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Recovered memory claim denied in sex abuse case

THE BALTIMORE SUN

In Maryland's first test of recovered memory in sex abuse cases, a Baltimore judge yesterday dismissed a lawsuit brought by two former students against a Catholic priest who is alleged to have molested them almost 25 years ago.

Although he called it an "egregious case," Circuit Judge Hilary D. Caplan did not rule on its merits, but only on the narrow issue of whether the women's long-suppressed memories qualified for an exception to Maryland's statute of limitations for civil suits.

"No matter how difficult the case is from the emotional or factual point of view, that is not for this court to decide," Judge Caplan said.

Judge Caplan's decision runs counter to a national trend in which courts have allowed similar sexual abuse lawsuits based on recovered memory to proceed. Some legislatures have specifically acted to protect such suits, although Maryland's has not.

But the weeklong hearing was only the first step in what will be a long judicial process. Phillip G. Dantes, an attorney for the

women, said he was disappointed at the judge's decision. He said he will ask the Court of Appeals, the state's highest tribunal, to take up the issue of an exception to the statute of limitations directly.

The two women, now in their 40s, testified that they were students at Archbishop Keough High School in Southwest Baltimore almost 25 years ago when the Rev. A. Joseph Maskell engaged them in a variety of bizarre sexual incidents. He was the chaplain and counselor at the all-girl institution.

The plaintiffs both said they had repressed the traumatic memories of the incidents until a few years ago. They argued -- unsuccessfully -- that this qualified them for an exception to a three-year statute of limitations on civil suits for those judged to be mentally incompetent at the time of the alleged incidents.

Father Maskell's lawyer, J. Michael Lehane, said his client "is vindicated clearly. The charges should never have been brought in the first place. Father Maskell maintains his innocence, and where does he go to get his reputation back?"

Other defendants are the Archdiocese of Baltimore, the School Sisters of Notre Dame, who run Archbishop Keough, and Dr. Christian Richter, a retired gynecologist accused of molesting one of the women in collaboration with the priest.

While Mr. Lehane claimed vindication, the hearing in Baltimore Circuit Court did not address the facts of the case. Instead it was confined to the legal and scientific issues involving recovered memories.

One of the women, known as Jane Roe, said she had always remembered some abuse by Father Maskell, but not until 1993 did she recall being raped by the priest and by Dr. Richter, to whom Father Maskell had referred her.

The second woman, identified as Jane Doe, said she remembered nothing of the abuse by Father Maskell until 1992, after she had completed therapy for sexual abuse by an uncle when she was a child.

As part of a pre-hearing agreement, the women's testimony about the alleged abuse was accepted at face value strictly for the purpose of explaining how they recovered their memories -- not for its veracity.

The agreement permitted no corroborative testimony although the women's lawyers said they had other witnesses willing to testify about alleged abuse by Father Maskell. The other women could not join the suit because they had continuous memory of the alleged abuse.

"The court in no way is judging [the plaintiffs'] credibility, but their recollection. That did not meet the test of scientific reliability," Judge Caplan said.

Kevin D. Murphy, a lawyer for the archdiocese, called the judge's opinion "thoughtful." He said it reflects both the law in Maryland and the lack of scientific testimony to support the women's claims of memories repressed for more than 20 years.

"In essence, Judge Caplan found that the psychoanalytic theory of repression of memory is no more than a theory. It cannot be considered a valid basis to permit a person to file a lawsuit 20 or more years after alleged events," Mr. Murphy said.

Judge Caplan said he was persuaded to reject the plaintiffs' memory claims by defense experts -- including Dr. Paul C. McHugh, chief psychiatrist at Johns Hopkins Hospital, and Jason Brandt, a leading Hopkins psychologist.

"No empirical studies verify the existence of repressed memory," the judge said. "There is no way to test the validity of these memories."

A psychiatrist and a psychologist who testified for the plaintiffs said both women have suffered from the amnesiac aspect of post-traumatic stress disorder since the early 1970s.

The disorder, well documented among Vietnam War veterans, is a reaction to traumatic events whose symptoms include anxiety, nightmares, loss of sleep, flashbacks and an inability to recall important aspects of the trauma, according to the American Psychiatric Association.

Judge Caplan said the plaintiffs did not show that post-traumatic stress disorder "automatically leads one to amnesia. That is a leap of faith this court cannot make."

Although this is the first attempt in Maryland to make a sexual FTC abuse case an exception to the statute of limitations, 21 states have allowed exceptions in cases similar to the Maskell suit, according to Beverly A. Wallace, another lawyer for the plaintiffs.

At least 15 states have enacted legislation allowing such exceptions in sexual abuse cases, she said.

Since one plaintiff first complained about Father Maskell to the archdiocese, others have come forward with similar stories, although attorneys decided that only Ms. Doe and Ms. Roe might qualify for exceptions to the statute of limitations.

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