False Memory Syndrome Foundation Vol 06 No 10 1997 nov

20 Pages·1997·0.93 MB·English

F A L S E MEMORY SYNDROME FOUNDATION NEWSLETTER
November 1997 Vol. 6 No.lO
Dear Friends, Far too many of the members of those organizations are
engaged in the very practices that are problematic. They
After a 3~month embargo, the prestigious British Royal
drag American professional organizations to a low common
College of Psychiatrists on October I, 1997 issued its rec~
denominator rather than to soar to the highest standard of
ommendations on "Reported Recovered Memories of Child
professional practice. We would be delighted to be proved
Sexual Abuse." A key paragraph:
wrong.
Psychiatrists are advised to avoid engaging in any "memory
Mental health professionals abdicated their responsibil
recovery techniques" which are based upon the expectation
ity for the dangerous practices of memory recovery and now
of past sexual abuse of which the patient has no memory.
the courts are sorting out the problems. "At present, mental
Such "memory recovery techniques" may include drug-medi
health professionals are in the precarious position of losing
ated interviews, hypnosis, regression therapies, guided
control of their own profession," states Alan Scheflin in his
imagery, "body memories," literal dream interpretation and
joumaling. There is no evidence that the use of conscious description of his presentation at the International Society
ness-altering techniques, such as drug-mediated interviews or for Traumatic Stress Studies in Montreal in November. His
hypnosis, can reveal or accurately elaborate factual informa description also notes that "Almost 1,000 lawsuits are now
tion about any past experiences including childhood sexual pending against dissociative disorder and trauma thera
abuse. Techniques of regression therapy including "age pists." We do not know the source or accuracy of that fig
regression" and hypnotic regression are of unproven effec
ure, but we do know that the increasing number of lawsuits
tiveness.
is undermining the credibility of the whole profession.
The College Psychiatric Bulletin (1997), 21,663-665
Month after month in this newsletter we have printed
The Royal College is the first professional organization the details of lawsuits brought against therapists by fanner
to address the issue of the rights of families. The College patients because of memory-recovery techniques--each
noted that: technique more outrageous than the last. Burgus v Braun,
Once the accusation is taken omside the consulting room, scheduled to start trial on November 3, is one of the most
especially if any question of confrontation or public accusa important of these cases. Readers may recall details of this
tion arises, there can rarely be any justification for refusaJ to case from the Frontline documentary on November 2, 1994
allow a member of the therapeutic team to meet family mem called "The Search for Satan." Among other things, Patty
bers. Burgus's sons John and Mikey, ages 5 and 4, were admitted
There would never have been an FMS Foundation if to the children's psychiatric ward and kept there for several
those with new memories and their therapists had been will years. Dr. Braun told the family that the boys might be
ing to talk to family members prior to making accusations genetically predisposed to multiple personality disorder.
public. The cruelty of accusing parents and then not allow- ,---------------------,
In this Issue •••
ing them to defend themselves is a hallmark of the FMS
phenomenon. /loyal College of Psychiatry Recommendations ........ 3
We have reprinted the entire Royal College Foous,on Science ............................................................5
legalC orner .................................................................... 7
Recommendations in this issue. Thls statement may be the
Book Reolew .................................................................. 12
most powerful tool yet that has been put in the hands of
Make a Difference ........................................................ 13
families. Use that tool. Disseminate it widely.
From Our Readers. ......................................................... 14
We have been asked if the professional organizations in Bulletin Board ...................................... :. ........................ TB·.
this country will follow in like manner. Sadly, their past Nollce·
behavior gives us little reason to believe that they will. January/ February 1998 wJII'I!ie' a· c;omt;lneq• lsswe.
3401 Market Street. Suite 130. Philadelphia, PA 19104-3315. (215) 387·1865, Fax [phone]
Therapy for the Burgus family ended when the $3 million insurance expired.
While many people try to dismiss the problems of memory-r~cove~ tech
niques as being done by just a minority of poorly trai~e.d therapts.ts, thts ~ase
involves Rush Presbyterian Hospital in Chicago, a prestigiOus teachmg hospital. AMEruCANffi11CEIDL,OGICA.L
Dr. Braun is one of the best known psychiatrists specializing in dissociative dis ASSN. REAFFIRMS AS AN
APPROVED PROVIDER OF CON·
orders. He served as President of the International Society for the Study of
TINUING EDUCATION'FOR FIVE
Dissociation. Because of Braun's belief in an intergenerational satanic conspira
ADDITIONAL YEARS
cy and in the ability of hypnosis and sodium amytal to aid in the recovery of his
torically accurate memories, Burgus v Braun is vivid evidence that the extreme The American Psychological
practices of memory-recovery techniques are found in the mainstream of Association through 1\s 'Education
American psychiatry and psychology. American professional organizations have
Directorate has informed the
wrestled with balancing the self-interest of their membership and protecting the
Foundation that its application to con
public. On the issue of recovered memory techniques, we believe the public is
tinue as an approved provider of con
losing.
tinuing education for psychologists
On the one hand, so many important things seem to have been accomplished
has met the criteria for full approval.
that we can say "the tide has turned." On the other hand, it seems that we cannot
Full approval for five years was grant
yet step back and sigh with relief. The beliefs that encompass memory-recovery
ed after the Foundation successfully
practices are endemic. They are institutionalized.
completed the two-year preliminary
As just one example, this month we received a copy of a New York State pro
approval period. The Committee for
posed Senate Bill to extend the statute of limitations in civil cases for certain sex
the Approval of Continuing Education
offense cases. Its stated purpose is: ''To recognize that children who are victims
has the responsibility for reviewing
of sexual abuse often suffer from repressed memory syndrome." (Emphasis
applications and requires the applicant
added.) Children who are victims of sexual abuse, physical abuse or neglect may
to address any shortcomings that they
suffer from many things. It does them no service, however, to say they suffer
may observe during the preliminary
from something for which there is no scientific evidence. Discredited memory
approval status. The Foundation is
recovery techniques do not help children.
permitted to use the following state
There is still much work to be done if we are to maintain the gains that have
men~_.on _i~s p~o_!n_ottonal_ material:
been made in understanding the-scientific issues that are at the heart of claims of
"False Memory Syndrome Foundation
repressed memory syndrome and memory-recovery techniques. With each pass
is approved by the American
ing month we get new tools: books, professional statements, legal decisions.
Psychological Association to offer
Tools are useless if they just sit. Each caring person must put those tools to work.
continuing education for psycholo
Our ~hildren deserve nothing less. gists. False Memory Syndrome
Foundation maintains responsibility
for the program."
special thanks A Special Kind of Logic
We extend a very special ''Thank you" to all of the people who help prepare Globe and Mail, September 16,1997
the FMSF Newsletter. Editorial Support. Toby Feld, Alien Feld, Howard Robert Matas
Fishman, Peter Freyd. Research: Merci Federici, Michele Gregg, Anita A British Columbia woman was
Lipton. Notices and Production: Ric Powell. Columnists: Katie Spanuello wrongly accused by an anonymous
and members of the FMSF Scientific Advisory Board. Letters and informa caller of killing a person 34 years ago.
tion: Our Readers. The B.C. Ministry for Children and
Families accepts that the information
r HAVE YOU MADE YOUR PLEDGE?
was incorrect, but they refuse to
Have you made your contribution to the Foundation's annual fundraising remove the woman's name from its
drive? If not, please take a few minutes to think how professionals now recognize registry. They will add a note saying
what false memory syndrome is and how it devastates families. If you are one of
that the report is false.
those families, try to imagine what it would have been like if there had been no one
The logic? The ministry officials
to call. Without your support, affected families, fonner patienls, professionals, and
claim that the file reflects an accurate
the media will have no place to turn. Pleitse be generous. Whatever you are able to
contribute is deeply appreciated. To those who have already returned your pledge record of the anonymous caller's
card, our thanks for helping to ensure that those who need the Foundation's help will report. (FMS News cont page 11)
! continue to receive it.
2 FMS Founctalfon Newsleffer November/997 Vol. 6 No. 10
REPORTED RECOVERED MEMORIES OF CHILD SEXUAL ABUSE
Recommendations for good practice and implications for training,
continuing professional development and research.
Royal College of Psychiatrists'Working Group on R<'porred Recm•ered Memories of Child Setual Abuse: Professor Syd11ey Brondon (Chair),
Dr Janet Boakes, Dr Danya Gfaser, Professor Richard Green. Dr lames MacKeith and Dr Peter Whewell. Approved by Council, '24 June
1997. Embargoed until lst October 1997. Tlze College Psvchiatric Bulletin ( 1997), 21, 663-665. Reprinted with permission.
Recommendations for good practice
The College recognizes the severity and significance of (a) The welfare of the patient is the first concern of the
child sex.ual abuse and the suffering experienced both at the
psychiatrist. Concern for the needs of family members and oth
time of the abuse and in adult life.
ers may also be necessary, within the constraints imposed by
The difference between incestuous fathers and pedophiles the need for confidentiality
is less distinct than was previously thought. Those who sexual (b) In children and adolescents, symptoms and behavior
ly abuse children share many characteristics including verbal patterns may alert the clinician to the possibility of current sex
denial even in the face of clear evidence, recidivism. secrecy, ual abuse, but these are no more than indicators for suspicion.
minimization, rationalization and justification of their actions Previous sexual abuse in the absence of memories of these
among others. These are often maintained even after criminal events cannot be diagnosed through a checklist of symptoms.
conviction. (c) Psychiatrists are advised to avoid engaging in any
Nevertheless, the growth of litigation against a1leged per 'memory recovery techniques' which are based upon the
petrators and therapists and the risk of bringing the profession expectation of past sexual abuse of which the patient has no
into disrepute makes it necessary to alert psychiatrists to the memory. Such 'memory recovery techniques' may include
possibility of 'false memories'. In this context a 'recovered drug-mediated interviews, hypnosis, regression therapies,
memory' is one in which traumatic events have been totally guided imagery, 'body memories', literal dream interpretation
forgotten until 'released' or recovered in therapy or as a result and joumaling. There is no evidence that the use of conscious
of some other trigger or experience. A 'false memory' is one ness-altering techniques, such as drug-mediated interviews or
which is not based on events which have occurred. hypnosis, can reveal or accurately elaborate factual infonna
Memories are constantly forgotten and recovered, but we tion about any past experiences including childhood sexual
are here concerned with the alleged forgetting and recovery of abuse. Techniques of regression therapy including 'age regres
memories of prolonged and repeated child sexual abuse, typi sion' and hypnotic regression are of unproven effectiveness.
cally from childhood into adolescence. Concern about recov (d) Forceful or persuasive interviewing techniques are not
ered ·memories which have no factual basis should be concen- acceptable in psychiatric practice. Doctors should be aware
trated on those cases where patients report having had no mem that patients are susceptible to subtle suggestions and rein
ory whatsoever of abuse which continued over many years. In forcements whether these communications are intended or
the United States concern about such recovered memories led unintended.
to the use of the term False Memory Syndrome which, though (e) The psychiatrist should nonna1ly explore his or her
misleading, has now gained wide usage. doubts with the patient about the accuracy of recovered mem
Memory is a complex field of study which has generated ories of previously totally forgotten sexua1 abuse. This may be
an enonnous literature and a plethora of theories. The evidence particularly important if the patient intends to take action out
shows that memories of events which did not in fact occur may side the therapeutic situation. Memories, however emotionally
develop and be held with total conviction. Such memories intense and significant to the individual, do not necessarily
commonly develop under the influence of individuals or situa reflect actual events.
tions which encourage the development of strong beliefs. They (t) Adult patients reporting previously forgotten abuse
have often been described as arising within therapy, sometimes may wish to confront the alleged abuser. Such action should
involving psychiatrists or other mental health workers, as well not be mandated by the psychiatrist and likewise it is rarely
as psychotherapists. appropriate to discourage or even to forbid the patient from
Although the following recommendations are particularly having contact with the alleged abuser or family members. The
concerned with the use of specific memory recovery tech psychiatrist should help the patient to think through the possi
ble consequences of confrontation with the alleged abuser. In
niques, it is important to emphasize that distortion of memory
these circumstances it is appropriate to encourage the search
may occur in any therapeutic situation. Psychiatrists need to be
for corroboration.
aware of the techniques employed by other members of their
(g) Psychiatrists should resist vigorously any move
team, including semi-autonomous practitioners. Any profes-
towards the compulsory reporting of all allegations or suspi
sionals, including senior psychiatrists, working with cases of cions by adults of sexual abuse during childhood. Mandatory
sexual abuse or recovered memories should have access to reporting is entirely appropriate where children or adolescents
expert advice and the opportunity for regular peer supervision. spontaneously report current or recent abuse. Hints at the pos-
FMS Foundation Newsletter November 1997 Vol. 6 No. ID 3
sibility or suspicion of current sexual abuse. There seems little doubt that some their beliefs and practices in the light of
abuse always need to be carefully evalu~ cases of multiple personality are iatron new evidence and recognition of the lim
ated and investigated. genically determined and psychiatrists itations of their own knowledge and
(h) It may be legitimate not to ques~ should be careful to ensure that they do expertise.
tion the validity of a recovered memory not directly encourage patients to devel~
while it remains within the privacy of the op 'a1ters' in whom they may invest Continuing professional development
consulting room, though there is a risk in aspects of their personality, fantasies or
colluding with, and creating, a life histo current problems. Any spontaneous pre Psychiatrists may not have made
ry based upon a false belief. Action taken sentation of dissociative identity disor themselves aware of the developments in
outside the consulting room, including der should be sympathetically consid~ the understanding of memory, sugges
revealing the accusations to any third ered but should not be made the subject tion or of child sexual abuse and its pos
party, must depend upon circumstances of undue attention, nor should the patient sible consequences for adult psychother
and upon the wishes of the patient. be encouraged to develop further 'multi apy. Continuing professional develop
ples'. Psychiatrists should be particular ment should therefore ensure that,
(i) Once the accusation is taken out~ ly aware of the unreliability of memories through courses and authoritative
side the consulting room, especia11y
reported in these cases. Since there is no reviews, psychiatrists are kept up to date
if any question of confrontation or
settled view on the va1idity of these diag on these topics.
public accusation arises, there can
nostic concepts there is a case for the It is appropriate that all psychiatrists
rarely be any justification for refusal
preparation of a consensus statement should have a general understanding of
to allow a member of the therapeutic
which would need to be based upon a child abuse and its consequences. The
team to meet family members.
substantial literature review. skills required for the assessment or ther
apy of the abused and their families
(ii) Where the a1leged abuser is still
Implications for training and require additional training and experi
in touch with chi1dren at risk, serious
research ence. All psychiatrists should be open to
consideration must be given to
new knowledge and ready to modify
informing the appropriate social ser
Postgraduate training. their beliefs and practices accordingly.
vice department. This must be done if
Psychiatry as a profession should know
there are reasonable grounds for
Postgraduate psychiatric trainees should the limits of its knowledge and experi
believing that the alleged assault or
have: ence.
assaults actuaUy mok place and that
• specific and detailed instruction in
other children may now be at risk. If
the psychological and neurobiological Research
the case is reported by others the psy
foundations of memory, including a cri
chiatrist should also be prepared to
tique of historical and current theories. Further research is required into the
state clearly if he or she believes that
nature and va1idity of such concepts as
the grounds for the accusation are
• a good understanding of the clini repression, dissociation and the psycho
inadequate or unreasonable.
cal and epidemiological aspects of child neuro-physiology of traumatic memories
(iii) The patient may wish to seek sexual abuse and child protection proce of all kinds. More precise definition of
legal advice possibly with a view to dures. They should know the associa child sexual abuse, accurate recording of
the prosecution of or litigation tions between childhood sexual abuse its type and duration, of the relationship
against the alleged abuser. It is and adult psychopathology and their between the victim and the perpetrator
unwise to encourage or discourage empirical validity. and the age of commencement and dura~
legal action and inappropriate to tion of the abuse are required for further
make any decision about this a condi • instruction on the dangers of sug studies. These studies need to examine
tion of continuing treatment. The gestion and suggestibility, and a keen the relationship between different vari
patient should always be encouraged awareness that opinions and prejudices eties and severities of child sexual abuse
to consider the possible conse in the therapist may have a profound and later adult psychopathology and to
quences of such action. effect upon their patients. They should consider the influence of early experi
also understand how to minimize possi ence in genera], including the effects of
ble adverse effects of such influences. physical and emotional abuse.
(i) Although there are doubts about
the validity of diagnoses of dissociated
• an awareness of the need to obtain The College Psychiatric Bulletin (1997),
identity disorder (formerly multiple per
collateral histories to amplify the clinical 21, 663-665
sonality disorder) it is asserted by some
history and examination.
that this condition is frequently associat
ed with a history of childhood sexual
• an awareness of the need to review
4 FMS Foundation Newsletter November1997 Vol. 6 No. 10
----~~~~~~~~~-
..
leagues did not jump to these conclu who described histories of abuse on
sions. Instead, they decided to re~con~ interviews that were not recorded in
SCIENC
tact the 26 subjects who had given their initial evaluations, the investiga~
This series is not intended to ''forgive" or exonerate
interview information discrepant with tors again found that deliberate nondis·
the morally repugnant phenomenon of child sexual
abuse in any way, but simply to examine the method their known histories. They managed closure, rather than repression, was
ology of scientific studies claiming that child sexual to track down I 1 of the 26 for a second responsible for the discrepancies. Two
abuse causes adult psychiatric disorders.
interview, which they called the "clari~ of the subjects revealed that at the time
Can People Repress Memories? fication" interview. In the clarification of their earlier evaluations, they were
Evidence of Prospective Studies interview, they took care to establish too embarrassed to reveal what they
Part 11 rapport, and then confronted the sub~ had suffered. The third had refused to
jects with the known discrepancies in disclose his abuse because at the time
'Cuz I Wanted to Forget
their responses. he did not trust anybody.
Harrison Pope, Jr., M.D.
On the clarification interview, it In summary, then, the investigators
In a previous column, we have appears, all 11 of the subjects admitted documented many reasons why sub
seen that prospective studies of trauma that they had always remembered their jects might not reveal a history of
victims consistently fail to show evi~ abuse, but had simply chosen not to childhood sexual or physical abuse on
dence of repression. But there remain disclose the information to the inter follow·up interviews. These include
four other prospective studies, to our viewer, either during the first interview "embarrassment, a wish to protect par~
knowledge, which have looked specifi~ (for the 8 subjects who denied their ents, a sense of having deserved the
cally at memories of childhood sexual previously recorded history of abuse) abuse, a conscious wish to forget the
abuse. If repression can be found any~ or on their initial evaluation (for the 3 past, and a lack of rapport with the
where, perhaps these studies are the subjects who revealed new information interviewer." In no instance, however,
place to look. about abuse not recorded on their ini was any subject found to have dis~
The first such study was published tial evaluation). When asked to explain played repression.
in 1990 by Donna Della Femina and the reasons that they had chosen to What is the lesson of this? It is that
her colleagues [I]. These investigators withhold the information, the subjects people will sometimes choose not to
interviewed 69 young adults in gave a variety of responses. For exam disclose information, especially sensi~
Connecticut as part of a follow-up ple, one girl, who was known to have tive and embarrassing information like
study of formerly incarcerated youths. been sexually abused by her father, and a history of childhood sexual abuse, on
The investigators possessed detailed whose mother had attempted to drown interviews. If this happens, it would be
infonnation, obtained in evaluations her as a child, had minimized any naive for us to jump to the conclusion
may years earlier, about physical and abuse at all on the initial interview. that they have repressed their memo
sexual abuse which these subjects had When asked on the clarification inter~ ries. Instead, as illustrated so well by
experienced as children. Upon inter view why she did not previously dis~ Femina and her colleagues, it is critical
viewing these subjects as young adults, close the information, she burst into to ask any non-disclosing subjects
the investigators found that 26, or 38% tears and said, "I didn't say it 'cuz I directly about their known trauma his~
of them, reported childhood histories wanted to forget. I wanted it to be pri tory, to see whether they will then
which were inconsistent with the infor~ vate. I only cry when I think about it." acknowledge that they remember it.
mation gathered on their earlier evalu~ Similarly, a boy who had been repeat~ The same considerations apply to a
ations. Specifically, 18 of these 26 sub~ edly beaten by his psychotic father second recent study conducted in
jects were known to have been severe~ denied abuse on his initial interview London, where investigators inter~
ly abused in childhood, yet they denied but then admitted to it on the clarifica~ viewed 20 women who had been
or minimized any history of abuse tion interview. When asked why, he removed from their homes as children
when they were interviewed. Had said, "My father is doing well now. If I by social service agencies [2]. These
those 18 individuals repressed the told now, I think he would kill him women were known to have been sex
memory of their trauma? And had the self." Another subject, who had also ually abused, both from their own
other 8 subjects, who suddenly initially failed to disclose a known his reports as children and by the report of
revealed new information about child tory of physical abuse, explained on an adult who had been familiar with
hood abuse, recovered old memories the clarification interview that he had the household at the time. The follow
which had been repressed at the time simply not liked the original interview up interviews were conducted when
of their initial evaluations? er. the subjects were 18~24 years old. On
Fortunately, Femina and her col~ Finally, looking at the 3 subjects these interviews, three (15%) of the 20
FMS Foundation Newsletter November 1997 Vol. 6 No. 10 5
HYPNOSIS
women failed to give a "yes" answered This leaves us with only one
to the question, "were you sexually remaining prospective study of victims "In a sense, however, hypnosis has
abused as a child?" However, in this of childhood sexual abuse - our last been unfairly singled-out by the media
case, by the author's admission, none chance, in effect to find an acceptable and the courts on this issue. Of the
of the subjects was directly asked demonstration of repression in the sci hundreds of expressive therapeutic
about her known sexual abuse history, entific literature. But this ·study, per techniques now extant, hypnosis is the
and no "clarification interviews" were formed by Linda Meyer Williams, is only one for which there are substan
conducted later. Therefore, when it is perhaps the most widely quoted study tial data on memory and its accuracy.
considered that the rate of negative of them all. If there is any study which For various historical reasons, no other
responses in this study was well below provides legitimate evidence of repres therapy technique has been so scrupu
the 38% rate in the Femina study sion, many experts would say, the lously examined as to its effect on
described above, it again seems that Williams study would be the one. memory. Because of this, hypnosis has
these findings can be easily explained Therefore, the Williams study deserves become a kind of whipping boy for the
on the basis of non-disclosure alone, a particularly careful analysis in a col sins of psychotherapy in general. The
without any need to postulate repres umn an to itself. media and the courts focus on the
sion. memory-distorting effects of hypnosis
References
One other recent small study fol
precisely because hypnosis researchers
lowed up 22 children who had report L Femina, D.D., Yeager, C.A., Lewis, 0.0.: Child
are the ones who have most rigorously
abuse: adolescenl records vs. adu\1 recall. Child
edly been abused in one of three day
Abuse Negl145: 227-231, 1990. documented how plastic memory is in
care centers [3]. Again, three of the
treatment. They have thoroughly docu
children were said to display complete 2. BPgley, C. Child sexual abwe and me mal health in
mented the role of expectation, sugges
adolescenrs and adults: British and Ca11fldian per
amnesia for their abuse when inter
speCiives. Alde~hot, UK: Avebury, 1995. tion, imagination, and fantasy as co
viewed 5 to lO years later. However, in
detenninants of what people report
this case there is a different problem: 3. Burgess, A.W., Hartman, C.R., Baker, T. Memory
remembering, in treatment and outside
presenlalions of childhood se:'tua! abuse. J
the children were reported to be a
Psychosocial Nursing 33:9·15, 1995. of it. It is not that these factors are
median of 2 l/2 years old at the time of
absent in other expressive therapies, it
the original abuse. Among the exam This column appears tlS a chapter in the book, is just that if one wants to find out what
ples provided in the study, one child Psychology Astray: Fallacies jn Studies of
science has to say about how memories
was in day care between the ages of 6 "Repressed Memory" and Childhood Trauma.
can be distorted in therapy, one is
by Harrison G. Pope, Jr. M.D., Upton Books,
weeks and 12 months of age; another
!996. Copies of this book are now available going to encounter hypnosis, and not
was 21 months old. As we have men
and may be obtained by writing to Social Issues much of anything else. Hypnosis
tioned in previous columns, there is a Resources Series at 1100 Holland Drive, Boca
research has delivered an important
large literature showing that children Ratan, Florida, 33427, or by calling 1 ·800-
and disturbing message to society at
232-7477.
remember almost nothing from before
large: passionately believed-in recol
the age of three, much less at 12 or 21
lections about the past are not always
months. Thus the findings in this study "It's not that I don't believe the gov
what they appear to be. This message
appear readily explainable on the basis ernment would try to hide dead aliens;
is so profoundly upsetting to cherished
of childhood amnesia alone, again it's that I don't think the government
conventional notions of memory that
would succeed, since every time the
without any need to postulate repres
courts, and some elements of the men
government tries to do anything secret
sion. In addition, there remains the
ly, as in the lean-contra arms deal, it tal health community, yearn to "kill the
possibility of deliberate non-disclosure
winds up displaying all the finesse and messenger." The issue is much more
in this study as well, but the issue is not
stealth of an exploding cigar at a state complex than this. The problem is not
mentioned in the paper. funeral. If there really were dead just the nature of hypnosis per se, but
In summary, these three follow-up aliens, I figure, there also would be the nature of memory as it emerges in
studies of victims of childhood sexual daily leaks about it from High-level
the context of any psychotherapy."
and physical abuse all fail to produce Officials, and huge arguments among
(page 516)
any evidence of repression. As Femina influential congresspersons over Michael Nash and R Nadon (1997)
and her colleagues so clearly demon whose district the multimillion-dollar Hypnosis. In D. Faigman, D. Kaye, M.
Federal Dead Alien Storage Facility
strated in their "clarifications inter Saks, & J. Sanders (Eds.), Modem scien
would be located in."
views," cases of seeming repression on tific evidence: the law and science of
page 40 Dave Barry is not making
initial interview regularly turn out to expert testimony. West Publishing Co., St.
this up. Fawcett Columbine,
represent deliberate non-disclosure. Paul, MN Social and Behavioral Sciences
New York, 1994
6 FMS Foundation Newsletter November 1997 Vol. 6 No. ID
was scientifically valid. The court emphasized the need for
l E G
reliable evidence, entrusting to the gatekeeper the job of
admitting only what is reliable and relevant.
In numerous amicus curiae (friend-of-the-court) briefs,
national organizations of scientists, trial lawyers, chemical
FMSF Staff
company workers, tort refonners and big corporations as
well as the U.S. Justice Department say that the court's deci
U.S. Supreme Court to Revisit its Ground-Breaking
sion in the case will detennine how civil cases are tried.
Ruling in Daubert Ill
Tort refonners argue trial judges must be able to scrutinize
General Electric Co. v. Joiner, No. 96-188
scientific evidence to keep out of courtrooms ''junk science"
(U.S. cert. granted March 17, 1997).
that can unduly sway juries and distort verdicts.
In a key post-Daubert case on the admissibility of dis
Many of the amicus curiae briefs filed raise issues
puted scientific evidence, the U .S. Supreme Court will
directly applicable to the evidentiary issues presented by
revisit its 1993 decision. The issue currently before the
"repressed memory" cases. For example, in a brief submit
court is what standard of review appellate courts should ted by Bert Black (who also submitted a brief to court in the
apply to trial judges' decisions on the admissibility of sci
Daubert case), it is argued that the Eleventh Circuit's deci
entific evidence. It is expected that the court will also once sion threatens the continued effectiveness of Daubert. Black
again address the issue of ·~unk science." Oral arguments writes, "(t]he Eleventh Circuit compounded its erroneous
were heard October 14th.
standard of review by seriously misinterpreting and misap
The case, which has drawn widespread attention,
plying Daubert's core holding that expert scientific testimo
involves an electrician who claims that on-the-job exposure ny must derive from valid scientific reasoning. Because of
to PCBs (polychlorinated biphenyls) caused early onset of
its one-way strict scrutiny standard, the court was too quick
lung cancer. The trial court 121 found there was insufficient to review the expert testimony, and when it 'looked hard' it
evidence of exposure and that the expert testimony did not looked in the wrong place. The Appellate Court essentially
establish a scientifically valid link between PCBs and lung ignored the lack of connective reasoning and focused
cancer. The trial court, therefore, granted defendants sum almost exclusively on the experts' qualifications and their
mary judgment. The Eleventh Circuit [3J reversed 2-1, hold bald assertions that they had used recognized and accepted
ing the trial court had "improperly assessed" the admissibil procedures and methodologies. Indeed, by accepting such
ity of the scientific testimony. The majority stated a trial statements, the Eleventh Circuit allowed the experts to blur
court should be particularly reluctant to bar evidence if the the important distinction between diagnosing what disease a
result is summary judgment. patient has and what caused the disease. In some cases diag
Several analysts have said that the Eleventh Circuit rul nosis does identify cause; for example, a diagnosis that a
ing giving appellate courts broad power to re-examine child has the measles is also a detennination that his or her
admissibility decisions runs contrary to Daubert, which had symptoms were caused by the measles virus. For a chronic
given considerable gatekeeping powers to trial judges.l41 disease like lung cancer, however, diagnosis does not estab
There has been some divergence in the V .S. circuit lish cause. If it did, the expert testimony in this case would
courts on the question of review by appellate courts. Most not be at issue."
·of the circuits considering the issue so far have adopted an The U.S. Supreme Court's decision in Joiner promises
"abuse of discretion" standard, though the language has to detennine a broad range of cases in which causation is a
tended to vary. Three circuits (5th, 9th and lOth) have pivotal issue and where courts seek, under the "gatekeeper"
adopted a traditional abuse of discretion analysis. Three oth role, to admit well-grounded scientific evidence while
ers have embellished that approach somewhat, upholding screening out "junk" science.
the trial court's decision unless it was "manifestly erro
[I] Daubea y Merrel! Dow PharmaceUJjcals, Inc., 509 U.S. 579 (1993).
neous" (6th and 7th) or constituted "a clear abuse of discre
[2]Jojner v, General Elec1ric C<!., 864 F.Supp. 13 IQ (N.D. Ga., 1994).
tion" (8th).
[3]Joiner v General Electric Co., 78 F.3d 524 (IIth Cir. . !996).
In granting certiorari (accepting the case for review),
[4] The case has drawn strong words from many legal analysts. For example, for·
the Supreme Court said it wanted to look at how appellate mer Attorney General Dick Thomburgh said the Eleventh Circuit ruling "only
courts have examined decisions trial courts have made makes it more difficult to keep 'junk science' out of the couaroom ...T he Supreme
Coua must decide whether to reaffirm its confidence in the ability of trial coua
under its 1993 decision which instructed federal trial courts
judges to differentiate between real and 'junk' sdence." See, Thornburgh, D.
to play a "gatekeeper" role in admitting evidence. Under (Sept. 26, 1997) "Supreme Court should confirm trial judges' authority to review
Daubert, trial judges were to examine the reasoning or scientific evidence," Legal Opinion Leuer, Washington Legal Foundation, Vol. 7,
No. 26.
methodology underlying testimony to detennine whether it Q
FMS Foundation NewsleHer November1997 Vol. 6 No. 10 7
Malpractice Suit Against Therapists Set to go to Trial; she suffered an injury during the years she was in therapy
U.S. District Court Rejects Summary Judgment because of the distress she admits she felt at the time. Lujan
Motion states that during therapy she developed intensely physical
Lujan v Mansmann. Neuhausel and Genesis Associates and distressing symptoms including intense headaches,
1997 U .S. Dist. LEX IS 14987, Sept. 24, 1997. recurrent nightmares, flashbacks, and deterioration into a
catatonic state as a result of the alleged implantation of false
The U .S. District Court recently denied a defense
memories. However, Lujan argues that, although she suf
motion for summary judgment in a malpractice case
fered these symptoms, she had no reason to know that she
brought by Brook Lujan against her former psychologist
had suffered an injury; she thought she was receiving help
Patricia Mansmann, social worker Patricia Neuhausel, and
ful therapy. !Sl
Genesis Associates. Ill Defendants argues that the case was
Defendants also argue that Lujan was on notice in 1993
filed too late. The ruling is the second 121 issued in this case
because, by Lujan's own admission, she had begun toques
by Judge John R. Padova and represents only one of sever
tion whether her treatment at Genesis was not "so good."
al malpractice lawsuits pending in District Court against the
The court held that it could not conclude that there are no
defendants.
genuine issues of material fact as to the state of Plaintiff's
Lujan had sought treatment for emotional problems,
knowledge and whether she had sufficient critical facts to
including bulimia. The counseling, her Complaint states,
put her on notice that she could sue.
encouraged her "to believe in certain memories, including
The court dismissed the breach of contract claim in the
memories of satanic abuse, satanic murders, and deviant
Amended Complaint, noting that the damages sought by
sexual assaults" and "convinced her to believe she was
Lujan are the same damages she seeks for her torts claims.
being stalked by a cult and that her life was in danger." In
She does not seek money to pay for psychotherapy to com
1992, defendants terminated Lujan's treatment, until, as
plete the work that was undertaken by the contract or to cor
they explained, the danger from the cult subsided. It was not
rect the damage that Defendants' treatment has allegedly
until December 1995, when Lujan received information
done her. The court held that Lujan's punitive damages
concerning her parents' third-party lawsuit 131 against her
claim would go forward. Genuine issues of material fact as
therapists, that Lujan says she began to question the veraci
to whether defendants' behavior could constitute outrageous
ty of her memories, and the appropriateness of the treatment
she received. conduct were raised by plaintiff's submissions.
As an example, the court quoted from Brook Lujan's
Lujan's Complaint was filed July 17, 1996, approxi
expert who described her termination by the defendants,
mately 4 years after termination of her therapy.
"the conduct of psychotherapy was perhaps at its most
Pennsylvania's two-year statute of limitations allows a
bizarre at the time of Brook's abrupt termination from
plaintiff two years within which to commence an action for
Genesis, which took place at a Burger King Restaurant. This
"injuries to the person." 41 Pa Cons. Stat. Ann.@5524(2).
termination violated the standard of care. Brook was undu
However, the "discovery rule" may apply where, regardless
ly influenced to sign a paper agreeing to her termination
of the exercise of all reasonable diligence. the complainant
without even being referred to another therapist. Brook wa~
is unaware that she has suffered an injury, or unaware of its
pressured to leave so as to protect herself and the Genesis
cause. or both, during the limitations period. Following a
therapist from unproven Satanic cult threats. Brook was per
det~iled review of the recent Pennsylvania Supreme Court
suaded to change her name and her physical appearance,
dec1sion [4 ] regarding application of the discovery rule, the
even to the point of having plastic surgery. Brook was per
U.S. District Court concluded that the nature of the injury
could render Lujan unable to distinguish between true and suaded to move far away, and essentially disavow any
knowledge of her previous life or identity. With Brook's
false memories. "Defendants' position would require me to
dependence on the therapists firmly established and in a
~onclude as a matter of law that a person in Plaintiff's posi
hysterical, disorienting, and paranoia and panic-producing
~lon would regard her distressing symptoms as being
Imposed by an injury caused by another party's wrongful atmosphere, Brook complied with these demands. Brook's
college education also had to be abruptly terminated by this
conduct rather than being part of her underlying condition
move."
and legitimate therapy. This I refuse to do on this
record ... Given the nature of Plaintiff's claim of implanted !11 ~jan's ~au~e~ of action w_ere negligence, breach of contract, gross negligence,
false memories, I find that some uncertainty and inconsis mtenuonal mfhct10n of emollonal distress, negligent infliction of emotional dis
tre~s. breach of confidentiality, and conduct justifying punitive damages. The
tency with respect to the veracity of the memories does not clmms of fraudulent misrepresentation and violation of the Racketeer Influenced
invalidate her claim as a matter of law." and Conupt Organization Act were dropped from the Amended Complaint.
The District Court specifically rejected defendants' !2] Lujan y, Mansmann, et a!, 956 F. Supp. 1218 (E.D. Pa., 1997). See, FMSF
News/e/ter, May 1997.
arguments that Lujan was on notice and should have known
[3] Tuman v Genesis Assoc .• 935 F. Supp. 1375 (E.D. Pa., 1996).
8 FMS Foundation Newslett~e~riNY-o~v~e~m~>b~e~rUJ99ml~~~ol~.6 ;,-;;N~o-.1 ~0;--------~ ------------------
[4J Dill!ymp!e v Brown, 1997 WL 499945 (Pa., Aug. 25, 1997). See, FMSF aged to develop "alter personalities" and to display behav
NI?Wslmer, Oct. 1997.
iors consistent with a supposed MPD. Braun, the
[5J In this regard, the Court quotes from a. supplemental report submitted by
Complaints state, used suggestive and coercive techniques
Lujan's expert Dr. Linda Jaync Du brow, "When a person has an experience involv
including exposure to guns and handcuffs in order to
ing influence thot results in the inducement and reinforcement of distorted memo
ries, the individual has no oven cause to question these memories or to perceive encourage the children to "remember" episodes of abuse as
them as any different from real memories. The person assumes that the person or
part of a supposed transgenerational, organized satanic cult.
people influencing them are well-intentioned and sincere, have their best interests
at heart, and that. therefore, these memories are ·real."' The children would receive stickers for telling "yucky
secrets." The more yucky secrets they were able to tell, the
more stickers they got for that day. 121
Malpractice Suit Against Dr. Bennett Braun Scheduled
The three years of treatment cost over $3 million.
for Trial in November
According to the Complaint, as a result of treatment by
Burgus v. Braun, Circuit Court, Cook County, Illinois,
defendants Braun and Poznanski and during their hospital
Case Nos. 9IL8493/91L8493 '''
ization at Rush, the minor children became increasingly
A malpractice suit challenging "repressed memory" mentally ill. Pat's previously close relationship with her
therapy that was filed six years ago is scheduled for trial husband and parents was destroyed. She came to falsely
November 3, 1997 in Cook County Circuit Court. The trial, believe that she had been abused and that she had in turn
which is expected to last 6-14 weeks, will simultaneously abused her own children. According to the Complaint,
hear three suits brought by Patricia Burgus, her husband, Braun failed to advise that the diagnosis of MPD was con
and two minor children against Dr. Bennett Braun, Rush troversial, that MPD can be caused by improper therapy,
Presbyterian Hospital and Dr. Elva Poznanski. and that the mental health community is divided as to
In 1986, Patricia Burgus was one of the first patients on whether it exists or not. Instead he told Pat that the "memo
the dissociative disorders unit founded by Bennett Braun, ries" being uncovered represented real memories of actual
M.D. at Rush-Presbyterian St. Luke's Medical Center, historical events and that she was the only person question
Chicago. She originally sought treatment for depression fol ing the validity of memories of transgenerational satanic
lowing the difficult birth of her second son. She was under cults. The Burgus family reasonably relied on those repre
Braun's care and supervision at Rush until 1992. sentations.
During that period, Braun used tapes of interviews with Defendant Rush-Presbyterian is charged with failure to
Pat ro reach residents, other doctors and the media about adequately supervise the activities of Dr. Braun and failure
multiple personality disorder (MPD). Under high doses of to perform adequate inspections of the conditions existing
medication, and receiving hypnotism, Pat now says reality on the unit which hospitalized Burgus.
and fantasy "blended together." Pat became convinced that jl] Information taken from Complaint filed Nov. 16, 1993: Second Amended
Complaint, No. 93 L 14050, filed Aug. 8, 1994: Third Amended Complaint. No.
she had over 300 alternate personalities as a result of
91 L S493. liled Nov. 2, 1994. See also PBS Frontline, (11/1/95) ''The Search for
extended and repeated traumatic childhood abuse including Satan," producer Ofra Bike!.
participation in ritual murders, cannibalism, Satan worship, !2] For example, Dr. Braun related one of John's stories in coun testimony a~ proof
and torture by family members. Pat explained to Frontline, of satanic activities, explaining that a 5-year-old boy told a story of sticking a knife
in a man's abdomen and how the intestines popped out and smelled terrible. Braun
"I was told that, until I hit bottom, until I dug all of this stuff
stJggested that this story could only come from direct experience. It should be
out, I would never get better and I would never have a noted that Pat Burgus says Braun dismissed her query that the story could have
chance for any kind of a future for my children." come from a scene in a Star Wars movie that John had seen. In ''The Empire
Strikes Back," after Luke Skywalker cuts open the beast he was riding, all the guts
Pat Burgus's two young sons, Mikey and John, were
spill out and Skywalker comments on how terrible it smells.
hospitalized at Rush for almost three years under Braun's
care. Pat explained to Frontline that she and her husband
were told that their children needed to be hospitalized
Canadian Courts Strike Down as Unconstitutional a
because the boys may be genetically predisposed to MPD.
Recent Bill to Limit Access to Accuser's Records lll
Because Rush is a teaching hospital, if the disorder devel
oped, they were told, it could be caught and treated. John On May 12, 1997, the Canadian Parliament passed Bill
was admitted at age 5 and Mikey was admitted to the chil C-46 which sharply restricted the ability of criminal defense
dren's psychiatric ward on an emergency basis when he was lawyers to obtain third-party records such as counseling or
4 years old. Braun reportedly told the family that unless therapy histories.
Mikey was in the hospital over Halloween, he would be in The constitutionality of Bill C-46 has been called into
mortal danger. During the years of hospitalizations, the two question by recent Canadian Appellate decisions. These
young boys received psychotherapy from Braun and from courts have considered the extent to which Bill C-46
another defendant, Dr. Elva Poznanski. They were encour- impairs the ability of the accused to make full answer and
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FMS Foundation Newslelter Novemberl997 Vol. 6 No. 10 9
records. Belzil noted that none of the justices of the
defense and thus deprives him of his constitutional right to
a fair trial under the Canadian Charter of Rights and O'Connor court contemplated that a judge would make a
relevancy decision in a vacuum without seeing the records.
Freedoms.
In 1996 prior to enactment of Bill C-4~, the Supreme Bill C-46, he wrote, forces a trial judge, without having
Court of Canada [2] outlined a procedure under which pro seen the documents, to engage in a balancing of interests,
duction and admissibility of a witness's records may be
a situation specifically rejected by the O'Connor court. In
granted. Following an O'Connor application, a trial judge
so doing, Bill C-46 blurs the distinction between produc
is to examine the records in question to determine their rel
tion and admissibility.
evancy. If he or she concludes that a record is relevant, the
0
judge then proceeds to balance the competing interests,
Regina v. Lee, Ontario Court of Justice (General
that is, balancing a witness's right to privacy with the right
Division), [1997] O,J. No. 3796, released Sept 24, 1997
of an accused to access information necessary for mean
ingful and full defense. The trial judge is to examine the An Ontario Court judge struck down Bill C-46 as
records to determine whether and to what extent they unconstitutional. The ruling by Madam Justice Sandra
should be produced to the accused. Chapnik came in response to a bid by a Toronto doctor to
The O'Connor court held that when the information is obtain the medical, therapeutic and psychiatric records of
in the hands of a third party, the party seeking the records a fanner patient whose allegations led to his facing two
bears an initial burden of establishing "likely relevance." charges of sexual assault. After examining the records,
The majority made it clear that the likely relevance test Justice Chapnick ruled that some were likely relevant.
was a low threshold, because at that point, the accused has Justice Chapnik concluded the Crown had failed to
not seen the records in question, and to a significant extent show that the new restrictions in Bill C-46 were a reason
is forced to speculate as to what records exist and what able limit on the fair trial rights of an accused, adding: "In
may or may not be contained in them. coming to this conclusion, I have considered all the rights
[I] Copies of both decisions are available from the FMSF Brief Bank. in question, including the privacy and equality rights of
(21 Regina y O'Cnnnor, [1995]4 S.C.R. 411. 130 D.L.R. (4th) 235, [19961 103 complainants and witnesses." Describing the charter viola
C.C.C. (3d) I. The majority in O'Connor made it clear that the right of the tions as "serious and pervasive," she not only struck down
accused to make full answer and defense is elttremely imponant, "[a)s a result.
information in the possession of the Crown which is clearly relevant and impor the new law, but ordered the production of the records
tam to the ability of the accu5ed to raise a defense must be disclosed to the requested by the defense to proceed according to the older
accused, regardless of any potential claim of privilege that might arise ... Unle5s
procedures laid down by O'Connor.
the Crown can prove that the records in question are clearly irrelevant or subject
to some form of public interest privilege, the therapeutic records must be dis Following this ruling, the accuser indicated she would
closed to the defense." drop the complaint if the defense gained access to her med
0 ical records. Faced with the loss of its key witness, the
Regina v. Mills, Court of Queen's Bench of Alberta, Crown withdrew the charges and requested an acquittal.
Edmonton, [1997] A.J. No. 891, dated Sept. 18, 1997. The acquittal was granted early in October.
Justice Chapnik's decision binds the lower courts in
An Alberta court judge held that the provisions of Bill
Ontario and will be persuasive among other general divi
C-46 breach the accused's rights under section 7 and ll(d)
sion judges if no conflicting rulings are made.
of the Canadian Charter of Rights and Freedoms. In a 37-
page ruling, Justice Paul Belzil of Court of Queen's Bench, 0
Alberta ruled Bill C~46 infringes on the rights of accused
persons by overly restricting their access to complainants'
"Confirmation bias should be a matter of great interest and
records. The judge did not rule on the law's constitutional
concern to lawyers and judges. For example, lie-detector
ity under section I of the Canadian Charter.
(polygraph) examiners may start with a hypothesis that they
The ruling came in a case of a man charged with sex "confirm" by asking just the right questions. Or a mental
ual assault of an 11-year-old-girl and followed defense health professional investigating child abuse may too readi
application for production of the accuser's therapeutic ly (aJbeit unwittingly) collaborate with the presumed victim
to create memories of abuse that never occurred. The easily
records. After a thorough discussion of the O'Connor deci
made diagnosis of child abuse can be notoriously difficult to
sion, Justice Belzil said the new federal law sacrifices the
falsify, particularly when the victim is an adult and the abuse
balance of rights called for by the Supreme Court. It favors
occurred early in childhood. This has led to severaJ spectac
the privacy rights of accusers over the accused's rights to ular miscarriages of justice." page 45
a fair trial and "tilts that balance and creates a legislative
Foster, K. R. and Huber, P. 1997. Judging science: scientific
regime which is presumptive against disclosure" of such knowledge and the federal courts. Cambridge; The MIT Press.
10 FMS Foundation Newsle"er November1997 VOl. 6 No. 10
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