Ault v. Jasko

Alice Robie Resnick, J.,

concurring. I concur since I am satisfied that sufficient scientific evidence verifies that incidents of repressed memory in child sexual abuse cases do occur. Therefore, this court should not dismiss the phenomenon out of hand. At the same time, it is appropriate to approach the subject with caution.

I emphasize that this case comes to us to review a trial court’s granting of a Civ.R. 12(B)(6) motion to dismiss. Therefore, we are required to accept the allegations of the complaint as true. In her complaint, Kathy Ault claims that she repressed memories of the sexual abuse perpetrated upon her by her father during her minority until she began to recover the memories in 1990 and verified them on October 23, 1990, and demands judgment against her father for that abuse. By granting the motion to dismiss,' the trial court found that plaintiff could prove no set of facts entitling her to recovery, even though she brought suit within one year of her alleged recovery of memory.1 If we were to uphold the trial court’s judgment, it would mean that repression of memory of sexual abuse as a child by a plaintiff over the age of nineteen could never overcome the statute of limitations. I am not prepared to totally slam the door to our courtrooms shut on all plaintiffs claiming repressed memory of sexual abuse who seek redress after their nineteenth birthday. We must leave the courthouse door ajar for the plaintiff with a valid claim who repressed his or her memory.

Even if one is troubled by the potential unreliability of recovered memories, as I am, this case is not one for the expression of skepticism. We are not finding that accrual of the cause of action must be delayed in every case alleging that a *119plaintiff has recovered a repressed memory of sexual abuse.2 We merely find, taking the allegations of appellee’s complaint as true, that the trial court erred in granting the Civ.R. 12(B)(6) motion to dismiss, because a discovery rule is appropriate in the proper case. Whether this is such a case is not a question before us at this time.

Paragraph two of the syllabus requires that upon remand, when this case proceeds beyond the allegations of the complaint, questions of fact will exist as to when the victim (appellee) “recall[ed]” or “otherwise diseover[ed]” or “should have discovered” the alleged abuse. When those questions are answered, it will be possible for the trial judge to rule on the effect of the statute of limitations on appellee’s claim. If appellee overcomes the statute of limitations obstacle, she will have an opportunity to prevail on the merits of her claim.

Since this case comes to us only on appellee’s complaint, it would be pure speculation to give guidance to the trial court concerning standards to be applied to determine when appellee actually “recall[ed]” or “otherwise discover[ed]” or “should have discovered” the alleged abuse. Those standards will commence to be established in this case on remand, and will gradually evolve in other future cases. It is not possible at this time to establish workable standards which would govern all future cases.

I agree with the dissenting opinions that the General Assembly is the most appropriate body to establish a discovery rule in child sexual abuse cases. However, I believe that until the General Assembly chooses to act this court is capable of interpreting the relevant statute of limitations to allow potentially valid claims to proceed. Doing nothing would penalize the individual who has subconsciously invoked a coping mechanism to survive the effects of cruel abuse. I am impressed by the argument that “the law should not protect perpetrators who successfully traumatize their victims into repression.” Ernsdorff & Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression (1993), 84 J.Crim.L. & Criminology 129, 145.

Douglas, J., concurs in the foregoing concurring opinion.

. Since the trial court granted the motion to dismiss, the judge did not consider any of the facts of this case beyond the face of the complaint; otherwise, the court would have had to convert the motion into one for summary judgment before ruling on it. The trial judge thus found that plaintiffs claim of sexual abuse (accompanied by her allegation that she had recovered a repressed memory) was barred by the statute of limitations without regard to the circumstances surrounding the creation or recovery of the memory.

. It appears that the concept of delayed accrual of a cause of action may differ somewhat from the concept of tolling of a statute of limitations. However, as this court has in the past used the concepts interchangeably to mean essentially the same thing (see, generally, Melnyk v. Cleveland Clinic [1972], 32 Ohio St.2d 198, 61 O.O.2d 430, 290 N.E.2d 916; Doe v. First United Methodist Church [1994], 68 Ohio St.3d 531, 629 N.E.2d 402), I do not focus on the distinction at the present time, other than pointing out that a difference exists.