Discussion of the Arizona's recognition of repressed memory syndrome and application of the delayed discovery and "unsound mind" extensions to the statute of limitations for victims of childhood sexual abuse.

Site Links:

Full text of the Doe v. Roe decision in HTML format

Topic Home Page: Resources for Victims of Sexual Abuse

Topic Feature: Remedies for Victims of Sexual Abuse

Topic Feature: Statutes of Limitation for Victims of Sexual Abuse

  Victims Law  

Florez Revisited:
Arizona Rethinks Its Approach to Extending Statutes of Limitation in Childhood Sexual Abuse Cases

Susan K. Smith, Atty.

In Florez v. Sargeant, 917 P.2d 250 (Ariz. 1996), the Supreme Court of Arizona declined to apply the state's mental disability tolling provision /1/ to cases of posttraumatic stress disorder in order to extend the state's two-year statute of limitations. Ariz. Rev. Stat. § 12-542. The Court strictly construed the statutory provision applying to persons of "unsound mind" as those who are not capable of managing their daily affairs or understanding their legal rights and liabilities. The Court would not relax the definition for victims of sexual abuse who are unable to pursue the subject matter of their claims. Because the Florez court found no evidence suggesting plaintiffs were unable to carry on their normal daily activities, the court declined to apply the mental disability tolling statute. The Court concluded that it is up to the legislature to amend the statute and broaden the category of disability for victims of sexual abuse.

One year later, the Court of Appeals (Arizona's lower appellate court) followed Florez, but offered up an unusual criticism of the reasoning of the Supreme Court in the process. Nolde v. Frankie, 949 P.2d 511 (Ariz. App. 1997).

Now, only two years after being issued, the precedential effect of Florez has been greatly undermined by the Supreme Court's subsequent decision in Doe v. Roe, 266 Ariz. Adv. Rep. 19 (April 7, 1998), 955 P.2d 951. Read the full text of the Doe v. Roe decision. Sitting en banc with all its justices, the unanimous Arizona court held  that repressed memory arising out of childhood sexual abuse (CSA) may trigger the state's discovery and "unsound mind" doctrines, effectively tolling (extending) the Statute of Limitations. The court reversed the trial court's entry of summary judgment which had precluded the victim from taking her case to trial.

The Court reviewed the controversy and literature surrounding repressed memory and "false" memory and concluded firmly: "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." 266 Ariz. Adv. Rep. 19, at ¶ 27. The Court's incursion into the merits of the false memory debate was most unusual because the issue was not before it. The parties had stipulated that the scientific issues would be addressed in the trial court at a later date if and when the case was remanded. The Supreme Court  preceded its long discussion of the repressed memory/false memory debate with a statement that the discussion was included to allow readers to understand the "mechanics" of the phenomenon. Although the Court took pains to balance its comments and acknowledge the possibility of implanted memories, the court concluded that even if the phenomenon of false memory was true in some cases, those examples did not negate the validity of repressed memory. "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." Id., at ¶ 24.

The plaintiff in Doe presented with a typical pattern of memory recollection and responses to her memory. She began to have recovered memories, did not believe them and was "in denial" that the abuse occurred. She did not confront her parents with the abuse until several years after she began to recollect the events from her childhood. Indeed, she continued to attend holiday celebrations with her family without even mentioning that she was experiencing flashbacks. As a result, she did not act upon her recovered memories until after the 2-year period dating back to the first "discovery" had expired. The court rationalized the delay, reasoning that the victim "did not recover a sufficient quantum of memories to establish a claim until the majority of her memories surfaced" and held that the question of when she "discovered" her claim for purposes of calculating the statute of limitations presented a question for the jury. "Determining the time when the quantum of knowledge was sufficient is a task reserved exclusively to the jury." Id., at ¶¶ 34-36.

Thus, the Arizona court has created a middle ground between "realization" discovery rules and strict discovery rules. Realization/delayed discovery doctrines will toll the expiration of the statute of limitation until the victim discovers the injury and/or the fact that the injury or illness suffered by the victim was caused by the abuse. For an example, see Atty. Jo-Hanna Read's explanation of how Washington's statute works. By articulating the "quantum of knowledge" analysis in Doe, the Arizona court  recognized that discovery periods which begin to run from the first instance of a flashback or fragmented memory allow claims to be lost before claimants have a meaningful realization of what they have experienced and the fact that they may have a claim.

While most victim advocates would have been happy with the court's re-articulation of the discovery doctrine, the Supreme Court went on to address and relax the state's "unsound mind" tolling doctrine. The unsound mind doctrine differs from the discovery rule because it requires that the factfinder determine whether the plaintiff had the mental capacity to bring the claim. Arizona's unsound mind doctrine contained two elements of proof; namely,  that the claimant 1) was unable to manage daily affairs and 2) unable to understand legal rights and responsibilities. Arizona courts were in conflict as to whether one or both of the elements of proof were required to establish the exception. The Doe court confirmed "when the facts require the court to focus on the second part of the ... test, inability to understand and assert legal rights may provide the basis for concluding that the plaintiff was of unsound mind." Id., at 52. Because there was evidence in Doe that the victim went through periods when she was experiencing suicidal ideation, denial and required therapy and institutionalization, the court concluded that application of the unsound mind doctrine also presented a question for the jury.  "It is not the court's role to weigh conflicting evidence to determine whether the plaintiff was capable of functioning on a day-to-day basis. That role would encroach upon the jury's function." Id., at ¶ 45.

Survivors must be cautioned that the Doe court's more expansive reading of these tolling doctrines will only get litigants through the  courthouse door. Victims who wish to avail themselves of these exceptions to the statute of limitations will have to carry the burden of proof and persuasion that the doctrines are properly applied to the facts of their cases.

The Doe v. Roe case is an important decision for a variety of reasons. The opinion will be noted because the Arizona Supreme Court changed direction on both of these doctrines of exception dramatically in the short time since it issued the harsh opinion in Florez.  Although the Court did not expressly overrule Florez, the court very carefully distinguished the prior decision and re-explained the delayed discovery and unsound mind tolling doctrines within the context of an archetypical repressed memory factual context. Because of the typicality of the Doe plaintiff and the care that the court took to rationalize her experiences in the context of the tolling doctrines, courts and litigants have a lot to draw from the in the Arizona opinion. The court went out of its way to recognize the validity of the repressed memory phenomenon and to affirm that juries, and not appellate courts, should be deciding the merits of scientific evidence as applied to individual cases. The Arizona Supreme Court's balanced and well-reasoned approach should prove to be influential and makes a significant contribution to the delayed discovery/repressed memory case law.

__________

/1/ A "tolling" provision or doctrine is a rule of law that will excuse  expiration of a statute of limitations if the conditions of the rule are met. For a general discussion of tolling doctrines in childhood sexual abuse cases, see Civil Remedies for Victims of Sexual Abuse. <Back>