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The Law of Incest

A new trend in litigation: Women abused in childhood are suing their parents.



Nancy Simpson has no idea how long she has been a multiple personality.* After years of psychotherapy she has only a vague awareness of slipping into and out of about 16 different identities, which range from three-year-old Nancy to ten-year-old Tommie to several adults, among them Nance, Nancy, and Linda. She does know that for as long as she can remember life has been hell.

Until recently Nancy remembered hardly anything of her childhood, while her adolescence was a confused set of images that included running away several times from what felt like torture at home. Somehow she managed to finish high school and then college and to master fairly complicated computer skills, but her functional life was touch and go. She was hospitalized several times, sometimes for emotional illnesses and sometimes for physical ailments.

Her relationships were dismal, especially those with men. She turned to women for sexual solace, but they made her life no more stable or satisfying. Her appearance didn't help. Food was one of her few consolations and slowly she became grossly overweight.

Along the way she saw several therapists who couldn't get a grip on her problems. For one thing, Nancy found it almost impossible to trust them; she suspected almost everyone of intending to harm her. But in 1986 she finally was able to establish a working relationship with a therapist. Her multiple personality gradually was recognized, and her childhood memories began to emerge. She remembers (or at least believes she was remembering) being abused by her parents from the age of three. She remembers her father, a successful businessman, using her sexually in a variety of ways, putting not only his own penis but a number of other objects into her vagina, tying her to a table, holding her on the floor, forcing her into grotesque acts. She remembers him locking her into the freezer as a warning not to tell.

Nancy's mother's role remains vague. Nancy isn't sure what her mother knew, but she remembers her mother beating her with a broom after a sexual encounter with her father. She remembers other incidents of physical abuse by her mother, but she's not sure if they had anything to do with her father.

Despite the therapist, despite living in California far from her family for the past several years, Nancy has deteriorated emotionally. No longer able to support herself, she depends on disability insurance to get by. Therapy may have helped her to get to the root of her troubles, but it hasn't enabled her to live in the world.

But therapy did give Nancy the strength to follow the example of dozens of incest victims in California and around the country. She went to a lawyer to bring suit against her parents. They couldn't undo what they had done to her but they could financially compensate her. She sued them for $6 million.

In this most litigious of countries, which believes that any wrong done can be quantified as a sum of money, it should come as no surprise that a series of personal injury suits has lately been brought by "adult survivors of incest"--as they call themselves--against their fathers, and in some cases their mothers, too.

The idea of a daughter suing her incestuous father for damages can be traced back to the turn of this century, when a 15-year-old girl, Lulu Roller, tried to sue her father and was rebuffed by the Washington State Supreme Court. The court decreed that "the rule of prohibiting suits between parent and child is based on the interest that society has in preserving harmony in domestic relations."

In 1986 the same court once more ruled against such a suit. Tyson v. Tyson was brought by an older woman who attributed her severe psychological problems to incest that had been long repressed and discovered in the course of therapy. Now the court's concern was not family harmony but the statute of limitations. Most states limit civil suits to a two- or three-year period after the time of injury, or, in a case of childhood sexual abuse, to a like period after the victim reaches legal maturity--usually at age 18. Tyson asked the court to permit the victim to sue many years after that, on grounds that she had not known of the abuse sooner.

The Washington Supreme Court refused, on grounds that "there was no empirical, verifiable evidence . . . of the occurrences and resulting harm which the plaintiff alleges. Her claim rests on the subjective assertion that wrongful acts occurred and the injuries resulted. . . . These allegations . . . are based on plaintiff's recollections of a memory long buried in the unconscious which she asserts was triggered by psychological therapy."

But a dissenting opinion argued that the court should have provided "an opportunity for an adult who claims to have been sexually abused as a child to prove not only that she was abused and that the defendant was her abuser, but that the suffering was such that she did not and could not reasonably have discovered all the elements of her cause at any earlier time." This dissent criticized the majority for weighing memories unearthed in psychotherapy on the basis of one article from a professional journal that questioned the value of mental health professionals. The dissent argued that "expert witness . . . is merely an aid to the trier of facts and may be accepted or rejected by the jury."

The first contemporary cases such as Tyson occurred in California in the late 70s. But two years after Tyson was thrown out of court, Washington's legislature made that state the first to modify its statute of limitations to accommodate such suits. Today, laws enabling incest survivors to sue their parents many years after the fact also exist in California, Alaska, Colorado, Iowa, Maine, Montana, and--since January of this year--Illinois. A number of other states are considering following suit.

In Illinois, the law extending to 30 the age by which victims can sue for incest was passed as a result of a victim consulting state representative Helen Satterthwaite of Champaign-Urbana. The woman had first approached a lawyer, but he'd told her she was too old to sue. So Satterthwaite called on the Citizens' Council for Women, a research and advocacy adjunct to the General Assembly. The council wrote a bill that contained no age ceiling; but, says Satterthwaite, "the judiciary committee that handles civil law wouldn't consider leaving the age open-ended, so we settled for a ten-year extension." There was, she says, "a lot of lobbying for the bill by women's groups, and the bill passed easily in both houses."

The Illinois law follows the laws of other states in containing a clause that enables victims to get around the age limit, but the language that does this is far more ambiguous and limiting than most. It enables a victim past 30 to sue if she'd been under a "legal disability" earlier. But what is a legal disability? No one is yet sure. A Blue Island lawyer, Hope Keefe, has brought the first four suits in Illinois under the new law, and she's testing the legal-disability clause in two of the cases. These clients are well beyond 30. One of them, Nancy Simpson, is 37.

When Nancy Simpson's California attorney, Linda Scaparotti, realized that Simpson's suit against her parents would have to be filed in Illinois, which is where they live, she contacted a Chicago attorney who specialized in women's-rights cases. Having retired, this lawyer referred Scaparotti to Hope Keefe.

Keefe graduated from Kent College of Law in 1978, at the age of 48, and became partners with a former classmate who was gay. The legal matters they handled included civil rights and gay issues, such as the bequeathal of one's estate to one's lover. Keefe's experiences before law school gave her an especially humane insight into legal problems that often have a highly personal aspect. She had three children during her first marriage, acquired five more in her second, taught high school English for many years, and spent five years living with a lawsuit brought against her and her husband John by the Lake County Forest Preserve District, which sought to evict the Keefes from a farm in Libertyville (the former Adlai Stevenson farm) that they were renting from the district. It seems the Keefes had lent the farm to Adlai Stevenson III for a rally, and "the Republicans on the district board didn't much care for all those Democrats meeting on their property," Keefe says. "They thought we had big Democratic connections, which we did not, and tried to get rid of us. We were simply big admirers of Governor Stevenson and didn't mind lending our place to his son."

The experience of the suit, which involved two jury trials that the Keefes won, led to her entering law school. "It taught me a lot about the law and I was fascinated by the process."

Keefe became Nancy Simpson's attorney in 1988, and once she was on record as the state's only lawyer with experience in these incest cases, the next three came to her almost inevitably. Keefe says she finds them "totally incomprehensible. As a mother and a grandmother, I can't conceive of hurting a child this way, or any other way, for that matter. But of course I feel the same way about murder. How could anyone murder another person? But I try not to get caught up in the horror of the facts of the case. I couldn't handle it. For me, each case is a puzzle that I try to solve for my client. I can't deal with the emotional elements. It's a kind of madness, and I'm not a psychiatrist."

Incest has been chronicled for centuries. In the fifth century BC the Greek historian Herodotus described how a king of Egypt had "conceived a passion for his daughter and violated her." The daughter killed herself, and the mother cut off the hands of servants who, she said, should have intervened. The king went unpunished. Plutarch wrote of a Persian king who married his daughter. Quintilian reported that the Roman emperor Tiberius "taught children of the most tender years, whom he called his little fishes, to play between his legs while he was in his bath. Those which had not yet been weaned, but were strong and hearty, he set at fellatio." In the 15th century, Pope Alexander VI announced publicly that he was the father of his daughter's children.

If kings, emperors, and popes did it, we can assume that commoners did it, too. But for all the times it's happened, incest has always remained impermissible. Sigmund Freud, in Totem and Taboo, said that sexual impulses had to be regulated, even in earliest times, in ways that permitted families to live in peace. Hence the taboo. Only when sex is forbidden among family members other than the husband and wife (or wives) can harmony prevail. There is also evidence that humans realized centuries ago that incestuous relations produced defective offspring.

Throughout history, the incest taboo has had by far its greatest effect on marriage. In early Christendom, a person committed incest by marrying a 32nd cousin. Margaret Mead reported that in answer to a question about marrying within a family an Arapesh in New Guinea told her, "What, you would like to marry your sister! What is the matter with you, anyhow? Don't you want a brother-in-law? If you marry your sister you will have none. With whom will you hunt? With whom will you garden? Who will you go to visit?"

But many times in history the taboo was violated for the sake of other interests. Cleopatra married her brother to keep wealth and power in the family. Until the law intervened in 1892, Mormon sisters and brothers married each other to avoid marrying outside the faith. And the Old Testament tells the story of Lot's two young daughters, after the destruction of Sodom, lamenting that "Our father is old, and there is not a man in the earth to come into us after the manner of all the earth." They got him drunk and had sex with him, and "thus were both the daughters of Lot with child by their father."

Despite the taboo, fathers always seem to have been able to use their daughters for sex with some impunity. Almost every state (and most countries) has a law prohibiting incest, with prison sentences from a $500 fine and/or a year in jail in Virginia to up to 50 years in jail in California. On the other hand, children have been widely seen as the property of their fathers. It's an attitude that survives today, even in the courts. Blair and Rita Justice, in their 1979 book, The Broken Taboo, wrote that many a father they had either seen or heard about from other therapists justified his incestuous relations with his daughter as "sex education," or believed his daughter was obligated "to serve his needs." Cook County Public Guardian Patrick Murphy says that the courts today are no more likely to remove a child from an incestuous home than from any other abusive environment. The child will probably be left where she is if the parents make what are often worthless promises to undergo therapy.

Reports from social workers, psychologists, and victims themselves suggest that father-daughter incest is on the rise. We can't be sure whether this is true because such incest has so long been the world's best-kept secret. Every child or woman who does report her incestuous father tells of having been cajoled or threatened into secrecy. Mary Beth Preston,* one of Keefe's clients, says that she was beaten, locked up, and threatened with death if she reported her father's abuse. Another client, Marianne Small,* wasn't threatened with violence, but she took as a threat her step-grandfather's admonition, "Don't tell grandma, she wouldn't understand."

Although the child can sense that what is happening is wrong, and usually hates and fears it, she is usually sufficiently dependent on her father to protect him. The Justices quoted a young woman as saying "I can remember not wanting to tell anyone about the incest because I knew it meant I would have to leave home, that my dad would get so mad at me he would kick me out and my mother wouldn't believe me and she'd have a nervous breakdown."

But there are girls and women who do try to tell someone--their mothers, grandmothers, psychiatrists, the police, a social worker. They often just make matters worse. The Justices reported as a typical case a teenager who revealed her father's abuse to her grandmother. "She addressed all her concern at trying to find out why I made up the story," the woman told the Justices.

Though he meticulously analyzed incest in Totem and Taboo, Freud all but ignored father-daughter incest, dismissing it as imaginary and concentrating instead on mothers and sons and brothers and sisters. Freud's attitude set the standard for many years.

Neither the expert witness hired by Hope Keefe nor the one hired by the lawyer for Nancy Simpson's parents expressed any doubt in their depositions that Nancy had been sexually abused as a child. But both questioned whether the father was the abuser. Dr. Bernard Suran, a clinical psychologist at Northwestern Memorial Hospital and the expert witness for Nancy's parents, said after examining Nancy, "[The] degree of sadistic abuse . . . would be extremely unusual . . . in a home situation where a person is otherwise providing for his family and not being brought to the attention of other members of the community. . . . These types of abuse . . . are more likely to be those that occurred at the hands of a stranger."

Dr. Bennett Braun, a psychiatrist at Rush-Presbyterian-Saint Luke's Hospital, is Nancy Simpson's expert witness. Braun said in a deposition that his work with multiple-personality disorders indicates that they are often the consequence of incest, and he was convinced that Nancy had been gravely abused. But he, too, wondered if the abuser could have been a stranger. The evidence seemed to point to Nancy's father, he said, but he wasn't prepared to say so with certainty. He needed to examine her further.

The long history of blaming the victim in rape cases extends to incest. The Justices described a case in which a teenager tried to tell her stepmother that her father was abusing her. The victim said, "She took the position that it happened, but that it was my fault, that I had seduced my father, that my seductive airs were such that no red-blooded American male could have refused. She treated me like dirt."

Thirty-five-year-old Mary Beth Preston says she overheard her father telling his brother "Sometimes you just have to give them what they need. These girls run around and tease you and act so smart and cute. Sometimes you just have to take them out and give them what they deserve. You have to show them who's boss, what they get for all that laughing and being pretty."

On the other hand, there appear to be zealous therapists so influenced by the widespread attention incest has received in recent years that they see it where there is no real evidence for it. Psychotherapist Ira Emkin says several clients have come to him from other therapists diagnosed as victims of what Emkin calls "instructed incest." He says, "While there is certainly a considerable amount of incest out there, these therapists convinced these women that they were abused without a shred of direct evidence from the client. They have no memories of abuse, none of the flashbacks of abuse that one expects to see, but they seem to fit a pattern. The only trouble is that this pattern also fits a lot of other women who haven't been abused. You have to be very careful about making those kinds of deductions."

Psychotherapist Nina Corwin says that she is "definitely aware of this phenomenon. While I've found that histories of incest are more often overlooked by professionals not sensitive to the issue, I've also come across a therapist who seemed too eager to place a client in the hospital to retrieve memories of incest that she believed were buried, though the client lacked the kinds of symptoms you need to see to suspect incest--flashbacks of events, abuse imagery during sex, and some memories, however vague. People have enough problems without that." But Corwin adds, "I have no sense that this is a widespread problem."

Incest so drastically contradicts a girl's physical and emotional expectations of her parents that she may mentally retreat from reality. "I just pretended it wasn't happening," is a common refrain of such women. But their repressed memories play havoc with their emotional and intellectual growth.

Eventually, in therapy, the truth may unspool. Mary Beth Preston describes this sensation: "I began to have memories of suffocating, of somebody on top of me, of something penetrating my body. As time went on, I began to put a face on it, to remember it, the environment, and what it was like." Mary Beth was 32 when she had those first recollections, 12 years after Illinois' old statute of limitations had run out on her right to sue her father.

Going to court is an act charged with a desire for retribution. But it can also be an effort by incest survivors to force their parents to pay for the therapy, and sometimes their living expenses. Nancy Simpson, for example, recognizes that she may never be able to support herself again.

When Nancy (and each of Hope Keefe's other clients) filed suit, her parents immediately asked the court to dismiss the case because of the statute of limitations. However, the law provides a loophole in the rule of delayed discovery. One application of this rule came in a series of suits brought against the Johns-Manville Corporation by workers claiming, years after they had started to work there, that they'd been incurably damaged by on-the-job contact with asbestos. Judges in those cases ruled that because of the slowly developing nature of asbestosis, the workers were entitled to sue under the rule of delayed discovery.

The question asked in courts across the country is whether the delayed-discovery rule could be applied to adult survivors of incest. In Tyson, Washington courts said no. The Wisconsin Supreme Court ruled in 1987 in Hammer v. Hammer that the delayed-discovery rule did apply: "As a matter of law . . . a cause of action for incestuous abuse will not accrue until the victim discovers, or in the exercise of reasonable diligence should have discovered, the fact and cause of the injury."

In 1988, U.S. District Court judge Paul Plunkett ruled that the delayed-discovery rule applied to Nancy Simpson "because incest is a widespread problem, occurring primarily within the family, which often results in the victim blocking out the experience in order to maintain her sanity."

The judge explained that "the purpose [of delayed discovery] is to provide an opportunity for an adult who claims to have been sexually abused as a child to prove not only that she was abused and that the defendant was the abuser, but that her suffering was such that she did not and could not have reasonably discovered all the elements of her cause of action at an earlier time."

Defeated in their first attempt to invoke the statute of limitations, Mr. and Mrs. Simpson took another tack. They filed a motion that asked for a summary judgment against Nancy on grounds that she'd actually recalled the alleged abuse two years before she filed suit. They submitted two letters that she'd allegedly written containing oblique references to being abused. Keefe answered with an affidavit from Nancy saying she had no knowledge of those letters.

Of course, the 16 or so personalities that occasionally emerge in Nancy don't necessarily know what the others are doing. Is the Nancy who sued legally responsible for all those personalities? Keefe filed an affidavit from Nancy's therapist saying that the Nancy who sued, the dominant personality, could not have known about the abuse at the time the letters allegedly were written. And Judge Plunkett once more ruled for Nancy, saying that the letters were merely part of the evidence that needed to be viewed by the court.

Last January the Illinois legislature revised the statute of limitations to allow suits by women up to the age of 30, even beyond that age if a woman had turned 18 "under legal disability." And the new limits were made retroactive to cover all pending cases. But Nancy was 34 when she filed suit. Her parents immediately went back to court with a motion to dismiss. Keefe replied by citing the legal-disability clause.

What, however, constitutes a legal disability? An earlier statute said that the age limit did not hold if a person had been "insane or suffering from other mental illness." That statute was then revised to say "under a legal disability," and this wording was retained in the 1991 law.

Clearly, says Keefe, "under legal disability' still means insane. But 'insane' is not a medical term. What does it actually mean? Does it mean suffering from some kind of mental impairment which prevented you from knowing about the abuse? That hasn't been ruled on. And that's the issue I'm dealing with in both the Simpson and the Preston cases."

In early June, Judge Plunkett granted Nancy's parents' motion for summary judgment. Without precisely defining "legal disability," Plunkett said that the upper-age limit of 30 for bringing a suit applied in Nancy's case because no evidence had been presented that Nancy had been disabled when she became a legal adult. Keefe says that was a time in Nancy's life too distant to document.

Now Keefe must decide whether to appeal to a higher court or ask Plunkett to reconsider his ruling.

An issue that's dogged these incest cases is insurance. Early on, plaintiffs' lawyers devised a strategy to collect damages from parents via their home-owner's policies. But does home-owner's insurance cover one family member's injury of another family member? The answer has usually been no. To try to get around this, lawyers have argued that the critical point in time is not when the injurious act was committed but when the damage resulted--in the case of an incest survivor, after she'd left home and might be construed as a visitor to the home. "Courts around the country have been voting against our position," Keefe acknowledges.

Another challenge to lawyers like Keefe is the matter of intent. Home-owners' insurance covers negligent behavior, not intentional conduct. A man who shoots someone on his property is not covered by his insurance. So the lawyers in incest cases have contended that the issue of negligence goes to the heart of the parent's responsibility. By abusing a child, a parent is neglecting his or her responsibility to protect that child from harm. Christine Cleary, writing in a California law journal in 1979, observed, "One of the reasons that this kind of sexual abuse is so psychologically harmful to a child is because [her emphasis] it is not done with intent to injure. If the intent to injure was present, it would be easier for a child to identify and resist it. Most often, however, incestuous abuse is combined and confused with parental love."

The courts have not always agreed. Some judges see incest as clearly intentional because it is a crime. Others, though, have accepted the arguments of the lawyers. Cleary cited a Florida State Supreme Court decision: "While one may have a first, visceral reaction which is strongly adverse to any conclusion that a person who engages in sexual fondling of a child may be covered by liability insurance, if it allowed such a reaction to govern its decision, the court would fail in its judicial responsibility." The court ruled that "doubtful insurance coverage questions must be resolved against the insurer."

Some insurance companies have simply paid benefits without testing their liability in court. When their daughter sued them, the Simpsons immediately turned to their insurer. For about 18 months, the company paid all the Simpsons' legal bills without question. But at that point the company asked a Du Page County circuit court judge to determine its liability. The Simpsons hired a lawyer to fight their insurer. That lawyer, according to Keefe, decided that the Simpsons couldn't win, and warned them that if they lost the insurer might demand to be reimbursed for all the legal fees it had paid to date. He arranged a settlement in which the insurer did not try to get any money back, and the Simpsons gave up any claim on future coverage.

The agreement implied that Nancy had no claim on her parents' insurance. Keefe immediately went into court to tell the judge, "You can accept this agreement and dismiss the company's case against Mr. and Mrs. Simpson, but Nancy is a third-party beneficiary of that insurance policy and may still have a claim against the insurer."

Keefe explains, "Originally, Nancy, as a child in the family, was an insured person. When she moved out, she became via a vis the insurance company just another stranger who might be injured in that home, namely an intended third-party beneficiary."

The judge agreed with Keefe. He told the insurance company that it would have to prove it wasn't liable to Nancy even if her parents waived any future claims. The company backed off. It signed the agreement with the Simpsons and deferred the issue of liability for Nancy. If Nancy eventually wins her case, Keefe will face another court battle with the insurer. "We'll cross that bridge when we come to it," she says hopefully.

In January of this year, the California Supreme Court let that state's insurance companies off the hook. Child abuse is always intentional, the court said, and intentional acts are automatically excluded from coverage. Linda Scaparotti, Keefe's California cocounsel on the Simpson case, who has already handled ten such suits, says attorneys in California probably won't appeal to the U.S. Supreme Court out of fear that the Court would impose the same ruling on the entire nation.

Almost all of the hundreds of incest suits already brought by daughters against their fathers or parents have been settled before they went to trial. Awards have ranged from a few thousand dollars to several million, though the million-dollar awards have been rare. Most settlements included statements that there was no finding of guilt--the settlement was merely a way of avoiding a costly and troubling trial.

Some states require the plaintiff to file as Mary Doe to protect the family's reputation; all states that have extended the age limit allow victims to file anonymously. Mary Beth Preston invited newspapers to attend the filing of her complaint in downstate Edwardsville last September. She said she wanted publicity because she wanted to encourage other victims to follow her example.

According to the Saint Louis Post-Dispatch, her father told reporters, "The allegations, of course, are just untrue. I just hate that my family has to be spread across the country like in the newspaper."

Keefe says that the Simpsons made a couple of early offers to settle, but the amounts were too small to consider, around $10,000, not even enough to cover Nancy's legal expenses. The Simpsons have not suggested a settlement lately, Keefe says, because "they've been certain they will win on the statute of limitations."

The other parents of Keefe's clients have not made offers to settle.

For the first year and a half, Nancy Simpson paid the fees of both Scaparotti and Keefe plus expenses. Dr. Suran's deposition fee alone was $4,200. But about a year ago, Nancy ran out of money. "She is too sick to work regularly," Keefe says. Nancy is living on disability insurance.

"I had to make a choice," Keefe says. "In order to prepare the case properly, I would have deposed all the other family members and other relatives. [She deposed Suran, Nancy, Nancy's present therapist, and the parents.] But I couldn't afford to do any more. I didn't want to abandon the case for a lot of reasons. If I don't take it forward, I have no chance of recouping my expenses. So I have to put more in to go forward. But there are other reasons. I've put a lot of effort, thought, and concern into it. And I have the opportunity to make some law and help a lot of people. Now I'm not sure what will happen."

But, Keefe adds, "If the case should eventually go to trial, it will simply be a battle of the experts. Nancy will testify and their expert will say she's faking. The experts will battle over whether Nancy's memories are accurate and truthful." Keefe observes that the experts may also battle over whether Nancy is so emotionally disturbed that her testimony can't be relied on.

Keefe says that most incest survivors are sufficiently disturbed that their earning power is limited. "I've been hoping that some organization would undertake to raise money to help these women. Also to continue the litigation that will force the insurance companies to accept liability for child abuse in their home-owner's coverage."

The effects of childhood incest vary greatly from individual to individual. Although her college education was interrupted several times by emotional problems, and although she was unable to sustain her marriage, Mary Beth Preston is now a relatively successful accountant in Washington, DC, and her suit against her father seems more political than personal. She is suing her father for $4 million because "it's important for me for other abused women to know they are not alone. This issue has been kept in silence. It thrives in silence. There needs to be justice."

This is what Mary Beth told reporters gathered on the steps of the Madison County courthouse in Edwardsville. "Without a doubt," she said, "it's difficult to talk about, but the issue has to be discussed if this is ever going to be stopped. That's why we're handling it this way."

Mary Beth has even threatened to bring criminal action against her father. Attorneys have avoided attempting criminal prosecutions because the protections enjoyed by the accused are so much more extensive in criminal than in civil cases.

Mary Beth is not alone in her zeal to make incest a public issue. Lawyers and their clients have made the rounds of television and radio talk shows and state legislatures. The laws extending statutes of limitations are products of this lobbying. One has to wonder, though, if the parents of incest victims continue to be brought into court, which other abusive parents will follow? Parents who beat? Alcoholic parents? Neglectful parents? Most child abuse, whatever its form, is, as Christine Cleary described incest, "combined and confused with parental love."

An overcrowded court system could collapse under the weight of children suing parents. "It is a real problem," says attorney Linda Scaparotti, practicing in California, where there are already hundreds of incest cases. "But we have to come up with some remedy for these women. So far, the courts seem to offer the only remedy. We're going to have to change the courts."

Hope Keefe has another view: "This argument that this sort of litigation will open a can of worms has been used every time a new right to sue has come into the system. 'If you allow this medical malpractice, you're going to open a can of worms.' 'If you allow people to sue because they were wrongfully terminated, you're going to open a can of worms.' Maybe it's true. The system has to do several things. It has to permit wrongs to be righted and recompense people who are injured. It also has to control for the abuse of the system, and we do have controls. There are sanctions for baseless pleadings and other legal controls. There's also a self-correcting control. If the defendant has no funds, they aren't going to sue. But I, as an advocate for people with problems, have responsibility to find out whether there is any relief to be had in the system. The bottom line is that there has not been, and I don't think there will be, a great flood of these incest cases because it takes a great deal of courage for someone to face the horror of the incest itself and to say it publicly and be questioned about it. It takes a lot of strength and most people won't do it. But I feel sure that if there were a flood of such suits the system would correct itself."

Keefe insists on the propriety of suing one's parents for sexual abuse. "The economic damage these women suffer is certainly important. But even if they are not damaged economically, they are severely damaged emotionally. They have extreme difficulty in all personal relationships. They don't know how to love or be loved. They are really deprived, probably for the rest of their lives, of normal loving relationships. Now you can say that money can't make up for that. But you can also say that for the loss of a leg or any other physical injury that we pay large sums for. We say, true, money can't bring back your sight or hearing or some other terrible loss, but the party who willfully did this should be punished for it anyway. And the only way we have is a monetary one. That's the system. These cases don't represent a new concept. They are simply bringing this kind of case into the mainstream."

Erna Fishhaut, coordinator of the University of Minnesota's Program Center for Early Education, serves as an expert witness in child-abuse cases when there's a question of whether the children should be kept in the home. She says, "When does an adult say, OK, the damage was done, but now my life is my responsibility? Placing public blame doesn't help me get on with my life." Not so facetiously, Fishhaut suggests that parents may have to take out malpractice insurance.

Although the California Supreme Court found that incest is always intentional, it didn't explore intent. Does intent imply malice aforethought? Does it imply that the abuser understands the likely results of his behavior? Or is the incestuous father, as Cleary suggested, acting out of deeply neurotic needs, mixing sick love and desire, without a grasp of the consequences? In The Broken Taboo, the Justices say, "It is time to recognize that incest is not some unthinkable sin or sexual aberration, but a problem growing out of parents not knowing how to meet their needs for closeness, nurturing, and stimulation or how to deal with stress, which interferes with fulfillment of needs."

It may seem unreasonable to allow parents who have disabled their children, whether or not they understood the consequences of what they were doing, to escape responsibility for even the medical and therapy bills incurred as a result of the disability. Yet psychotherapist Nina Corwin, for one, advises incest victims to think twice before litigating.

Corwin is a member of VOICES in Action (Victims of Incest Can Emerge Survivors), a national organization of about 1,000 members with offices in Chicago (312-327-1500) that was founded in 1980 and acts as an information and referral service. (VOICES is holding its annual conference through Sunday in Chicago. For information call 708-257-8755.)

Corwin is not categorically opposed to litigation. But she says, "You have to examine your goals and motives and you have to be prepared for a real battle that may distract all your resources for putting your life together. For some people, it helps them stand up for themselves, to take back some of the power they were robbed of. But for others, it focuses so much of their lives on the case that they don't get around to putting their lives in order."

*Plaintiffs' names have been changed.

Art accompanying story in printed newspaper (not available in this archive): photo/Paul L. Meredith.

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