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Ault v. Jasko8/31/1994
m which to craft a rule of law that will protect those accused of being abusers and those who have been abused or believe they have been abused as children. The proper forum to determine such issues is in the General Assembly where all views, all relevant information, all scientific data, and all empirical studies can be presented, reviewed and debated by those who have an interest in the issue. That process did not occur, nor could it have occurred, in the case before us.
There probably will be a day, as there has been regarding the forensic use of DNA, when courts can be given reliable, competent information on the issue of repressed memory. That day is not here. We should dispose of this case with a strong dose of judicial restraint. Until the General Assembly acts on the issue, we should apply our holding in Doe v. First United Methodist Church, (1994), 68 Ohio St.3d 531, 629 N.E.2d 402, and hold that Kathy Ault's cause of action for assault and battery against John Jasko should have been filed within one year after the date of her eighteenth birthday.
I would reverse the judgment of the court of appeals and reinstate the judgment of the trial court.
WRIGHT, J., dissenting. Today the majority, applies a rule of discovery to toll the statute of limitations in cases alleging childhood sexual abuse where the alleged victim claims to have repressed the memory of the abuse until a later time. Consequently, the majority adopts a rule of accrual based on "when the [alleged] victim recalls or otherwise discovers" the earlier abuse, regardless of the conditions under which the alleged victim subsequently recovers the repressed memory. Because I believe the methods used by psychologists anspsychoanalysts to retrieve repressed memories are unreliable and are not sufficiently established to have gained a general acceptance in the fields of either forensic or clinical psychology, I respectfully dissent.
This case presents a very troubling issue, one which evokes deep and conflicting emotions. If reports of the prevalence of childhood sexual abuse are true, our decision today will have far-ranging consequences. Most of these cases pit family members against family members in a painful confrontation. I struggled at length with this issue before I finally arrived at my current position. I am quite disturbed by the majority's almost casual treatment of its decision to extend a rule of discovery to these "repressed memory" cases without fully discussing all the issues, including the fact that there is sharp disagreement in the psychology community as to whether a repressed memory actually can be retrieved and, if it can, whether the memory is accurate. Because the majority has failed to do so, I feel compelled to offer the following discourse.
I must note first that most studies dealing with the memory of children indicate that a child's first memories do not occur until about the age of three or four and that adults have no recall of specific events that occurred before the age of two. Encyclopedia of Learning and Memory (1992) 26-29. Moreover, studies have shown that while all three stages of memory-perception, retention, and retrieval-are susceptible to influence and suggestion, the last stage, retrieval, is especially prone to new inputs and suggestive questioning. 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, 155-158.
It is undisputed that memory may be repressed. Repression can be caused by extreme physical injury (such as that experienced by the "(Central Park Jogger" who was brutally beaten and repeatedly raped an
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