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Lovelace v. Keohane2/11/1992
facts would also satisfy the two-prong test developed in Meiers-Post v. Schafer, 170 Mich. App. 174, 427 N.W.2d 606 (1988). The Schafer court held that a sexual abuse victim could bring an action after the time allowed by the statute of limitations if she could prove to the trier of fact that: (1) she had psychologically repressed the memory of the facts upon which the claim was predicated; and (2) there was corroborating evidence that the sexual abuse actually occurred. Id. 427 N.W.2d at 610. This test seems to strike a fair balance between the risk of stale claims and the unfairness of precluding justifiable causes of action.
When asked, most courts have allowed victims of sexual abuse the benefit of the discovery rule if they have repressed the memory of the traumatic events. Nicolette v. Carey, 751 F. Supp. 695 (W.D.Mich. 1990) (applying Michigan law); Johnson v. Johnson, 701 F. Supp. 1363 (N.D.Ill. 1988) (applying Illinois law); Evans v. Eckelman, 216 Cal. App.3d 1609, 265 Cal. Rptr. 605 (1990); Mary D. v. John D., 216 Cal. App.3d 285, 264 Cal. Rptr. 633 (1989); Snyder v. Boy Scouts of America, Inc., 205 Cal. App.3d 1318, 253 Cal. Rptr. 156 (1988); DeRose v. Carswell, 196 Cal. App.3d 1011, 242 Cal. Rptr. 368 (1987); Callahan v. State, 464 N.W.2d 268 (Iowa 1990); Schafer, 427 N.W.2d 606; E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988); Osland v. Osland, 442 N.W.2d 907 (N.D. 1989); Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986) (rule applies when "objective verifiable evidence" is present); Kaiser v. Milliman, 50 Wash. App. 235, 747 P.2d 1130 (1987); Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (App. 1987). But see Baily v. Lewis, 763 F. Supp. 802 (E.D.Pa. 1991) (applying Pennsylvania law); Lindabury v. Lindabury, 552 So.2d 1117 (Fla. Dist. Ct. App. 1989); Whatcott v. Whatcott, 790 P.2d 578 (Utah App. 1990). See also Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 (1990) (plaintiff's claim is not barred if there is clear and convincing evidence of sexual abuse by named defendant). The policy considerations underlying the discovery rule should compel the same result for Lovelace.
Perhaps what is most disturbing about today's majority pronouncement is its apparent refusal to recognize MPD and other conditions involving repression of the memory of severely traumatic events. If the facts are as Lovelace alleges, this case is one of the strongest imaginable in terms of documentation of the abuse that occurred. By refusing to apply the discovery rule to such a compelling set of facts, the majority forecloses the opportunity for most victims of sexual abuse to pursue a legal remedy if they have repressed the memory of the traumatic events. Lovelace should have been allowed to present her evidence to the trier of fact.
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