attained majority, the statute of limitations
could not begin to run until the plaintiffs reached majority, and depending on our
decision in this case, the discovery rule could potentially operate to toll the statute of
limitations. Limitations would not begin to run until the repression ended and the
resurfacing memories put the plaintiffs on sufficient notice.
Alternatively, however, if the repression happened in a "collective" fashion,
after the plaintiffs achieved majority, and the plaintiffs were under no other disability,
the statute of limitations immediately begins to run. Under traditional Maryland law, once
the statute of limitations begins to run against a plaintiff, ordinarily no subsequent
event will arrest it.
||Hogan v. Stumper, 257 Md. 520, 521, 263 A.2d 571, 572 (1970);
||Maurice v. Worden, 52 Md. 283 (1879);
||Fink v. Zepp, 76 Md. 182, 185, 24 A. 538, 539 (1892);
||Dugan v. Gittings, 3 Gill 138, 160-61 (1845) ("If subsequent disabilities were to
be regarded, the right of action might be saved for centuries; and the statute would be
rendered incapable of accomplishing the important purposes for which it was
Therefore, if Doe or Roe had not yet repressed the memories of the sexual assault by
the defendants by even the day after their attaining majority, the statute of limitations
barred these claims three years after their eighteenth birthdays, for Doe after August 11,
1974, and for Roe, after April 29, 1975.
Latest update: 2001-NOV-5
Author: B.A. Robinson