A dangerous direction: legal intervention in sexual abuse survivor therapy

In this Article, Professors Bowman and Mertz question recent popular and academic commentary that disputes the validity of all delayed-recall memories of childhood sexual abuse. They examine one court's decision to allow a father, accused by his daughter of childhood sexual abuse, to recover malpractice damages from his daughter's therapist in connection with therapy during which the daughter recovered memories of the abuse. The authors argue that such third-party liability is unsound in terms of established principles of tort doctrine and in terms of public policy. After a review of the scientific evidence, the authors further conclude that, although some memories may be inaccurate, delayed-recall memory can also accurately reflect that past abuse occurred. Permitting third-party liability against therapists when accurate memories of abuse surface in therapy gives abusers a weapon to use against their victims. Because such suits exclude the party in privity (the client), they effectively erase the victim's voice. Professors Bowman and Mertz argue that such a novel extension of third-party liability is at best a misuse of the courts' resources and ultimately harms abuse survivors, therapists, and the community far more than it helps any wrongfully accused parents.