Impossible to Forget: Maness v. Gordon and Alaska's Response to the Repressed Memory Controversy

• Jurisdiction: Alaska,United States
• Publication year: 2016
• Citation: Vol. 33

§ 33 Alaska L. Rev. 157. IMPOSSIBLE TO FORGET: MANESS V. GORDON AND ALASKA'S RESPONSE TO THE REPRESSED MEMORY CONTROVERSY

Alaska Law Review
Volume 33, No. 1, June 2016
Cited: 33 Alaska L. Rev. 157

IMPOSSIBLE TO FORGET: MANESS V. GORDON AND ALASKA'S RESPONSE TO THE REPRESSED MEMORY CONTROVERSY

Iuniki L. Ikahihifo-Bender ^[*]

ABSTRACT

Alaska's long-awaited legal approach to repressed memory syndrome and the discovery rule was announced in 2014 in the case of Maness v. Gordon. The Alaska Supreme Court held that discovery rule could not be invoked to toll the statute of limitations in repressed memory syndrome cases absent corroborating expert testimony. The court's brief opinion in Maness provided little discussion on the scientific controversy surrounding repressed memory syndrome, created a relatively unique rule, and ultimately did not decide whether expert testimony would save a repressed memory syndrome claim. This Note aims to provide a deeper understanding of the controversy surrounding repressed memory syndrome in the scientific community and to compare and contrast Alaska's new rule with the approaches of other states. Finally, this Note presents some alternative approaches the Alaska Legislature could consider and raises future issues that Maness did not address.

INTRODUCTION

There is a pain - so utter -

It swallows substance up -

Then covers the Abyss with Trance -

So Memory can step

Around - across - upon it -

As One within a Swoon -

Goes safely - where an open eye -

Would drop Him - Bone by Bone ^[1]

It is common knowledge that amnesia may result from physical brain trauma. Take the widely publicized case of Trisha Meili, the Central Park Jogger, for example. In 1989, Meili was found in the New York City park brutally raped, beaten, and in a comatose state. ^[2] Meili's head injuries were so severe that she lost all memories of her activities between the four hours prior to her assault and the six weeks after; even today, she remains unable to recover them. ^[3] The causal relationship between the incident and Meili's memory loss is tragic and self-evident.

But what about severe memory loss when physical injury to the brain has not occurred? The American Psychiatric Association acknowledges that amnesia may also result from traumatic experience, unconnected to head injury. ^[4] Memory repression, the theory goes, can occur as a coping mechanism for individuals that have experienced traumatic events. ^[5] Uninjured veterans ^[6] and incest victims ^[7] have corroborated the existence of such a condition. Still, it remains hard to fathom the phenomena and the mechanics it works.

Perhaps the biggest concern surrounding the believability of repressed memories is that they are, by definition, difficult to study and prove. Researchers cannot ethically design experiments where the types of traumatic events most commonly associated with memory repression, such as child molestation, are inflicted upon participants. Even if researchers could design such experiments, the fact that memory repression is unconscious prevents the creation of effective paradigms through which to obtain objective answers. How can we be sure that such amnesia really occurs? And, if we can't be sure, what should we do when alleged victims claim to have rediscovered these memories decades after the fact and desire to sue in court?

Until recently, Alaska case law pertaining to rediscovered repressed memories claims was nonexistent. Alaska was one of the last states silent towards the issue, despite having one of the top five rates of physical and sexual abuse of children in the United States ^[8] and a high percentage of adult female sexual violence victims, approximately thirty-seven out of every one-hundred. ^[9] It remains unclear whether the absence of repressed memory case law was due to a lack of repressed memory syndrome in Alaska or, rather, to victims' reluctance to bring recovered memory claims forward.

In 2014 the Alaska Supreme Court finally had the opportunity to determine the state's stance on how to deal with repressed memory syndrome and statute of limitation laws in Maness v. Gordon. ^[10] Bret Maness, pro se, sued several defendants for a series of sexual assaults he allegedly suffered as a child in the 1970s. ^[11] Hoping to toll the statute of limitations of sexual assault, Maness explained that he had repressed all memories of the abuse until shortly before 2007, when he filed suit. ^[12] The superior court granted summary judgment for the defendants after Maness failed to respond to a defendant's expert testimony on repressed memory syndrome with his own expert to support his story. ^[13] The Alaska Supreme Court affirmed, holding that the discovery rule could not be invoked to toll the statute of limitations absent expert evidence. ^[14]

Maness set forth Alaska's long-awaited legal approach to dealing with rediscovered memories but the opinion gave only a superficial discussion of the scientific controversy surrounding repressed memory syndrome and the court's reasoning behind the decision. The holding additionally raises due process concerns for indigent victims that may have regained access to previously repressed memories of abuse and desire civil remedies.

This Note discusses Maness v. Gordon in light of the nationwide controversy surrounding repressed memories and the implications the holding has for practitioners and future repressed memory plaintiffs. Part I of this Note explains the theory behind traumatic memory repression, the research involved, and its criticisms. Differing approaches taken by courts across the United States to tolling the statute of limitations for rediscovered memories are then presented and subsequently compared to the holding in Maness. Part II analyses the Alaska Supreme Court's decision. Possible alternatives to the Maness approach are considered in Part III.

I. REPRESSED MEMORY SYNDROME AND THE LAW

A. The Psychological Construct

Repressed memory syndrome ("RMS") was first officially recognized by the American Psychiatric Association in 1994 through the association's inclusion of the disorder in the fourth edition of The Diagnostic and Statistical Manual of Mental Disorders (DSM). ^[15] The DSM was developed in response to the need for uniform classification system of metal disorders ^[16] and is used as a guidebook for diagnoses by health care professionals in the United States and abroad. ^[17] Revisions of the DSM are published periodically with the help of more than 1,000 individuals and professional organizations in conducting comprehensive reviews of clinical and empirical literature. ^[18]

The fifth and most recent edition of the DSM (DSM-5) was published in 2013 and continues to include RMS as recognized diagnosis. ^[19] Alternatively termed "dissociative amnesia," ^[20] RMS is found in the DSM-5 within the broader field of dissociative disorders, disorders "characterized by a disruption of and/or discontinuity in the normal integration of consciousness [and] memory" in addition to disruptions in other areas of psychological function such as identity or behavior. ^[21] Dissociative disorders regularly follow trauma and dissociative symptoms such as amnesia, numbing, and detachment from one's self or surroundings are frequently experienced by those suffering from posttraumatic stress disorder and other stress-related mental illnesses. ^[22]

Specifically, RMS is characterized by "an inability to recall autobiographical information, usually of a traumatic or stressful nature, that is inconsistent with normal forgetting." ^[23] The forgotten information may concern a mere aspect of an event, include an entire time period, or cover one's own identity and life events. ^[24] Furthermore, those suffering from RMS may or may not be aware that a memory gap even exists. ^[25] In most cases, individuals are unaware of the memory loss unless it involves an aspect of their identity or normal life history. ^[26] Dissociative amnesia, of course, does not cover disturbances in memory attributable to "physiological effects of a substance . . . or a neurological or other medical condition." ^[27] Unlike permanent amnesias due to some sort of physical or chemical altercation to the brain that prevents memory storage or retrieval, one unique aspect of dissociative amnesia is its reversibility: although the memory is presently inaccessible, it was at one point successfully stored and may therefore be regained. ^[28]

The prevalence of RMS on a national scale would be hard to calculate accurately, though the DSM discusses a 12-month RMS prevalence study among adults in a small U.S. community. ^[29] The study reported a RMS prevalence of 1.8% in the community, specifically 1.0% among males and 2.6% for females. ^[30] Instances of RMS have been observed in individuals of all ages, however, from children to teenagers to adults. ^[31]

Theories about the psychological motivation for RMS suggest that repression occurs in some individuals as an involuntary ego-defense mechanism to keep traumatic, painful, or socially unacceptable memories from conscious awareness-in doing so, these individuals can continue to function normally in everyday life. ^[32] Repression of similarly unacceptable feelings or impulses may occur for this same reason and they, like repressed memories, remain present in one's brain but are pushed into unconscious thought. ^[33] Though the individual...