Repressed Memory Evidence in Civil Sexual Abuse Cases


This article discusses the admissibility of repressed memory evidence in sexual abuse cases. It postures that current treatment of such evidence exemplifies the continued lack of understanding society has of how harshly sexual abuse impacts victims. Analysis focuses on whether discovery rules should toll statutes of limitations, whether or not “discovery” has occurred, whether or not courts should admit repressed memory evidence, and, if so, the applicable standard of proof needed to prove the abuse. These issues require careful scrutiny of a variety of competing concerns. Proponents of the use of repressed memory evidence focus on the need for victims to have their day in court, and the difficulty victims have proving sexual abuse. Opponents, on the other hand, focus on defendants’ right of repose and the unreliability of repressed memory evidence. After comparing these various concerns, the article concludes that state legislatures should create statutory schemes that better balance competing concerns and that better predict the treatment of repressed memory evidence in court.

In addition to these concerns, much of the repressed memory debate centers on whether the victim recovered the memory spontaneously or via a therapeutic trigger method. With this in mind, the article suggests that statutory schemes could better balance the competing concerns by treating spontaneously recovered memories with more leniency than therapeutically recovered memories.

To delineate this argument, the article compares the current New York statutory scheme to the current California statutory scheme. It contends that California’s scheme provides a solid starting point and model for other states to follow and expand upon, while challenging New York’s scheme as far too imbalanced against victims.



Date of this Version

March 2006