Child Sexual Abuse, the Delayed Discovery Rule, and the Problem of Finding Justice for Adult-Survivors of Child Abuse

This Article considers the statutes and judicial decisions that extend the use of the delayed discovery rule to adult survivors of child sexual abuse. Use of the rule in such cases has been criticized as opening the door to suits founded on the scientifically-controversial notion of repression, but increasingly the rule has been used in cases where the victim always remembered the abuse but did not connect it with her symptoms. Given this extension of the rule's use, this article explores the rationale for restricting it only to cases involving victims of sexual abuse. The article argues that while child sexual abuse is often regarded as "unique" and "different," and thereby warranting "exceptional" legal treatment, using the rule only in sexual abuse cases reinforces a cultural narrative linking child sexual abuse to a wide range of psychopathological symptoms while underestimating, if not totally ignoring, the malign consequences other forms of abuse and neglect have on children's development. This article examines the strengths and weakness of the justifications that have been implicitly and explicitly advanced for the "exceptionalism" surrounding child sexual abuse in use of the discovery rule and traces it to the social movement on behalf of adult survivors of child sexual abuse. Deeper roots lie in the broad cultural 1. B.A. University of Pennsylvania; Ph.D., Comparative Literature and Literary Theory, University of Pennsylvania, 1988; J.D., Harvard Law School, 2003. Assistant Professor, Yale University 1987-1995; Bunting Institute-Children's Hospital Fellow in Domestic Violence, 1995-1996; Visiting Professor, Gender Studies, Humboldt University, Berlin, 1997-1999. UCLA WOMEN'S LAW JOURNAL [Vol. 12:145 identification of childhood with sexual innocence and in the close connection that has historically been made between inappropriate sexual activity in childhood and physical and mental deviations in adulthood. Based on evidence indicating that other forms of child maltreatment may have detrimental consequences to children comparable to those arising from child sexual abuse, this Article proposes that the discovery rule would also be suitable for cases involving child physical abuse. 2