Thanks for the repressed memories.

Thanks for the repressed memories.

Thanks for the repressed memories.

The law, lawyers, and the court.
Jan. 27 2005 5:11 PM

Thanks for the Repressed Memories

Junk vs. science in the Paul Shanley trial.

Hmm. Do I know you?
Hmm. Do I know you?

Defrocked priest Paul Shanley faced his accuser (unnamed in the media) yesterday, in his criminal trial for molesting young boys in the 1980s at St. Jean's Parish in Newton, Mass. Shanley, who turned 74 this week, faces three charges of raping a child and two charges of indecent assault and battery on a child. He is eligible for a maximum sentence of life in prison. Of the four original complaining witnesses, three have dropped out of the case, leaving just one to testify to years of alleged sexual abuse. The state's case is further weakened by the fact that the accuser claims to have recovered his memory of this abuse only recently.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

According to the 27-year-old witness, his memories of the abuse began to surface only in 2002, when he was a military police officer stationed in Colorado. His girlfriend called to tell him about an article about Shanley in the Boston Globe and about another man, Greg Ford, who claimed to have been raped by Shanley at St. Jean's. Ford was a good friend, and hearing about his experience seems to have tripped his own memory. He called a lawyer.

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Not surprisingly, one of the crucial issues in the Shanley trial is whether "repressed memories" represent medical fact or junk science. And the trial itself has become something of a referendum on whether human beings are capable of forgetting, then remembering, details of traumatic, life-changing events.

The notion of repressed memory was floated by Sigmund Freud in the late 19th century. He suggested it occurred when a patient (usually a hysterical female victim of sexual abuse) "intentionally seeks to forget an experience, or forcibly repudiates, inhibits and suppresses" memory. The basic theory of repressed memory, as described by Jacqueline Hough in a 1996 article in the Southern California Law Review holds:

It is often beneficial for victims to forget these events because at the time of the abuse a victim experiences a variety of overwhelming emotions including helplessness, fear, shame, guilt, pain and betrayal. To survive, the victim is forced to mentally cope with these emotions because the victim often cannot physically escape the abusive environment. Blurring of the trauma, denial, repression and amnesia of the experience are common ways children cope with the trauma and the accompanying emotions.

Clinicians argue that repressed memories can be recovered through treatments including hypnosis, age regression, or suggestion therapies, but—as is allegedly the case with Shanley's accuser—some victims experience spontaneous recovery. The American Psychiatric Association formally recognized repressed-memory syndrome in 1994, calling it "dissociative amnesia."

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Advocates of repressed-memory syndrome have been well met on the battlefield in recent years by proponents of what's known as the "false memory syndrome." They insist that the recovery of repressed traumatic memories is all bunk and that most repressed memories of sexual abuse are the result of negligent therapists who implant and reinforce false memories during treatment. The APA does not recognize "false memory syndrome," which doesn't help much in the courtroom. But the public is still vaguely aware that repressed memories were fashionable in the '80s and went out again by the late '90s.

The chasm between the two camps in this debate—and the stunning contempt they evince for one another's research—is to some degree a function of warring agendas and approaches. One legal writer claims that "in over 1,000 child sexual abuse, rape and other types of cases in which I have been personally involved, I have not met one real victim who has forgotten that they were assaulted and then remembered it at a later date." On the other hand, Wendy J. Murphy summarily dismisses false memory syndrome, stating, "This simply does not exist as a recognized medical condition. The phrase was coined by the False Memory Syndrome Foundation, an organization formed to provide legal and emotional support to those accused of sexual abuse."

Brain scientists, the proponents of false memory syndrome, must believe that memory is fluid and malleable, whereas clinical therapists who are proponents of repressed memory syndrome have to rely on their patient's autobiographical accuracy in order to treat them. The politics of the parties themselves—with sex-abuse victims on one hand and falsely accused abusers on the other—means the scholarly debate is mired in hate mail, death threats, and near-toxic levels of recrimination.

The legal community was relatively late to this party, only starting to grapple with problems of proof and admissibility after widespread clinical and public reports of repressed memories occurred in the 1980s. Most cases involving recovered memories arise in the civil, as opposed to criminal, context, precisely because of the lower burden of proof. And it's an understatement to say that there is vast disagreement within and among courts about the reliability and admissibility of this evidence. The Supreme Court of New Hampshire reviewed the available literature on recovered memories and found that "the phenomenon of recovery of repressed memories has not yet reached the point where we may perceive these particular recovered memories as reliable." On the other hand, the Federal District Court for the Eastern District of Michigan held that a proposed expert demonstrated sufficient support for recovered-memory theory to allow her to testify before a jury.The truth is that no one seems to know anymore whether repressed memory is a medical fact or something that only happens to Cheryl Ladd on Lifetime Television for Women.

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The two legal questions concerning the science of repression have centered on whether evidence of repressed memories can be used to halt a statute of limitations, and whether it meets the requirements of legitimate scientific evidence. In the Shanley case, the statute of limitations is not in question. The issue of whether repressed memory constitutes scientific evidence, however, is still very much on the table.

The most common standard for scientific testimony in court was laid out in 1993 by the Supreme Court in Daubert v. Merrell Dow.Daubert attempted to clarify the federal rule for determining which kinds of scientific expert testimony are reliable enough to introduce at trial. Daubert suggested that trial courts consider four factors: 1) the ability of the expert's theories to be tested; 2) whether their theories have been subject to peer review; 3) the rate of error in the studies; and 4) the overall rates of acceptance of these theories among the scientific community. Daubert allows juries to hear and assess a wider range of scientific evidence than they previously might have, but it sets up individual judges as the gatekeepers. In effect, Daubert makes lay judges the arbiters of complex scientific theories. Although not all states use the Daubert test, most state judges are now in the uncomfortable position of having to evaluate whether jurors should get to hear about the science of repressed memory, a science that's far from exact.

The notion of repressed memories are a dream come true for snarky defense lawyers who argue that people can't simply forget years of sodomy. Defense lawyers base their strongest scientific objections to repressed memories on studies showing that such memories can be implanted and manipulated. There are reputable studies supporting both sides of this debate: A 1994 study by Linda Meyer Williams, published in the Journal of Consulting & Clinical Psychology, suggested that over one-third of the patients she examined had repressed childhood incidents of sexual abuse (her study has come under fire for methodological flaws). Another famous study, by Professor Elizabeth Loftus—in which older family members were used to implant false memories of having been lost as a child at a shopping mall—revealed that subjects were not only susceptible to the implantation of false memories, but that some were likely both to fabricate details and to insist that the memory was accurate, even upon being told that it was just an experiment.

Defense lawyers seeking to keep testimony about recovered memory from jurors tend to go for baby-with-the-bathwater arguments: Since some recovered memories prove false, all recovered memories are presumptively unreliable. Since some therapists are able to suggest false memories to their clients, all recovered memories are presumptively fabricated. That sexual-abuse cases often lack physical evidence or outside witnesses only makes the stakes higher on both sides.

Since the sole Shanley witness claims to have had a spontaneous resurfacing of his repressed memory, as opposed to a memory recovered in therapy, the most common empirical objection—that his memories were implanted—has not been raised in this trial. What is very much at issue is his motive: He recovered $500,000 in the civil settlement, and defense counsel keeps telling the jury that he called a plaintiff's attorney within nanoseconds of recovering his memory. Most urgently, however, Shanley's lawyer continues to tell jurors that no one simply loses years of traumatic life history. Period.

It doesn't help Shanley's case that church documents reveal that officials knew he advocated sex between men and boys and yet continued to transfer him from parish to parish; or that they were aware of complaints against him as early as 1967 but did nothing about it.

Still, the bottom line remains that there is probably no one crystalline answer about the scientific truth of repressed memories. As with most overheated scientific controversies in the courtroom, the truth probably lies midway between two bitterly polarized camps: Some witnesses do make up stories, and some therapist do implant memories; but some victims surely do recover lost childhood memories that were too terrible to consider at the time. The reason we have trials—indeed, the reason we have juries—is that sometimes sorting between the "junk" and the "science" has less to do with experts and scientific journals than with the truth behind a witness's eyes.