District Court for the Southern District of Iowa, Harold D.
Vietor, Judge.

Certified questions regarding Iowa law in civil case
arising out of alleged sexual assault. QUESTIONS ANSWERED.

Robert J. Noe, Richard M. Batcher, and Jeffrey C. Kull
of Bozeman, Neighbour, Patton & Noe, Moline, Illinois, for
defendant-movant Gordon Cherwitz.
James R. Snyder, James M. Peters, and Webb L. Wassmer
of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, and
Charles E. Miller and Amy H. Snyder for Lane & Waterman,
Davenport, for defendant-movant The Davenport Clinic.

Roxanne Barton Conlin of Roxanne Barton Conlin Law
Firm, Des Moines, for plaintiffs-respondents.

Considered by Harris, P.J., and Larson, Carter, Snell,
and Andreasen, JJ.
LARSON, Justice.
Jane Doe alleges that she was sexually assaulted in
1973 by Dr. Gordon Cherwitz during a pelvic examination at
the Davenport Clinic. In 1992 Doe, with her husband and
children, sued Cherwitz and the clinic. The defendants
moved to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted, based on Iowa's two-year statute of limita-
tions. See Iowa Code Sec. 614.1(2) (1991).
In resisting the motion, the plaintiffs rely on 1990
Iowa Acts chapter 1241, section 3 (codified as Iowa Code
section 614.8A (1993)) and the common-law "discovery rule"
of Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94
(1967), and Callahan v. State, 464 N.W.2d 268 (Iowa 1990).
The federal district court certified these questions to
us pursuant to Iowa Code chapter 684A and local rule 23 of
the United States District Court for the Northern and
Southern Districts of Iowa: (1) Is a person who was
eighteen years old on June 1, 1973, the date of this
alleged event, a "person who was a child" within the
meaning of Iowa Code Sec. 614.8A? (2) If the answer to
question 1 is "yes," does Iowa Code section 614.8A apply
retroactively to revive a claim that may have been barred
by Iowa Code section 614.1(2)? (3) If the answers to both
questions 1 and 2 are "yes," does the phrase "an action for
damages or injuries suffered as a result of sexual abuse"
in section 614.8A encompass claims other than a direct
claim of sexual abuse, i.e., would it include such claims
as negligent infliction of severe emotional distress,
negligence, respondeat superior, and premises liability as
included in the plaintiffs' complaint? (4) If the answer
to either question 1 or 2 is "no," is the "discovery" rule
of Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94
(1967), and its progeny available to show that these claims
did not "accrue" until the victim's January 1991 flash-
backs? (5) Does the spouse of a person sexually abused
prior to their marriage have a claim for loss of spousal
consortium? (6) Does a minor child of a person sexually
abused prior to conception and birth of the child have a
claim for loss of parental consortium? (7) If the answer
to question 5 or 6 is "yes," would such consortium claim or
claims be subject to the same statute-of-limitations laws
as govern the claims of a sexually abused person? (8) If
plaintiff Jane Doe's claims are not time-barred, does Iowa
law recognize the tort of negligent infliction of severe
emotional distress?
I. Application of Section 614.8A (1993).
Section 614.8A of the 1993 Code, enacted in 1990,
provides:

An action for damages for injury suffered as
a result of sexual abuse which occurred when the
injured person was a child, but not discovered
until after the injured person is of the age of
majority, shall be brought within four years from
the time of discovery by the injured party of both
the injury and the causal relationship between the
injury and the sexual abuse.
(Emphasis added.)
The pivotal question in applying section 614.8A is
whether Jane Doe, at eighteen years of age, was a "child"
when the acts allegedly occurred. Section 614.8A does not
define either "child" or "sexual abuse." In 1973, when the
act allegedly occurred, the age of majority was nineteen.
The plaintiffs argue that the victim, as a minor, was a
"child" for purposes of applying section 614.8A. The
defendants respond that the legislature purposely chose the
word "child" and not "minor" in order to distinguish the
two and that it did not intend that an eighteen year old
would be treated as a "child."
Section 614.8A was enacted as section 2 of chapter 1241
of the Acts of the Seventy-Third General Assembly. The
first section of that act, now found in Iowa Code section
668.15, is not directly involved in this case. But, that
section sheds light on the meaning of "child" and "sexual
abuse" as those terms are found in the second section of
the Act.
The first section of the 1990 Act provides:
In a civil action alleging conduct which
constitutes sexual abuse as defined in section
709.1, sexual assault or sexual harassment, a
party seeking discovery of information concerning
the plaintiff's sexual conduct with persons other
than the person who committed the alleged act of
sexual abuse, as defined in section 709.1, sexual
assault, or sexual harassment, must establish
specific facts showing good cause for that
discovery, and that the information sought is
relevant to the subject matter of the action and
reasonably calculated to lead to the discovery of
admissible evidence.
(Emphasis added.)
Iowa Code section 709.1 defines "sexual abuse":
Any sex act between persons is sexual abuse
by either of the participants when the act is
performed with the other participant in any of the
following circumstances:

1. The act is done by force or against the
will of the other. . . .
2. Such other participant is suffering from
a mental defect or incapacity . . . .
3. Such other participant is a child.
(Emphasis added.)

"Child," in turn, is defined in Iowa Code section 702.5
as "any person under the age of fourteen years." We
believe the 1990 Act makes it clear that the terms "sexual
abuse" and "child" are to be defined by the criminal code
and that "child" for these purposes means one under the age
of fourteen.
As an eighteen year old at the time of the alleged act,
Jane Doe was not a "child" under section 614.8A. This
holding makes it unnecessary to address the second and
third certified questions, which relate to the retroactive
application of section 614.8A and the application of that
statute to claims against defendants other than Cherwitz.
II. The Common-Law Discovery Rule.
The plaintiffs contend that, if they are not covered by
section 614.8A, they may nevertheless rely on our
common-law discovery rule to avoid the statute of limita-
tions. Under the traditional discovery rule,
a cause of action based on negligence does not
accrue until [the] plaintiff has in fact dis-
covered that he has suffered injury or by the
exercise of reasonable diligence should have
discovered it.

Chrischilles, 260 Iowa at 463, 150 N.W.2d at 100.
In Callahan v. State, 464 N.W.2d 268 (Iowa 1990), we
applied the common-law discovery rule in a sexual abuse
case filed under the state tort claims act, Iowa Code ch.
25A (1987). In that case, a four-year-old child had
allegedly been sexually abused at the Iowa School for the
Deaf beginning in 1981. His mother did not discover the
abuse until 1988, when the child disclosed it under
intensive counseling. His mother filed suit, and the State
moved to dismiss it under the statute of limitations.
In Callahan, we noted the phenomenon of the
"posttraumatic stress disorder" (PTSD), which tends to
cause victims to repress information regarding abuse and to
make discovery by others difficult. Id. at 271. We held
that, based on our general discovery rule, the claim did
not "accrue" under the statute of limitations until the
plaintiff knew or under the exercise of reasonable care
should have known both the fact of the injury and its
cause. Id. at 273.
We conclude that the common-law discovery rule, as
adopted in Chrischilles and followed in Callahan, should
apply here. The claim accrued for statute-of-limitation
purposes when the alleged victim discovered the injury or,
in the exercise of reasonable care, should have discovered
it. The burden of proof is on the plaintiff. Callahan,
464 N.W.2d at 273.
III. The Consortium Claims.
Jane Doe's husband and children have asserted claims
for the loss of Jane Doe's consortium as wife and mother.
The defendants respond that as a matter of law the claims
cannot be recognized because the alleged act occurred
before the marriage and the conception of the children.
The general rule is that a spousal claim for loss of
consortium requires a marital relationship.
Gillespie-Linton v. Miles, 58 Md. App. 484, 473 A.2d 947
(1984); Sawyer v. Bailey, 413 A.2d 165 (Me. 1980); Childers
v. Shannon, 183 N.J. Super. 591, 444 A.2d 1141 (1982);
Metauro v. Abbott Lab., 146 Misc. 2d 537, 551 N.Y.S.2d 444
(1990).
A marriage relationship between the parties
must exist at the time one of the parties is
injured in order for the other party to have a
cause of action for loss of consortium. Thus, the
right to recover for loss of consortium does not
inhere in a person not married to his or her
consort who is injured.

41 C.J.S. Husband & Wife Sec. 117, at 412-13 (1991). Accord
Restatement (Second) of Torts Sec. 693 cmt. h (1977); 41
Am. Jur. 2d Husband & Wife Sec. 447, at 373-74 (1968).
In general, courts have denied recovery for
loss of consortium where the injury occurs before
the marriage. Frequently observing that the right
of consortium grows out of the marital relation-
ship, these courts have refused to allow recovery
for loss of consortium on the ground that the
respective spouses were not married at the time of
the injury.

Annotation, Recovery for Loss of Consortium for Injury
Occurring Prior to Marriage, 5 A.L.R.4th 300, 301 (1981).
We have refused to recognize a claim for loss of
consortium by a cohabiting partner in a marriage-like
relationship. Laws v. Griep, 332 N.W.2d 339, 341 (Iowa
1983). The rationale of Laws was that for policy reasons
"persons who do not accept the legal responsibilities of
marriage should [not] have a legal right of married
persons. The policy of this state is that the de jure
family is the basic unit of social order." Id. at 340-41.
See generally Sonja A. Soehnel, Annotation, Action for Loss
of Consortium Based on Nonmarital Cohabitation, 40
A.L.R.4th 553 (1985).
The plaintiffs acknowledge the general rule denying
recovery for premarital wrongs, but they contend that any
claim for loss of consortium could not have "accrued"
until, after her marriage, Jane Doe first became aware of
it. See Callahan, 464 N.W.2d at 270-73.
Other courts have allowed recovery for loss of consor-
tium when the original act occurred prior to marriage if
the damage was not discovered until afterward. See, e.g.,
Kociemba v. G.D. Searle & Co., 683 F. Supp. 1577, 1578-82
(D. Minn. 1988); Aldredge v. Whitney, 591 So. 2d 1201, 1205
(La. App. 1991); Furby v. Raymark Indus., Inc., 154
Mich. App. 339, , 397 N.W.2d 303, 306 (1986).
We do not choose to follow these cases. The discovery
rule has been adopted to ameliorate the harsh results of a
statute of limitations when the injury was unknown and
basically unknowable. See Urie v. Thompson, 337 U.S. 163,
169, 69 S. Ct. 1018, 1024, 93 L. Ed. 1282, 1292 (1949);
W. Page Keeton, Prosser & Keeton on the Law of Torts ? 29,
at 163-64 (5th ed. 1984).
The discovery rule anticipates that the claimant had a
valid cause of action within the period of limitations, but
for some reason, was unaware of it. Here, because there
was no marital relation between Jane and John Doe, there
was no cause of action within the period of limitations,
and the discovery rule cannot create one when none had ever
existed during the period of limitations. See Anderson v.
Eli Lilley & Co., 79 N.Y.2d 797, 588 N.E.2d 66, 68
(1991). The same is true with respect to the claim by Jane
Doe's children.
We conclude that, in response to questions 5 and 6,
neither the spouse nor the minor children have a claim for
loss of consortium. This resolution makes it unnecessary
to decide question 7.
IV. The Claim For Negligent Infliction of Emotional
Distress.
The last question is whether, if Jane Doe's claims are
not time barred, will Iowa recognize the tort of negligent
infliction of severe emotional distress. The plaintiffs
rely on Restatement (Second) of Torts section 313 to
establish this ground of liability.
While we have recognized emotional distress as an
element of damages, e.g., Niblo v. Parr Mfg., Inc., 445
N.W.2d 351, 357 (Iowa 1989), we have declined to recognize
section 313 as an independent ground of liability. Cutler
v. Klass, Whicher & Mishne, 473 N.W.2d 178, 182-83 (Iowa
1991). We adhere to that rule here and answer this
question in the negative.
V. Summary.
In summary, we answer the questions as follows: (1) A
person eighteen years old on June 1, 1973, was not a
"person who was a child" under Iowa Code section 614.8A.
(2) The discovery rule of Chrischilles is applicable in
this case. (3) Neither the spouse nor the children of Jane
Doe have a valid claim for loss of consortium. (4) Iowa
does not recognize the tort of negligent infliction of
severe emotional distress.
QUESTIONS ANSWERED.
All justices concur except Carter, J., who dissents
from Division II without opinion.