OHIO ASSOCIATION OF RESPONSIBLE MENTAL HEALTH PRACTICES

May 2003

Dispatch From the Repressed-Memory Legal Front
by Elizabeth F. Loftus, Ph.D., and Deborah Davis, Ph.D.

Elizabeth F. Loftus

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.

Blaming the Defendant's Alternate Personalities
Skepticism also abounds in the criminal cases in which individuals have tried to argue that their crimes should be forgiven because they are suffering from dissociative identity disorder, a diagnosis often associated with repressed memories. Death-row inmate David Pellegrini, for example, tried to block his execution, claiming that when he shot a convenience store clerk, he was suffering from multiple personality disorder that his lawyer should have argued that he was innocent by reason of insanity (Pellegrini v State, 2001). The Nevada Supreme Court rejected his argument.

Skeptically Received, But Costly
In some states, child sexual assault charges can be brought long after the alleged victim reaches the age of majority. Under New Hampshire law, for example, such charges can be brought until a victim's 40^th birthday (Belluck, 2002). Other states have resisted such procedural vehicles.

In 2001, the Connecticut legislature considered a bill that would have allowed an alleged victim of child sexual abuse to seek criminal charges against the accused perpetrator up until the victim attained the age of 48 years. Supporters argued that the bill recognized legitimate delays in reporting. Opponents stressed that the bill would not give the accused a reasonable chance to defend themselves, defeating the purpose of the statute of limitations. Testimony could hardly be particularly reliable 30 years after the complainant reached 18 years of age. The legislation failed.

The Connecticut Law Tribune (Advisory Board, 2001) called the bill odious and concluded by first acknowledging the unpleasant reality of sexual abuse and then going on to say that calling "alleged perpetrators of unthinkable crimes to task many years after an incident, after memories have faded and witnesses have passed away, or when a memory is 'restored,' is unjust."

Implications for Patients and Therapists
It does appear that the laws in many states allow patients to legally pursue their claims based on repressed or dissociative experiences that are recently revived. But in practice, patients face much skepticism from judges and juries. The legal allowance thus means that accused defendants suffer greatly, while patients experience renewed frustrations.
In appreciating these costs, psychiatrists may wish to avoid encouraging their patients to seek legal redress. In addition, psychiatrists might consider whether they have an obligation to inform their patients of the risks of pursuing claims based on de-repressed memories.

A major risk is that, in some cases, the patient may be liable not only for their own attorney fees, but for the defendant's attorney fees as well. Often, the patient's medical records will be scrutinized, not only in civil cases, but also in criminal cases where the records are frequently subject to in camera inspection.

Finally, patients may face costly counterclaims brought by those whom they accuse in court. This occurred in a case brought by the 48-year-old son of a Las Vegas gynecologist. Quincy Fortier Jr. contended he recently recovered "long-frozen memories" of sexual abuse inflicted on him by his father (Thevenot, 2002). The father filed a counterclaim, accusing his son of intentionally inflicting emotional distress and portraying him in a false light. While the father's counterclaim was eventually dismissed by the judge, the jury returned a verdict on behalf of the father in the main claim after deliberating less than an hour. In other cases involving counterclaims, accusers have been found liable for defamation or emotional distress and subject to substantial damages.

Once a case does find itself enmeshed in the legal process, psychiatrists who enter as experts might do well to keep a few things in mind. There is a relatively new position statement, put out by the American Psychiatric Association (2000), that acknowledges the problem associated with denying genuine abuse but also reminds professionals, "Memories can also be altered as a result of suggestions, particularly by a trusted person or authority figure." It goes on to caution that, when providing expert opinion about memories of abuse, psychiatrists should refrain from making public statements about the historical accuracy of uncorroborated reports of new memories based on observations made in therapy.

Perhaps the legal system may not be the best place for resolving repression claims, either for patients or their psychiatrists. Perhaps a committee should be convened to explore whether some other arena would be better for arbitrating such disputed claims.

The old Peanuts cartoon showing Lucy's repressed-memory extraction work reflected that state of affairs. But the cartoonists these days seem to have changed their tune -- in a positive way -- when they depict mental health humor. In mid-2001, Lucy again hung out her shingle and offered psychiatric help for five cents. Charlie Brown complained that he needed someone to tell him he's doing the right thing. Lucy, instead of talking to him about his repressed memories, first simply told him he was right and eventually offered this advice: "You need more in life than just having someone around to tell you when you're doing the right thing." Although that last bit of advice cost Charlie another five cents, the cartoon expresses a much kindlier humor directed toward the mental health care profession than we saw a decade ago.

Dr. Loftus is professor of psychology and adjunct professor of law at University of Washington. She is also past president of the American Psychological Society.

Dr. Davis has taught psychology at University of Nevada, Reno, since 1978. She is also president of Sierra Trial and Opinion Consultants, a firm offering jury selection, mock jury research and other trial preparation services.

Psychiatric Times  April 2002  Vol. XIX  Issue 4

Big business: the trivializing of trauma