Challenge to Child Abuse : Court Case Widens Options for Adults Seeking Redress

Mary Doe’s story:

From infancy until she was about 5 years old, she was sexually molested, sodomized and raped by her father. She blocked all memory of that abuse for almost 20 years, going through a tumultuous adolescence and early adulthood that involved alcoholism, drug abuse, sexual promiscuity, low self-esteem and suicide attempts.

A drunk driving arrest led to mandatory treatment for alcoholism. Sobriety led to psychotherapy, and that process led to the release of all those repressed memories.

Now she is suing her father for damages.

That the case of Mary Doe vs. John Doe can go forward in California is due to a precedent-setting ruling Nov. 30 by the 6th District Court of Appeal in San Jose. The court ruled that, although her memory of the alleged abuse came long after the three-year statute of limitations had passed, Mary Doe could still sue her father based on a concept called “delayed discovery.” In cases such as Doe’s, the court ruled, the statute of limitations should begin running at the time the plaintiff remembers the alleged abuse rather than when it allegedly occurred.

It is a landmark decision that advocates are hailing, but calling not enough. They tend to agree, however, that it is one more step toward permitting adult victims of child sexual abuse to seek redress.

On the other hand, there are observers and experts who describe themselves as conflicted over the ruling--often citing belief in the justice, if not the wisdom, of such suits. They fear false accusations, or see such suits as detrimental to the well-being of the victim or ruinous to what is left of a family relationship.

Shoneen Gervich, a Bay Area spokesperson for Victims of Child Abuse Laws (VOCAL), said she supported the recent court of appeal decision but voiced some reservations about adult civil suits.

“In some situations, people have been led through an overly zealous therapist to induce memories which they label as memories of incest,” she said. “I know of one licensed therapist who told me every single client who comes to her, through a process of regression, discovers they were sexually abused as a young child . . . . But memories are so vague and unspecific at that age.”

In the meantime, the suits continue to be filed.

(Doe originally filed suit under her real name, as most plaintiffs do, according to her attorney, Shari Karney of Encino. But at the request of the defense, an agreement was reached that the record be sealed.)

Throughout the ‘80s child sexual abuse, including incest, has been increasingly on the public mind--as lawsuits, allegations and statistical information come to light.

A recent issue of Los Angeles Lawyer magazine reported estimates that one of every three girls and one of every 10 boys is sexually abused or molested before age 18, that 4- to 9-year-olds are at particularly high risk, that 16% of all girls will be victims of incest, and that reports of incest of male children are on the rise. Although most media attention has focused on criminal proceedings, professionals in the fields of law, mental health and child welfare say that civil suits filed by alleged adult victims of child sexual abuse are increasing.

At the Los Angeles County Bar Assn., Shelly Ackerman, directing attorney for the lawyer referral and information service, is putting together a panel of attorneys with expertise in this area. The panel and an upcoming attorney training workshop were instigated by Kay Shafer, a lawyer who has worked on such cases, written on the subject, and continues to do pro bono work on the issue.

Shafer said the Women’s Lawyers Assn. will be involved in the panel and hopes to make a presentation on the subject at the national convention of the American Bar Assn., being held here in February.

“We’re not advocates (of such suits),” Ackerman said, “but we found such a need for attorneys. The civil suits are increasing and we’re a reflection of that.”

Two name plates on the door in the Encino office building announce “Shari L. Karney, Attorney at Law” and “Karney Writing Course.” Inside, the mauve, pink and gray waiting room is stocked with copies of Savvy, Ms. and Connoisseur magazines, a tin of cookies, and a dish of miniature candy bars. A Lucite-framed copy of a Glamour magazine article on incest lawsuits that featured Karney hangs on the wall.

Karney, who has often described herself as a survivor of child sexual abuse, exudes self-confidence. She is full of words like empowering , calls herself a “heller,” and says, “I became devictimized. I really got grounded in my own power.”

Her practice consists exclusively of adult survivors (her preferred word) of child sexual abuse, of whom about 25% are male, she said. Because many of her clients cannot afford the costs of litigation, she supports much of her practice with the proceeds of her writing course, which prepares attorneys to pass the state bar. Her answering tape, with information on the course, assures the caller, “You can be a winner too.”

Her self-confidence is hard-won. A victim of sexual abuse as a child, she says, she repressed her memories until she was 29. Then, while representing a 3-year-old survivor of incest, she said she “sort of lost it” during cross-examination of the defendant. “The judge cited me for contempt. I didn’t stop and wound up spending a night in jail.”

She then went into therapy with marriage, family and child counselor Arlene Drake, who is now Mary Doe’s therapist and has an office adjoining Karney’s. Since completing therapy with Drake, Karney has worked with her on several cases. They share similar views and use similar language in discussing the subject.

Karney said Drake “was sort of the one who made me take a stand on the issue. She made me write a legal brief representing myself” to her therapy group.

Although she has publicly accused her molester, Karney, 37, never did sue, but dealing with her own sexual abuse, she said, “changed my life, career, what I look like, the way I act.”

Karney, who has 16 child sexual abuse cases pending, talks tough about incest and what its survivors and their advocates are up against in the courts and society:

“The most perfect crime is to molest your own child. There’s no accountability. We’re trying to get that stopped. . . . People ask, ‘Isn’t this revenge, suing the parent?’ Your parents are there to love and protect you. They’ve violated that. The relationship is broken already. There is no family to save.

“All who’ve been (victims of incest) and deal with it, become orphaned. The troublemaker, the truth-teller becomes isolated and the family regroups without you.”

Karney believes that “the conspiracy of silence in the family is extended to the legal system. . . . It (the legal system) turns its back. Justice is blind to incest. I think it all comes down from women and children being chattel. The first statutes (against incest) were property statutes. They did not want to ruin the stock.”

Next door, Arlene Drake said she would like to see more civil suits (“The aggressors need to be held accountable”), but doubts that many victims will want to put themselves through the ordeal.

The room where she sees her clients individually and in groups is light, and furnished with low, wrap-around couches. Several teddy bears are seated on them. “Some people like to hug them,” she said.

She is a soft-spoken woman with a gentle manner, but the subject frequently leads her to take on a disgusted tone.

“Look at the family,” she said. “The only one accountable is the victim. The crime isn’t the incest. Talking about it seems to be the crime. (People say) you risk losing your family. Well, guess what? Most times I think they’re better off being out, creating a new family than living in that muck and mire.”

Drake rejects the idea that incest is symptomatic of a more general breakdown of the family. Most of her practice, she said, consists of adults who have been abused as children. “These cases go back to incest in the ‘50s and ‘40s when we had those ‘great’ families. . . . I do not feel the family would have broken down if it had really been healthy.”

She described the steps a victim has to go through in dealing with sexual abuse, all of them painful and difficult. After going through the remembering, she said, the victim then has to believe herself.

The guilt and shame of blaming oneself must be overcome with the knowledge that the victim was the one wronged; only then is a confrontation possible, Drake said. The victim needs to be able to say, “ ‘This is what you did to me. Hear it.’

“My job is to deal with what comes up at every step of the way, including legal confrontation . . . to hold the light out there, (to help them) know they can get through it, if they just push beyond the fear.”

Sitting in Karney’s office, in her first interview after the decision, Mary Doe was flanked by her therapist and lawyer. She seemed to have a comfortable, affectionate relationship with both. They praised her warmly, encouraged her, almost tried to speak for her at times, jogging her memory, prompting her, finishing a sentence. Finally, laughing, they agreed to restrain themselves. Drake commented on the “remarkable difference” between Doe’s first visit to her office--when she scrunched in the corner of the sofa, dwarfed in oversized clothes--and the well-groomed young woman sitting there now, articulate in spite of occasional tears and shakiness.

“Who would have ever thought I could even say the word incest ?” Doe asked, smiling.

The first time she “said” the word, she said, was while she was in therapy with Drake. She actually wrote on a piece of paper, doodling. “I remember writing the words father and incest down, not knowing why. And then I started screaming and crying. It was a moment of truth.”

Before that she had vague, undefined fears, which she avoided by “taking a lot of chemicals and food,” and she dropped earlier attempts at therapy when she started feeling on the spot. Hypnosis with Drake helped Doe retrieve the memories. She wrote many of them down in a letter that is now part of her case file.

“I confronted my father through the mail when we served him his papers,” she said.

“We made him an offer,” Karney said. “If he would admit liability and go into therapy with her, try to heal with her, we would drop the suit. This was not amenable to him.”

Her parents are divorced and reactions to Doe’s legal action have followed the lines of that division. Her mother’s side of the family supports her. Her mother, in retrospect, corroborates Doe’s story. “Our stories meshed,” Doe said.

Her father has countersued her and her mother for slander. And Doe’s relationship with her father’s side of the family has ended, she said. Their reaction, like her father’s on hearing of the legal action, was, “ ‘What is this crazy alcoholic doing now? Why is she doing this?’ ” Doe said.

Why is she doing it?

“I’ve never won anything with my father. He has always been the one in power, hurting me. I’ve started to come into myself, to be a little more confident. He’s not quite the same monster he was to me as a child.”

In a larger spectrum, she said, she sees cases like hers as helping other victims, or as serving as a preventive--warning would-be molesters they won’t get away with it.

“I’m willing to go to trial for the same reason,” she said. “Win or lose, it’s a change in the right direction. We have to make changes in the legal system.”

A friend had told her just that morning, she said, when she described her reluctance to be interviewed, “Hey you’re not doing this for yourself anymore.”

She has come a long way. Her lawyer and therapist tell her so often, and she describes herself similarly. However, she said, she still has difficulty trusting people, forming intimate relationships.

And one other thing.

“For the first time in my life I’m learning and seeing the real value of children,” she said. “Children didn’t seem that important. I’d think, ‘How can they be worth that much if they’re treated worthlessly.’ Now I’ve begun seeing how innocent children really are.”

The observation brought her to tears. Crying and struggling to speak, she said, “They’re perfect. They just need to be loved and kept safe and free from terror.”

And, feeling newly powerful and still vulnerable, she is ready to accuse her father in court.

“I feel conflicted emotionally. Part of me is still a little child who loves him and wishes he’d apologize and say he was sorry. It’s a fantasy. . . . On top of that there’s his denial. I don’t even feel much anger. I kind of expected he’d have a reaction like this. It’s sad letting go. It’s the end of a relationship, but I don’t want a relationship based on lies and needing a victim.”

Why sue? Is it the right choice for a victim to make? What good does it do the victim, or society? What harm?

“Everybody who has come to me said they want to do it for two things, for themselves (and society),” said Doe’s other counsel, San Francisco attorney Mary Williams, who devotes her law practice to sex abuse issues. “They see it as an expression of standing up as an adult to this person who abused them. It represents the whole world of people they could not stand up to. It’s an experience of getting out of the victim psychology. . . . A lot don’t come. They do not feel it would be therapeutic. It’s a self-selected group.”

The money is less important, but she said, “it’s good to get money. Often they (victims of sexual abuse) have not done well. They have wasted years, needed therapy, they’re getting their lives together, it’s not bad to have a sense ‘this person paid me something.’ ”

And its social value, Williams said, is “wonderful. The court system is one of the major educational vehicles in our society. It gets into the (public) consciousness. There’s less and less secrecy, more understanding.”

There are observers, however, who question some aspects of the growing interest in redressing alleged sexual abuse in court.

Shoneen Gervich maintains that some of the effects attributed to early child sexual abuse, such as inability to maintain relationships, could be attributed to other causes.

However, she said, “we support the right of all victims to claim damages. That is the balancing factor. There should be civil recourse for people who have been wronged.”

Dr. Sharon Satterfield, a child psychiatrist at the University of Minnesota’s Department of Family Practice, has treated sexually abused children and adolescents and adolescent perpetrators of sexual abuse, worked with adult victims and perpetrators and, generally, she said, “seen a lot of sexual abuse from both sides.

“Until you’ve seen both sides of it, you can’t understand it. It’s an incredibly emotionally laden issue. Many of the players have been sexually abused themselves. All sides have axes to grind. Objectivity is non-existent.”

One patient of hers, she said, came from a support group and described vague memories and feelings, asking if that meant she was an incest victim.

“I don’t know,” she told her, “but don’t push it too hard. It will come back in time.” Satterfield was not discounting group therapy, however, saying instead that such suggestibility was “an element that sometimes is pushed too far, but it does happen that women in therapy and group therapy do recall (such repressed memories).”

As for civil lawsuits, she said, “I’m all for it. If (the victims) really do suffer long-term damages, and that’s an if--some do not--then they deserve some kind of remuneration.”

The problem with such suits, she said, is that “it all boils down to her word against his, and sometimes she ends up coming off worse than when she started.” That being so, she said, although she personally would like to see all rapists in jail, all molesters sued, she cannot grind that ax in therapy with her clients. Their decision to sue has to be what is best for their particular circumstances.

Los Angeles psychiatrist Dr. Robin Frasier, who has treated many incest victims, said she had some reservations about adult victims choosing to sue.

While not questioning that victims deserve damages, she voiced concern that, in most instances, little good would come out of it for the victim--and that the experience might even “compound the victimization.” Frasier noted the difficult burden of proof in a court of law, and the often brutal experience of cross-examination by defense lawyers.

One danger, she said, is whether a decision to sue is really made by the victim, or whether others persuade the victim to take that route.

“An issue that is dominant in all people who’ve suffered from incest is the issue of boundaries. The child is never encouraged, never supported in saying, ‘This is not right for me.’ This seems to re-create an incestuous dynamic. (Incest victims) are people who can be swayed by strong people. (They) are more vulnerable to being told a thing is good for you when it isn’t.”

The reasons voiced for suing, she said, are “very valid, noble: to make sure that people who are perpetrators are stopped, but I’m not so sure about selecting out people who can stand it (the court process).”

Attorney Williams is familiar with concerns that litigation might not be in the best mental health interests of the victim. “There’s some truth to that,” she said. “But I think people who feel that way, don’t come in. . . . Before I take on a case, I tell the client what they’ll have to go through. Some choose not to go through with it.”

In San Jose, Peggie Stoddard is chapter developer for Parents United International--a component of the Institute to the Community as Extended Family--a self-help program that brings together parents with a history of being sexual abusers and those who are not offenders. ICEF also has daughter and son groups for victims and siblings, and groups for adults molested as children.

Her organization, she said, neither encourages nor discourages lawsuits, but supports the person in whatever decision is made.

Based on her experience, she said, people who decide to sue are usually “ones who have been in therapy, worked hard at it and are ready to reconcile. Everybody wants family no matter how angry they are. But, if they don’t get any (response), if the offender still denies it, then they’ll get so angry they seek that route.”

Stoddard knows one former group member who, she said, sued her father successfully and “got beaucoup money. But I know she would come in here today and tell me, ‘I would rather have had a relationship and my father’s love than the money.’ It isn’t the money. It really isn’t.”

The American Civil Liberties Union Foundation of Southern California filed a joint friend of the court brief along with several other groups--including the California Consortium of Child Abuse Counsels, the San Francisco Women Lawyers Alliance and the California Child, Youth and Family Coalition--in the Doe appeal. At the ACLU office in Los Angeles, staff attorney Jon Davidson called the Doe decision a step in the right direction, but said it needs to go further. The ACLU’s interest is mainly “a question of due process, whether an avenue of redress of wrongs is available . . . . There’s a conspiracy of silence in society (about incest) and the legal system has mirrored that.”

Davidson said children deal with molestation by someone they depend on by going through denial, guilt, even developing a split personality and deciding “it’s not happening to me; it’s happening to someone else.”

“People, including lawyers and judges, have difficulty understanding the nature of the injury,” attorney Kay Shafer said. “What people do not understand with delayed discovery is that it was deliberately forgotten by the child to remain sane.”

In an essay commenting on an article by Shafer in the September issue of Los Angeles Lawyer, Los Angeles County Bar Assn. President Harry Hathaway praised the article but cautioned against “a lot of people possibly being wrongfully tarred with the stigma of child molester--something you or I would fear more than any other accusation.”

“There is a risk some . . . will be falsely accused,” Davidson agreed. “That is part of our legal system. There is always a risk people will be falsely accused.”

Before 1986, the statute of limitations on child sexual abuse suits ran for one year, starting when the plaintiff reached majority at 18. Thus if a teen-ager had not filed a suit by age 19, he or she had no further legal avenue.

Mary Doe’s attorneys, Karney and Williams, helped draft the legislation that extended the statute from the 19th to 21st year. The use of delayed discovery to extend the statute beyond age 21 was left to the discretion of the courts--which often disallowed it, as the Santa Clara County court did with Mary Doe.

In 1986, when Mary Doe was 24, she filed suit there, where the incidents are alleged to have happened and where her father still lives. The trial court dismissed the case based on the three-year statute of limitations.

While the case was under appeal, the same 6th District Court of Appeal ruled in another case that delayed discovery could not be used by plaintiffs who say that although they did not repress memory of sexual abuse, they did not know it was the cause of their injuries. Thus, the ruling on Doe vs. Doe took advocates by surprise.

“We expected to lose,” Karney said flatly. But neither she nor her colleagues are satisfied and call the distinction the court has made between the two types of victims unfair.

A bill pending in the state Legislature, S.B.108, which Williams and Karney helped draft, is seen by many advocates to resolve existing inadequacies in the law. It is scheduled for a committee hearing in January, but Rubin Lopez, chief counsel for the Assembly Judiciary Committee, said the bill faces some opposition.

“The opposition is not to (the concept of) delayed discovery in any type of case,” he said. “Rather the criticism is that it’s too broad and open-ended.” The bill’s proponents have been working with committee staff to arrive at a solution, he added.

Meanwhile, Karney has appeared on television and radio talk shows, has hired a public relations firm and has prepared a four-page biography that starts with: “She’s a lioness with an intriguing story and a compelling role as a woman, attorney and activist . . . a woman of the ‘90s.”

Clearly she is not averse to the limelight, but also seems to see it as crucial to her work.

She has stopped taking new cases, she said.

“I see my work as a much bigger picture. Litigating case by case takes years to help a small number of people. The law is unclear right now. I’d like to help change the law and then train other attorneys.

“We’re attempting to hold the incest perpetrator accountable. He has never been accountable in the history of the law.”

THE RULING

A person who has repressed memory of childhood sexual abuse can still sue the perpetrator when the abuse survivor remembers that abuse as an adult--even though the normal statute of limitations for such a suit has long elapsed. The court ruled that in such cases, where injuries are in essence invisible, the statute of limitations doesn’t begin to run until the abuse survivor has discovered--or logically ought to have discovered--the facts of the case.