Balancing the Statute of Limitations and the Discovery Rule: Some Victims of Incestuous Abuse Are Denied Access to Washington Courts-tyson v. Tyson

• Jurisdiction: Washington,United States
• Citation: Vol. 10 No. 03
• Publication year: 1987

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987

Balancing the Statute of Limitations and the Discovery Rule: Some Victims of Incestuous Abuse are Denied Access to Washington Courts-Tyson v. Tyson

Naomi Berkowitz

I. Introduction

The Washington Supreme Court, in Tyson v. Tyson,(fn1) recently rendered a decision that will have a profound effect on many victims of repeated incestuous abuse. In Tyson, the plaintiff alleged that the defendant, her father, committed acts of sexual molestation constituting assault, battery, outrage, and negligent infliction of emotional distress when she was between the ages of three and eleven years old.

The plaintiff reached the statutory age of majority on April 20, 1975. She filed the complaint against her father in August 1983, eight years after the commencement of the statute of limitations period and more than five years after its expiration. The plaintiff asserted that her total mental blockage of the fact that she was sexually abused; she had no memory of the events until she entered therapy one year before filing her complaint.

The court considered the issue of whether the discovery rule, which tolls the statute of limitations until the plaintiff discovers or reasonably should have discovered a cause of action, should apply to intentional torts. The intentional tort in this case was past sexual abuse, which the victim had blocked from conscious memory during the duration of the statute of limitations.(fn2) In a five to four opinion, the court answered in the negative.

The court's decision in Tyson is significant for two reasons. The issue of applying the discovery rule to incest abuse cases was one of first impression in Washington,(fn3) and the Washington Supreme Court was the first state supreme court to even consider the issue.(fn4) The Washington court was given the opportunity to provide court access to many incest victims who are unable to bring suit against their offenders-their parents, step-parents, or other relatives.(fn5)

Incest is a crime in Washington as it is in every state.(fn6) Few incest cases are reported,(fn7) and still fewer cases are prosecuted.(fn8) Since many incest victims repress or bury deep within their subconscious mind the memory of the incestuous abuse,(fn9) they are unaware of the harm done to them until they are adults. At that time, the incest victim can pursue a civil action for damages against the offending parent.(fn10) However, although tort remedies exist, the statute of limitations remains an obstacle that prevents many victims from gaining access to the courts.(fn11) The Washington courts have applied the discovery rule in a variety of cases in order to counteract the injustice of the statute of limitations.(fn12) The discovery rule allows the statute of limitations to run when the plaintiff discovers or should have reasonably discovered the injury.

The court's decision in Tyson not only denies access to the courts for many victims of incest abuse, it also misinterprets the well-developed reasoning and purpose of the discovery rule in Washington law. This note addresses the court's reasoning in Tyson in light of the incest victim and the nature of her injury, with a focus on the justification for the statute of limitations and the development of the discovery rule exception in Washington law. This note then argues for the logical and just extension of the discovery rule to cases involving the victims of repeated incestuous abuse who discover the abuse after the statute of limitations has run.

II. The Court's Holding in Tyson

The majority in Tyson held that the discovery rule will not be applied to incest abuse cases, in the absence of objective, verifiable evidence making it substantially certain that facts can be fairly determined despite the passage of time from the occurrence of the injury.(fn13) The court's refusal to extend the discovery rule to victims of incestuous abuse rests on two major issues: the nature of the victim's injury and the evidentiary problem of proof created by potentially false or stale claims.

Although the court recognizes that "child sexual abuse has devastating impacts on the victim,"(fn14) the victim's claim "rests on a subjective assertion that wrongful acts occurred and that injuries resulted."(fn15) The court asserts that in prior cases where the discovery rule was applied, there was objective, verifiable evidence of the original wrongful act and the resulting physical injury,(fn16) while in the case of an incest victim there is merely an "alleged recollection of a memory long buried in the unconscious which she asserts was triggered by psychological therapy."(fn17) The court also asserts that there is no objective manifestation of the allegations and that the fact that the wrongful acts were discovered through therapy does not validate their occurrence.

The majority is not only concerned with the problem of speculative claims based on emotional injury, but also with the unreliability of psychiatry and psychology: "Psychology and psychiatry are imprecise disciplines. Unlike the biological sciences, their methods of investigation are primarily subjective and most of their findings are not based on physically observable evidence."(fn18) The court points out that psychiatrists and psychologists cannot necessarily aid in truth-finding and lessening the subjectivity of the plaintiff's claim, for the psychoanalytic process itself can lead to the distortion of truth of events because the analyst's own reactions and interpretations may influence the subject's memory.(fn19)

The court asserts that because the nature of the victim's emotional injury is unverifiable and speculative, there is a serious danger of spurious claims being made against potential defendants. In addition, the court notes that allowing potentially spurious and stale claims creates evidentiary problems, which the statute of limitations seeks to prevent.(fn20)

The Tyson opinion presents the traditional justification for the statute of limitations, the problem of stale claims: "Stale claims present major evidentiary problems which can seriously undermine the ability to determine facts."(fn21) Among the problems encountered are the disappearance of witnesses, the lack of physical evidence, and the passage of time, which makes witness testimony less reliable and trustworthy. Quoting a landmark case in the development of the discovery rule, the court notes that "with the passing of time, minor grievances may fade away, but they may grow to outlandish proportions."(fn22) The statute of limitations prevents the filing of stale claims and thus enhances the fact finders's ability to resolve issues fairly and accurately.

III. The Trauma of Incest

A. The Child Victim

In order to discuss the court's decision in Tyson, an understanding of the incest victim and the nature of her injuries is necessary. Unlike other victims of sexual offenses, the incest victim is surrounded by a "conspiracy of silence."(fn23) The silence has been fostered by society, which is not only unwilling to believe that the family could create an unsafe environment for children,(fn24) but is also unwilling to believe the incest victim.(fn25) Incest victims are often ignored or accused of being at fault when they have attempted to report incestuous abuse.(fn26) The silence is also maintained by the victim who is unable to overcome the complex psychological and emotional barriers to reporting incestuous abuse both at the time it occurs and later in life.(fn27)

While the incest victim receives little or no assistance from outside the family, she receives even less support from her immediate family members when she attempts to disclose the fact of incest.(fn28) In most cases, the mother is unable to protect her daughter because of the mother's own weak position in the family, or unwillingness to protect her from anger or blame.(fn29)

The incest victim is most often a young child; the average age is eight years. However, the age of incest victims ranges from birth to sixteen.(fn30) At such an early age the child is not only unable to understand the significance or wrongfulness of her father's conduct, she also has no power to effectively protest against it.(fn31) As a child she is vulnerable to her father's power and control as the authority figure in the family.(fn32) The incestuous father persistently encourages sexual relations, assuring his daughter that their relationship is normal, while at the same time, insuring her silence about the relationship through direct threats of harm to herself and the family or through the daughter's own perceived fear of harm.(fn33) Her silence, in effect, is coerced.

Incest victims believe that the disclosure of the incestuous relationship will break up the family, thus they feel that they are responsible for holding the family together.(fn34) In addition, the child fears that revealing the relationship to others will encourage not only her father's anger, rejection, or physical harm to herself, but perhaps even his imprisonment(fn35) or desertion of the family.(fn36) At the same time, she fears her mother's anger(fn37) and her own punishment by law enforcement officials.(fn38) Thus, from the daughter's point of view, her silence will not only maintain the economic security of her family, but will also insure her own safety from an even worse...