This action, alleging malpractice, infliction of emotional distress
and defamation, arises out of the incompetent attempts in 1985 of
defendant Mary Smith, a marriage and family therapist in training, to
provide "family therapy" to Jane Doe and her family, Elizabeth
Doe, her mother, and John Doe, her father. As a result of Smith's
negligence, Jane, then five years old, lost her father, and John his
only child. Jane and her mother disappeared over six years ago and her
present whereabouts are unknown.
Despite Smith's admitted lack of training and experience in
diagnosing, investigating, validating or treating child sexual abuse,
she prematurely and without adequate professional basis concluded that
Jane had been sexually abused by John Doe and improperly
"treated" Jane for that alleged abuse. She knew that she was
not qualified to handle the case, yet failed to turn the case over to
someone else with the requisite qualifications and experience to handle
it. She knew that the "concerns" that Jane may have been
sexually abused or molested in some vague and undefined way had come
from the mother first, not the child, in the context of a difficult
divorce situation between the parents, yet she immediately and most
prematurely, made a report to DCYS before either she or anyone else had
even interviewed the child.
Moreover, Smith knew that because of a difficult divorce in her own
personal history, and the fact that she had lost two young children
shortly after birth, that she was likely to become overly personally
involved and overly protective of the child and overly identified with the mother in the case; yet, not only did she not get out of the
case, she resisted efforts to have her so-called "therapy"
terminated. She failed to seek out, or blithely ignored, other evidence
suggesting that there had been no abuse, including the fact that Jane's
pediatrician had examined her shortly after Smith's premature report to
DCYS and had concluded that there was no physical evidence suggestive of
sexual abuse nor, in his opinion, did Jane exhibit any sensitivity about
his examination of her private parts that, in his experience, a sexually
abused child might exhibit.
Having improperly stayed in the case and drawn an erroneous premature
conclusion, Smith began to subject Jane to repeated leading and
suggestive interrogations designed to elicit from Jane statements
supporting the mother's allegations of abuse. Although she had had
several sessions with Jane alone before the allegations surfaced, and
knew that the questioning should be done with Jane alone thereafter, she
acquiesced in the mother's presence during the sessions after the
allegations of abuse were made. The tape recordings that Smith was
making of her sessions because she was still in training at least those
tape recordings that still exist show clearly that it was the mother and
Smith who suggested what Jane should say, and who subtly led and pretty
much taught Jane what to say.
As a result of Smith's malpractice and defamatory conduct, Jane was
taught to hate her father. Smith influenced the mother and Jane to
believe that no contact between Jane and John was beneficial to Jane.
a consequence, Jane was spirited from the jurisdiction by her mother in
February, 1986, just before a custody hearing was to take place. The
whereabouts of Jane and her mother have been unknown to John Doe, and
ostensibly to defendant as well, since February, 1986. As a result, Jane
has lost the love and nurturing of her father, and John has lost the
joys of watching and participating in his five-year-old daughter growing up.
horrendous rift in the father/daughter relationship caused by Mary Smith
can never be undone.
The Complaint alleges eight separate causes of action. Counts 1, 3, 6
and 8 allege breach of contract, malpractice, infliction of emotional
distress and slander, respectively, as to plaintiff Jane Doe. Counts 2,
4, 5 and 7 allege breach of contract, malpractice, infliction of
emotional distress and slander as to plaintiff John Doe.
The contract claims assert that Mary Smith failed in her duty to
provide family therapy under her agreement to provide family therapy to
Jane Doe and John Doe.
The malpractice claims assert that Mary Smith deviated from accepted
standards of care in a variety of ways, causing egregious harm to Jane
and John. Plaintiffs contend that defendant Smith committed malpractice
in a myriad of ways, the principal ones as follows:
(a) she held herself out as experienced and qualified in dealing with
child sexual abuse and related therapy, when she was not, and continued
to provide "therapy" in a context admittedly beyond her
(b) she confused her roles and crossed boundaries between the roles
of therapist, investigator and family friend in violation of
professional standards of care;
(c) her interrogation and "play therapy sessions with Jane
improperly included the mother's participation and involved leading and
suggestive questioning and interrogation by the mother and the
(d) the defendant taught five year old Jane about deviant sexual
conduct, and taught Jane to believe that she had been abused by her
father, and taught Jane to hate her father and say that she did not want
to see him;
(e) Smith advocated a total lack of visitation and contact between
Jane and her father from as early as April, 1985 and continuing
(f) defendant Smith facilitated the mother fleeing the jurisdiction
with the child to avoid a custody hearing,
1. By teaching her that Jane had been abused and that a total loss
of contact with her father was in Jane's interest; and
2. By agreeing to retain and store the personal possessions of the
mother and child.
Counts 5 and 6 of the Complaint, alleging infliction of emotional
distress against John and Jane, assert that defendant Smith caused
emotional distress by committing malpractice and by counseling and
advocating a total lack of visitation and contact between Jane and John,
when she knew or should have known that such acts involved an
unreasonable risk of causing emotional distress which might result in
illness or bodily harm to both Jane and John.
Counts 7 and 8 allege that between February 1, 1985 and the date of
the Complaint, Smith slandered each plaintiff by stating to others that
John Doe had sexually abused animals and his daughter and by stating
that Jane was unchaste by having engaged in sexual activity with her
Answer to the Complaint/Special Defenses
Defendant Smith's answer to the complaint, dated November 7, 1987,
admits that Smith was a mental health professional, engaged in providing
counseling and therapy for her patients and that she held herself out to
the public as a qualified and skilled family therapist. The answer also
admits that during 1985, she provided therapy to Jane Doe. The answer
generally denies all allegations of wrongdoing.
The answer to the complaint asserts two special defenses, but only
with respect to the slander counts of the complaint, counts seven and
eight. The first special defense asserts immunity from liability
pursuant to Connecticut General Statute Sections 17-38a, 17-38b and/or
17-38c (now, section 17a-101). The second special defense claims that if
Smith made allegedly defamatory statements, that they were made with the
consent of plaintiffs and/or their authorized agents, guardians, parents
The defendants have not asserted truth as a defense. Nor have they
asserted a qualified or conditional privilege. Since those are defenses
which must be specially pleaded, (Donaghue v. Gaffy, 53 Conn. 43,
Atunter v. Morning News Co., 67 Conn. 504, 520; Monczport v.
102 Conn. 448; Johnson v. Whipple, 117 Conn. 599), defendants may not
seek to defend Counts 7 and 8 of this action with evidence of truth or
Invalidity of the Special Defenses
a) Slander Per Se
Charging the commission of a crime involving moral turpitude
constitutes slander per se. Yakavicze v. Valentukevicious, 84 Conn. 350;
Ventressica v. Kissner, 105 Conn. 533,; Moriarty v. Lippe, 162 Conn.
371, 384 (1972). Moral turpitude involves an act of inherent
vileness or depravity in the private and social duties which man does to
fellow man or to society in general, contrary to the accepted rule of
right and duty between man and law. Moriarty v. Lippe, supra.
statements that John Doe sexually abused his daughter, a hamster and a
German shepard, fall within the category of slander per se.
The tort of defamation becomes actionable upon publication. Publication of defamatory material to the spouse of the one defamed
constitutes sufficient publication. Fitzgerald, Wright & Ackerman,
Connecticut Law of Torts; 1991 Revision, p. 411. If defamatory material
is delivered in such a manner that in the ordinary course of events it
will come to the sight or hearing of a third party, such an eventuality
would be sufficient publication. Id.
Malice is not an element of a slander action unless the person
slandered is a public figure or a public official. Id. pt. 416.
was a private citizen, so malice is not part of his burden of proof.
Here Smith frequently communicated to the child's mother the
"fact" that the child had been sexually abused by the father.
Such statements constitute slander per se.
Mary Smith also spoke to others including the Anytown Police
Department and gave a voluntary statement to the police detailing
Smith's claims of sexual abuse against the father. The Anytown Police
Department issued a press release advising the public of the father's
arrest on charges of sexual abuse. This resulted in several newspaper
articles in the Anytown Gazette which detailed Smith's statements that
John had sexually abused "a girl under six" and had tortured
animals in her presence. The newspaper articles and Smith's voluntary
statement to the police confirm Smith's oral statements and are evidence
a) The immunity defense
Connecticut General Statutes Section 17a-101, formerly 17-38a, is
generally known as the "mandated reporting" section of the
statutory scheme to protect children from abuse. Pursuant to Section
17a-101 (b), a mental health professional or a Connecticut certified
marital and family therapist "who has reasonable cause to suspect
or believe that any child under the age of eighteen has had physical
injury or is in a condition which is the result of sexual abuse shall
report or cause a report to be made in accordance with the provisions of
Subsection (c) of this section."
Pursuant to Section 17a- 101(c) "an oral report shall be made
immediately by telephone or otherwise, to the State Commissioner of
Children and Youth Services or his representatives, or the local police
department or the state police, to be followed within 72 hours by a
written report to the Commissioner of Children and Youth Services or his
Plaintiffs contend that defendant is not entitled to immunity for
several reasons. First, it is contended that Smith at the time she made
her report to the Department of Children and Youth Services ("DCYS")
on January 26, 1985, did not have "reasonable cause to suspect or
believe" that Jane had been sexually abused by anyone, let alone
her father. Plaintiffs contend that Smith did not have the requisite
reasonable cause, since there were no facts in her knowledge to satisfy
the reasonable cause requirement and because any conclusion that such
reasonable cause existed on Smith's part was the result of malpractice
by Smith, therefore making it "unreasonable." Smith admits to
having reported orally to DCYS based only upon statements made by the
child's mother over the telephone to Smith. At the time Smith made the
report to DCYS she had not interviewed the child regarding the issue of
sexual abuse, had not had the child examined physically or
psychologically, and indeed had no information to support the
allegations, other than the unreliable and uncorroborated words of the
Secondly, Smith failed to file a written report within 72 hours of
her oral report by DCYS, which is required by the statute. Time-honored
rules of statutory construction require that statutes depriving citizens
of rights in derogation of common law must be strictly construed. Concomitantly, a person seeking to
obtain the protection of those statutes, must have strictly adhered
to and complied with the statute. Since §17a- 101 of the Connecticut
General Statutes by its terms deprives a citizen of a right to sue which
he otherwise would have, in order for Smith to benefit from statutory
immunity, she must have strictly adhered to the requisites of that
statute. Since Smith failed to fulfill the statutory requirement of
filing a written report within 72 hours of her oral report, she did not
comply with the statute, and therefore is not entitled to the protection
it affords to those who do comply.
Section 17a-101 (h), which grants the immunity, states:
Any person, institution or agency which, in good faith, makes the
report required by this section shall be immune from any liability,
civil or criminal, which might otherwise be incurred or imposed and
shall have the same immunity with respect to any judicial proceeding
which results from such report.
Plaintiff contends that Smith is not entitled to immunity under this
Section because her report was not made in good faith. Since her report
was predicated on an absence of factual data, or as a result of her
malpractice, the report to DCYS was not made in good faith.
Even if, for the sake of argument, it is assumed Smith reported to
DCYS in good faith, the complaint in this case does not implicate the
two categories of immunity granted by the statute. The first category is
civil liability which might otherwise be incurred or imposed as a result
of making the report. The second category is civil liability with
respect to any judicial proceeding which results from such report.
the complaint does not assert claims of slander with respect to the
report made to DCYS; the Complaint asserts slander with respect to
statements made to others beyond the scope of the reporting obligation.
Similarly, the complaint does not seek to assert civil liability against
Smith for judicial proceedings resulting from the report. Rather, the
complaint seeks to impose civil liability for events and judicial
proceedings that resulted from activities and statements made by Smith
outside of her reporting obligation.
b) The "authorized slander" defense
Defendant's special defense to the slander counts alleging that
slanderous statements, if made, were made with the consent of the plaintiffs, is without merit.
minor, Jane did not have the capacity to consent. John never consented
to any slanderous statements being made about him or about Jane. To the
extent Jane's mother or attorney "consented" to Smith making
defamatory statements, that consent was necessarily predicated on the
conclusion of Smith, derived from her malpractice. Since whatever
"consent" to making slanderous statements was falsely premised
on Smith's misdiagnosis and other malpractice, any consent of Jane's
mother or attorney to Smith making slanderous statements about Jane's
lack of chastity is invalid. Furthermore, neither Elizabeth Doe (the
mother) nor Jane's attorney, had the capacity to consent to Smith making
defamatory statements about John Doe.
Failure to retract constitutes malice. In addition, the allegations
which were published constitute slander per se and require no proof
beyond their publication. Defendant did not assert the defense of
"truth" to the slander allegations, and therefore may not
assert that defense to the slander claims at trial.
Infliction of Emotional Distress Claims
Counts 5 and 6 of the complaint assert claims of negligent infliction
of emotional distress by Mary Smith on Jane and John Doe, respectively.
These counts incorporate the allegations of malpractice. Essentially it
is the claim of both plaintiffs that it was reasonably foreseeable to
Mary Smith that if she attempted to treat Jane negligently, in a
situation way beyond her competence, skill, training and judgment, it
was reasonable to expect that she would cause emotional harm to John and
Jane, and that in fact, she has caused such emotional harm to John and
Jane. To the extent Smith seeks to claim that her therapeutic
relationship was with Jane only, it is certainly clear that John was
within the zone of danger of people who Smith could reasonably foresee
would be affected by Smith's negligent conduct. Regardless of issues of
therapeutic relationship, Smith knew, and indeed her code of ethics
makes clear, that family therapists are in a unique position to affect
the lives of family members and must therefore act with special care in
their public and private pronouncements. Smith failed to exercise
special care or even any minimum degree of care and competence.
Mary Smith labeled John Doe as a sexual abuser of his daughter and
Jane Doe as a victim of child abuse without any legitimate basis for
those labels. Smith subjected Jane to nine months of destructive
interrogation under the guise of "play therapy." Smith
subjected John Doe to emotional distress and public ridicule, as a
result of her negligent treatment of John and Jane, defamatory
statements to Elizabeth Doe, the Police Department and ultimately, all
of Anytown as a result of republication of Smith's statements in the
Anytown Gazette. Ultimately, Smith's conduct led to the disappearance of
Jane Doe and Elizabeth Doe and a total lack of contact between John and
Jane since 1986.
By Smith's own testimony a child that is a victim of sexual abuse
will need years of therapy. Since the only sexual abuse that took place
in this case was Smith's promulgation of sex abuse ideas on Jane,
resulting in the destruction of this family, it will take years to
provide any semblance of normalcy to John or Jane. Indeed, in Jane's
absence it is difficult to assess the full extent of her injuries.
However, by Smith's own testimony, the Doe family has suffered greatly.
this Court can take judicial notice that the mere separation of a father
and daughter from a loving relationship would produce untold anxiety and
distress in any parent. No sum of money can ever restore what John and
Jane have lost. However, since money is the only thing that can begin in
any way to redress the grievous wrong done in this case, the Court
should sustain whatever verdict is rendered, no matter how high.
The foregoing trial memorandum is designed to give the Court guidance
as to the nature and extent of the testimony that will be offered in
this case and some of the legal issues that may arise. Counsel for the
plaintiffs will be happy to enlighten the Court on any additional topics
should the Court so request.
Attorney for Plaintiffs
* Readers who want more information regarding this article may contact
Robert L. Herbst, Esquire at Herbst & Greenwald, 122 East 42nd
Street, Suite 2500, New York, New York 10168. [Back]