Dispatch From the Repressed-Memory Legal Front
Dispatch From the Repressed-Memory Legal Front
Several years ago, in a widely circulated Peanuts cartoon, Lucy hung out her shingle and offered psychiatric help in recovering repressed memories. She told Charlie Brown: "The fact that you can't remember being abducted by aliens and satanically abused is proof that it really happened."
About that same time, Walter Goodman reviewed Ofra Bikel's award-winning television program Divided Memories for the New York Times. His review, "Growth Industry: Helping Recall Sexual Abuse," asked if repressed-memory therapy was a cure or a fad.
By the time that Divided Memories aired, thousands of people, mostly women, had recovered memories of extreme sexual abuse that had allegedly been totally repressed. A small percentage later recanted their stories, and some sued their therapists for planting false memories. A handful of parents whose grown-up children had not recanted also sued their offsprings' therapists, claiming that false memories had been planted during the therapeutic process.
One example is the Ramona case, in which Holly Ramona sued her father, Gary Ramona, after "de-repressing" more than a decade of sexual abuse and rape (Johnston, 1997). The case captured significant attention in the psychiatric community when the father successfully sued his daughter's therapists for planting false memories and won a half-million-dollar jury verdict.
While much of the public now thinks that the repressed memory carnage is over, in fact, it is not. The number of new cases has dramatically declined and numerous alleged victims have recanted their accusations or reestablished ties without saying they were wrong. However, many of the afflicted families are still estranged, many proponents of repressed-memory therapy remain angry, and more than a few innocent people remain imprisoned, convicted of crimes that did not occur. Legal cases involving testimony about repressed memories continue to wreak havoc on the lives, emotions and bank accounts of hundreds of individuals.
Statutes of Limitation for Legal Cases
Cases proceed in part because of extensions in the length of time alleged victims have to pursue civil actions and the length of time that prosecutors have to try the case in criminal court. An article by attorney Jeffrey Dion (2001), chief counsel for public affairs for the National Crime Victim Bar Association, aimed at lawyers who represent plaintiffs in civil cases, praised time extensions and advised litigators to be aware of them and how they differ from state to state. Dion applauded the fact that most states stop running (tolling) the statute of limitations for claims of sex-abuse injury to a minor until the child reaches age 18, saying such extended statutes are justified by the severe emotional, psychological and physical harm suffered. He added, "Some victims are so traumatized that they repress memories of the events." He noted that at least 15 states require that a civil action be brought within a specific number of years after the injury was, or should have been, discovered. States, however, vary, and some don't cover child sex abuse outside the family or allow the statute extended beyond the plaintiff's 18th birthday.
Of particular interest to mental health care professionals are the civil cases that allege sexual abuse by a counselor or therapist. In Iowa, for example, these cases must be brought within five years of the date the victim was last treated by the therapist. Dion applauded this lengthy extension on the grounds that it recognizes that the continuing influence and control that a perpetrator may have over a victim may prevent prompt reporting. Extensions to file against therapists mean, of course, that dubious cases are filed at great personal cost to therapist-defendants.
This occurred in a case in which one of us testified. A woman sued her former psychiatrist after recovering long-since repressed memories of molestation allegedly occurring during her prior therapy. A psychiatrist of some renown supported the patient's claims, opining that the evidence provided "the greatest support to the hypothesis that this is a valid sexual abuse case." Two defense experts, after reviewing extensive materials, found serious reasons to doubt that abuse had occurred at all, and the jury found in the psychiatrist's favor. Despite the verdict, the doctor suffered greatly.
Reactions to Repressed-Memory Claims
This case points to a problem with lengthy statutes of limitations, namely that they will apply not only to victims with continuous memories accompanied by solid corroboration, but also to individuals who have recovered allegedly repressed memories with no corroboration and rather dubious claims. Both types of cases create a horrific situation for alleged perpetrators who are sometimes very old; have failing memories; and can only deny, but not disprove, the accusation. Even though the burden of proof is on the prosecution, the reality is that when one side presents emotional, detailed stories, the defense has a hard row to hoe.
Before Bikel's Frontline documentary, a number of judges and juries accepted even the more suspicious claims of massive repression or extreme brutalization. More recently, however, courts appear to be treating the claims of total repression or dissociation with significant (although not universal) skepticism.
In Massachusetts, the highest court ordered a new trial for school bus driver William Frangipane, who was convicted of raping a teen-ager who did not recall most details of the assault until five years after it allegedly occurred (Commonwealth v Frangipane, 2001). The court ruled that Frangipane was entitled to a new trial because an expert witness used by prosecutors to discuss the effects of trauma on memory testified outside her area of expertise. The court noted, "The subject of 'recovered memory,' particularly of childhood sexual abuse, is highly controversial."
A comprehensive review of legal cases published by Piper and colleagues (2000) concluded that while a few courts do allow testimony by individuals about their allegedly de-repressed memories, the great majority of courts have refused to acknowledge the validity of repressed and recovered memory. This was true for cases involving efforts to toll a statute of limitations, or when there had been an effort to present to the jury the claim that repressed memories constitute a scientifically established theory. These courts repeatedly determined that the concepts of repressed and recovered memory were controversial, not generally accepted and thus not admissible to a jury.
In one California case, for example, the court denied the plaintiff's request to toll the statute of limitations based on repressed memories, stating that repressed memory "is not generally accepted as valid and reliable by a respectable majority of the pertinent scientific community" (Engstrom v Engstrom, 1997). In a Rhode Island case, the defendant was freed after the court ruled, "The State has not met its burden of establishing that repressed recollection is reliable and admissible as scientific evidence" (State of Rhode Island v Quattrocchi, 1999). Similar skepticism was expressed in a newspaper editorial in Canada's National Post (2001): "The evidence has never been more compelling that 'repressed' and 'recovered' memories are highly suspect." After pointing to the real possibility that Canadians were languishing in jail because a court had taken such evidence seriously, the editorialists urged the federal justice minister to call for an inquiry.