Turning Back the Clock: Reexamining Powel v. Chaminade and the "Capable of Ascertainment" Standard in Priest Sexual Abuse LitigationExpressO (2009)
AbstractMissouri courts, like most others around the nation, continue to confront the dilemma of how to administer justice when faced with statute of limitations, on one hand, and a victim of childhood sexual abuse by a clergy member, on the other. The Missouri Supreme Court decided Powel v. Chaminade in 2006 and discussed how to apply the statute of limitations, governed in Missouri by the "capable of ascertainment" test, to cases of repressed memory. The article argues that post-Powel Missouri plaintiffs and their attorneys have erroneously viewed Powel’s holding as an invitation to file non-meritorious lawsuits; suits that remain barred by the statute of limitations. Missouri litigants have failed to recognize that Powel's holding applies to a very narrow class of plaintiffs: those with repressed memories. For plaintiffs without repressed memories, meaning those who claim merely shame and embarrassment in revealing past abuse, the article asserts that Missouri's capable of ascertainment test functions as an "occurrence" test: the statute of limitations began to run when the abuse occurred. Based on these observations, the article offers practical advice to plaintiffs’ attorneys as well as the judiciary. The article alerts plaintiffs’ attorneys to the strict boundaries of Powel's holding and advises them to choose cases wisely. To the judiciary, the article advises publishing all appeals that address sexual abuse by clergy members, including those that are routinely affirmed on summary judgment grounds. Though the analysis focuses on Missouri law, the continued prevalence of this type of case in numerous states around the country renders it informative to all.
Publication DateNovember 11, 2009
Citation InformationLauren A Standlee. "Turning Back the Clock: Reexamining Powel v. Chaminade and the "Capable of Ascertainment" Standard in Priest Sexual Abuse Litigation" ExpressO (2009)
Available at: http://works.bepress.com/lauren_standlee/2/