1996 MARYLAND COURT DECISION

"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:

1. That there is a is a qualitative and quantitative difference between 'repression' and mere 'forgetting;' and
2. 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:

1. repression is the selective forgetting of materials that cause the individual pain;
2. repression is not under voluntary control; and
3. 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 e.g. 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 determine.' '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 repression.

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 (March/April 1993); 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 responsibility.

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.