False Memory Syndrome Foundation Vol 07 No 01 1998 jan

20 Pages·1998·0.93 MB·English

F A L S E MEMORY SYNDROME FOUNDATION NEWSLETTER
Dear Friends, in New Zealand; the acquittal in British Columbia for
Michael Kliman in his third trial for the same recovered
We begin 1998 with "thank you." Thank you to all the
repressed memory accusations; the closing of Rush
volunteers who opened their homes and hearts to talk to new
Presbyterian Dissociative Disorders Unit; the "60 Minutes"
family members. Thank you to the parent who attended a
program about Nadean Cool; and the San Jose Mercury
"confrontation" with a newly accused father and totally
changed its direction by asking questions about the Royal Ne~s investigative report on the handling of complaints
agamst therapists in California.
College of Psychiatrists' recommendations. Thank you to
The beginning of 1998 finds families on a wide contin
all, professionals and families, who have taken the time to
uum of experience with the FMS problem. At one end of the
write a letter, make a call, or find some way to educate oth~
continuum we have newly accused families. At the other
ers about this issue. Thank you to the memory researchers
end, we have families who have resolved the problems.
who have continued to help us understand more about our
Phone calls to the Foundation are a barometer of concerns
memories. Thank you to the journalists who were thorough
of those dealing with false accusations based on claims of
in the study of complex issues of memory and who have had
recovered repressed memory. Here are a few calls that Toby
the courage to speak honestly about what they have learned.
has had in the past week:
____ ..Jhank:·you to the Royal College of Psychiatrists for the clear
We heard from a family who recently wrote to the
recommendatiiJhs. Thank you tb the Missouri Psychiatric
newsletter to tell of their decision to make a last-ditch effort
Association for compassion and professionalism in intro
at reconciliation. They had written letters to their two accus
ducing an updated set of guidelines on recovery of memory
ing daughters saying that either they join them in a recon
to the American Psychiatric Association. Thank you to our
ciliation effort or the parents would go on with their lives
Advisory Board for the steadfast support and good advice.
without them. The call was to let us know that a few weeks
Thank you to all whose generosity has made it possible for
later they received replies from both daughters, eventually
the Foundation to continue its work. And thank you to the
resulting in a retraction from one and a returning to the fam
generous donor for providing the funding that will enable us
ily from the other.
to have a meeting with our Scientific and Professional
A call from another parent was very different. After no
Advisory Board this spring to discuss the future of the
contact for several years from his accusing daughter, a
Foundation. Together, we have made a difference in peo
father said he received a phone call asking him to meet her.
ple's lives, in understanding the science of memory and in
He was very excited about the possibility of reuniting and
improving psychiatric practice.
when he expressed this at the meeting the daughter said,
For the past several years we have started the new year
"I'm here to talk about incest. Until you admit what you did
with a summary of the significant events of the past year. In
1997 so much happened, however, that we do not have the ,---------;c-:;-o-c----------~
space to do that. This year we have limited our summary to In this ·Issue. ..
the appellate-level decisions that are setting the legal direc
Alien Feld ..........................................................................4
tion for claims of recovered repressed memories and to an
Paul S/mpson .................................................................... 5
insightful article by retractor Beth Rutherford. Make a Difference........................................................ 6,
In future issues we will catch up with the details of the Legal Corner .................................................................... 7
many things that have happened just since the last newslet Book Reviews (Ralph Slovenko. Loran f!ankrontz) .... 12
ter. Some of these are: the overturning of the Doggett con Belh Rutherford .............................................................. •13
viction in Wenatchee; the scandal that has raised new ques From Our Readers .......................................................... 16
tions about the conviction of Peter Ellis in the day care case Bulletin Board ................................................................ 18
340 I Market Street. Suite 130. Philadelphia, PA 19104-33 15. (215) 38 7-1865. Fax [phone]
and say you're sorry, we can't have a relationship." The \ REMINDEil
father would not admit to something he had not done and
l'.und.1 !1-.:yd
there was no reconciliation.
Does the FMS Foundation say that all "recovered mem
That same day a call came from another father who had
just received a letter from his daughter who had accused ories" are false? The Foundation has said that some m em~
ories are true, some are a mixture of fact and fantasy and
him over six years ago and who had cut off an contact with
some are false-whether those memories seem to be con
the family. He felt that the letter was very positive and
tinuous· or seem to be remembered after a time of being for
responded that he would like to get together with her. We
gotten. Although this position has been published many
discussed some possible outcomes from such a meeting,
including behaviors he might expect from his daughter. times, we still find references stating that the FMSF says all
We're waiting to hear about the results of that meeting. recovered memories are false.lll
Another can that day came from a state contact who The confusion perhaps stems from the inflation of the
wanted to know if we had any resources that would help term "recovered memories" beyond the narrowly defined
address issues around reconciliation. His local group want meaning that was the catalyst for the formation of the
ed to make a project out of this. We discussed some of the FMSF. It may be helpful, therefore, to start 1998 with a
areas on which they might focus and sent information on reminder of the constellation of claims about "recovered
reconciliation and mediation. memories." The Foundation has asked for scientific evi
Two other recent calls came from therapists. The first dence in support of these claims. The "recovered memo
was a sibling of a young woman who had made allegations ries" that have been the focus of concern to the Foundation
against her family, neighbors and former teachers. The are those that have been used in the literature in the follow
ca11er said that she looks at this whole "false memory thing" ing context:
differently now that she is personally involved. The second When a child experiences a trauma that is overwhelm
therapist was an accused mother and she wanted to be put ing, it is said that he or she represses it (or dissociates) in
in touch with other therapists who have been falsely order to survive. It is not specified whether this is an active
accused. or a passive process. It is believed that if the same traumat
We are getting fewer calls from newly-accused people. ic experience happens again, the child has no memory that
What families appear to be focusing on now are hopes of he or she has suffered the same experience before. This lack
reconciliation and assurances that this kind of problem will of awareness can go on for hundreds of events.tak.ing pla~.:~
not happen again. We call on the professional organizations over many years, even decades.
and professionals to help us in this effort in 1998. (Unexplained is why the child made no effort to avoid
the alleged perpetrator or the circumstances in which the
alleged abuse occurs. Unexplained is why there was no evi
dence of alleged rapes or of scars from torture. Unexplained
is how the child functioned so normally in everyday life that
no one around the child including siblings, relatives, teach
special thanks ers, doctors, friends, baby~sitters, or neighbors, suspected
We extend a very special ''Thank you" to all of the peo that anything was wrong or said anything at the time.
ple who help prepare the FMSF Newsletter. Editorial Unexplained is how all of these many possible witnesses
Support: Toby Feld, Alien Feld, Howard Fislunan, Peter could be "in denial" or could have also repressed the mem
Freyd. Research: Merci Federici, Michele Gregg, Anita ory.)
Lipton. Notices and Production: Ric Powell. At the same time, the memory is said to be stored some
Columnists: Katie Spanuello and members of the FMSF place in the brain or body. It is claimed that this stored
Scientific Advisory Board. Letters and infonnation: Our memory "leaks" and causes the child to have symptoms. Yet
Readers. it appears that neither the child nor those around the child
has knowledge of the symptoms or else the symptoms don't
----------=cc:-------------------------~
HAVE YOU MADE YOUR PLEDGE?
Have you made your contribution to the Foundation's annual fundraising drive? If not. please take a few minutes to think
how professionals now recognize what false memory syndrome is and how it devastates families. If you are one of those fami-
lies, try to imagine what it would have been like if there had been no one to ca11. Without your support, affected families, former
1
patients, professionals, and the media will have no place to turn. Please be generous. Whatever you are able to contribute is deeply
appreciated. To those who have already returned your pledge card, our thanks for helping to ensure that those who need the
Foundation's help will continue to receive it.
2 FMS Foundation Newsleffer January/February1998 Vol. 7 No. 1
become evident until the person is an are not believed.
Carts and Horses:
adult. It is believed that even though The FMSF has challenged the
Is there scientific evidence that
the memory leaks, the person is unable meaning of "recovered memories" as
massive or robust amnesia caused by a
to access the memory. It is said that described in the literature. The FMSF
traumatic experience as described in
when the person is an adult and has questioned the existence of
the earlier literature actually exists?
becomes a patient who is in a safe "repressed memory syndrome" as it
That is a question that has been asked
place such as a therapist's office, the has been presented in the literature and repeatedly by the Foundation.
patient can gain the insight that he or in legal cases. The FMSF has never In spite of the lack of scientific evi
she has symptoms and that these symp questioned the fact that people forget dence, some trauma therapists have
toms are a sign of past abuse that the and later remember all kinds of things, cited the work of van der Kolk to show
person does not remember. It is said including traumatic experiences. that traumatic memories are stored dif
that the fact that the patient does not People do forget things. People do ferently. Ignoring for the moment
remember any abuse is a sign that the sometimes recall those things. There is, methodological problems with this
abuse was so terrible that memories of however, no scientific evidence for the work, there is nothing in the biological
it were repressed or dissociated. It is existence of the constellation of beliefs theory that demonstrates that the mem
believed that with the help of a thera that are included in the description of ories would be inaccessible. Indeed,
pist and such "memory recovery" tech "recovered memories" given above. there is evidence that such memories
niques as hypnosis, sodium amytal, Inflated and narrow meanings of are more intrusive than non-traumatic
dream interpretation, joumaling, guid "recovered memories" memories.12J There is nothing in the
ed imagery, participation in survivor Those who inflate the meaning of biological theory that could account
groups or reading survivor literature, recovered memories and then claim for the fact that memories of sexual
the person is able to remember the that FMSF doubts them all, do so for abuse events are remembered any dif
abuse and the memory is presumed to their own political agendas. They false ferently from memories of other trau
be accurate. It is said that in order to ly characterize the Foundation's posi matic events. To date, believers in the
"heal" from the childhood abuse, the tion so it can be more easily attacked. biological theory are putting the cart
patient can be empowered by con- A few of these same memory therapists before the horse.
___..--fronting and sometimes suing the have written about studies that show There is still no scientific evidence
alleged perpetrator. It is said that the some people have recovered memories that such a "recovered repressed mem
patient stops being a "victim" by cut of single or brief events that might ory" phenomenon really exists.
ting off all contact with the alleged have been traumatic and for which Speculative theories for a process that
perpetrator(s) and anyone who does there is external corroboration. They has never been shown to exist are sci
not validate his or her new memories. then try to use these studies as a kind of ence fiction, not established science.
This describes how "recovered "existence proof' to say that people The Foundation has never said that
memories" were understood and pre can recover historically-accurate mem any kind of memory is always false or
sented by trauma therapists and their ories and thus the FMSF must be that any kind of memory is always true.
supporters at the time the FMS wrong because they say all "recovered We challenge anyone to provide a cita
Foundation was formed. This is the memories" are to be questioned. Of tion from the Foundation literature that
way that they were reported by accused course, that ignores what the FMSF makes any such claim. The Foundation
parents who contacted the Foundation. has actually said. has said that in order to know whether
As the nonsense of this concept has These same trauma therapists at a memory is true or false, there must be
become obvious, some trauma thera other times want a very narrow defini external corroboration. The
pists have begun to inflate the meaning tion of "recovered memories." They Foundation has said that those who
of "recovered memories" to include say that the kinds of "false memories" have made the strong claim for the
"forgotten-and-remembered" events. that have been shown to exist through existence of "recovered memories" as
This inflation of meaning has confused scientific laboratory studies are outside described in the early literature, have
or even banned patients by blurring the the scope of what real therapists do the responsibility for providing the evi
distinction between the claims that with real patients and therefore they do dence.
have been challenged by the not qualify as "recovered memories." [I] Hinnefeld, B. & Newman, R. (1997) Analysis of
the Truth and Responsibility in Mental Heahh
Foundation and the memories of those In this case they define "recovered
Practices Act and Similar Proposals. Professional
who were genuinely abused. It has memories" in a narrow sense as some Psychology: Research and Practice 18(6) 537-543.1
helped to fuel anger because it has thing only therapists can find.
121 Shobe and Kihls~rom (1997) Is traumatic memory spc·
made those genuine victims feel they cial? Currt!m Dinclioru in Psyclwlogical Sci~nc~ 6(3)
FMS Foundation Newsletter January/February 1998 Vol. 7 No. 3
DEBUNKING TRAUMATIC implicit memory. veys a key claim that proponents of
MEMORY AS SPECIAL The blatant weakness of this traumatic memory often make in the
by Allen Feld research becomes apparent when the courts. One wishes that all judges who
process of selecting the sample, the have to make a decision concerning the
Moira Johnson, author of Spectral
strong potential for bias within the scientific basis for evidence presented
Evidence, said that we are experienc
sample, the lack of control for compar in recovered memory cases would read
ing the "golden age of memory
isons between traumatic and non-trau this article.
research." The publication of a special
matic events that were made by the
memory issue of Current Directions in Other infonnative articles in this issue
subjects, the age when the abuse may
Psychological Science (6,3: June, are:
1997) adds support for her view. have happened and the retrospective Lynn, S.J. & Payne, D.G. Memory
nature of the study are examined.
Included in the many important as the theater of the past: The psy
The theory of "betrayal trauma"
articles in this issue is one that asks, chology of false memories
rests on the assumptions that a betray
"Is Traumatic Memory Special?" by Payne, D.G. et ai:Compelling memo
al (such as sexual abuse) by an impor
Katharine Shobe and John Kihlstrom. ry illusions: The qualitative character
tant figure (like a parent) and the
For anyone who is wrestling with the istics of false memories
dependence of the child on the abuser
often claimed, yet unproved, mantra Loftus, E.G.: Memory for a past that
are the reasons people forget their
that "traumatic memory is special," never was
abuse. This theory would explain why
this article is a must. The arguments Schacter, D.: False recognition and
trauma effects on memory seem vari
for this highly questionable hypothesis the brain
able. Shobe and Kihlstrom note that
are concisely described and then, with Bruck, M. & Ceci, S.J .: The sug
this theory, proposed by Jennifer
the precision of surgeons, the authors gestibility of young children
Freyd, is " ... almost entirely specula
detail the serious scientific flaws in the Lynn, S.J. et al: Recalling the unre
tive" (73). They claim that some of the
assumptions and research. callable: Should hypnosis be used to
scientific justifications that Freyd
After placing traumatic memory in recover memories in psychotherapy?
attempts to use "are of unclear rele
historical perspective by reviewing 0
vance to her theory" (ibid.). Freyd
Janet, Breuer and Freud, the authors
n
speculated that Type traumas A REMARKABLE CLAIM
examine contemporary voices. Much
involved betrayal but she did not deal Pamela Freyd
of contemporary belief in the special
with the methodological problems of
ness of traumatic memory derives from "This study establishes once and
those studies.
the work of Lenore Terr, who posited for all .... " is a remarkable claim to find
Shobe and Kihlstrom debunk
that repeated traumatic events occur in a research report. It immediately
Charles Whitfield's belief that traumat
ring over an extended period of time raises questions as to whether the
('I)'pe 11 trauma) are poorly remem ic memory is state dependent. They authors might have an underlying
note that ''All memory is dependent on
bered, but that a single clearly defined political agenda because researchers
the degree of congruence between the
incident ('I)'pe I trauma) will not be usually underscore the limitations of
context in which encoding took place
forgotten. This theory was a solution to their studies and the need for replica
and that in which retrieval is attempt
the neuroscientific as well as the tion.
ed." (ibid.) This is particularly impor
behavioral and cognitive evidence that In "Objective documentation of
tant because it seriously undermines
explicit memory for emotionally child abuse and dissociation in 12 mur
the justification of memory recovery
arousing events tends to be pennanent. derers with dissociative identity disor
techniques (e.g. hypnosis, other hyp
Shobe and Kihlstrom show both the der" published in the December 1997
notic-like techniques like age regres
deficiency in Terr's research and how issue of the American Journal of
sion, guided imagery, sodium amytal,
other research readily explains some of Psychiatry, Dorothy Otnow Lewis et al
etc.) to enhance memory.
her data. claim to have established once and for
Even if there were research
Bessel van der Kolk, often associ all the relationship between dissocia
demonstrating that traumatic memo
ated with the concept of body memo tive identity disorder and early child
ries are state dependent, there would
ries, argues that explicit memories hood abuse .Ill The article has already
still be no reason to conclude that they
(such as memory for details and been widely cited.
are special. (There is, however, no lab
events) are intetfered with by traumat The authors examined twelve con
oratory or clinical evidence that trau
ic stress, while "sensory, motor or victed murderers psychiatrically, neu
matic memory is state dependent.)
affective representations" of traumatic rologically and for dissociative phe~
Shobe and Kihlstrom's article sur-
events are deeply imprinted as part of nomena. They tell us that the clinical
4 FMS Foundation Newsletter January/Februaryl998 Vol. 7 No. I
data regarding the murderers' symp murderers for many years and has memory but were honestly seeking to
toms and abuse histories are in the been an expert witness in a number of address the FMS issues.
public domain, mostly through legal trials. She has found evidence of mul There were 2500 Christian profes
documents. The authors found that all tiple personality disorder when other sionals from all over the world for the
the murderers showed dissociative experts did not. In a report on the trial 4-day event. Sessions ranged from
identity disorder and that they had of serial rapist Arthur Shawcross, her clinical depression, to sex addictions
also showed signs of it in childhood. method for uncovering memories was to multiple personalities and beyond. I
They report that the subjects had described: brought a simple and important mes
amnesia for the abuse and underre sage: the false memory crisis is real
"Lewis turns on the Shawcross
ported it. video and fast-forwards it to the part and must be addressed. The
The fact that all subjects showed where the prisoner has been hypno Foundation was helpful in providing
childhood evidence of the disorder is tized and Lewis has asked him-for information packets for participants.
interesting because it contrasts with the third or fourth time-whether he The dialogue during the panel dis
the cases brought to the attention of recalls any abuse by his mother." cussion was lively and we had
the Foundation where people showed Boston Globe, July 7, 1991, Alison Bass. respectful disagreements. My presen
no symptoms of dissociative disorder tation focused on the basics:
For some years now we've been
until they became involved in therapy
hearing from the established psy •Theories of repression and disso
as adults. It coincides with the obser chotherapeutic associations that only ciation are neither scientific nor
vation by Daniel Schacter that "fringe therapists" use hypnotism to Biblical.
"patients who recover previously for
recover memories, and only incompe •Recovered memory therapy con
gotten memories involving years of
tents lead their clients with repeated stitutes professional malpractice and
horrific abuse should also have a doc
suggestive questioning. directly contradicts a Biblical stan
umented history of severe pathology Does this study of 12 convicted dard of conduct.
that indicates a long-standing disso murderers establish, "once and for all,
•False memories are a scientific
ciative disorder." 121 the linkage between early severe fact and may be caused by use of
While the study reports details of abuse and dissociative identity disor memory recovery techniques.
~e dissociative phenomena, it does der?"
•It is necessary to develop a bal
not report on the results of the neuro
1. Lewis, D. 0. et al ( 1997) Objective documentation
anced approach that considers the
logical exams. This is intriguing. In a of child abuse and dissociation in 12 murderers with
accused.
dissociative identity disorder. American Journal of
July 1986 article in the American
Psychiatry 154:12, 1703-1710.
•There are practical steps for deal
Journal of Psychiatry, Dr. Lewis 2. Schacter, D. L. (1996) Searching for Memory.
ing with recovered memory claims.
reported on clinical evaluations of 15 New York: Basic Books. page 262
3. Lewis, D. 0. et al. (1986) Psyclliatric, neurologi
death row inmates.IJI In that study, all Sadly, after the presentation, one
cal. and psychoeducational characteristics of IS
were reported to have histories of death row inmates in the United States. American prominent therapist let me know that
severe head injury, 5 had major neuro Journal if Psychimry 143:7. 838-845. "science meant nothing to (him)" and
0
logical impairment and 7 others had that "relational truth" was more
less serious neurological problems important than scientific or Biblical
WORLD CONFERENCE OF
such as blackouts. Other tests showed truth. I asked him what he meant by
CHRISTIAN COUNSELORS
evidence of central nervous system "relational truth." He replied that it
Paul Simpson, Ed.D.
dysfunction. On psychological test would take too long to explain.
ing, ten had evidence of significant The World Conference of Puzzled and left to guess what "rela
cognitive dysfunction. Do the sub Christian Counselors represents one tional truth" comprised, I asked a sec
jects in the 1997 study show similar of the most important gatherings for ond question: "Are you applying this
results? If not, then how would the Christian professional counselors. relational truth to accused families?"
difference in neurological impairment Sponsored by the American He had no response.
between the two samples be Association of Christian Counselors The Christian counseling commu
explained? And if they did have neu (AACC), it is held only every few nity has far to go in coming to terms
rological damage, then is it justified to years. I was invited to chair a panel with their responsibility in the
claim that symptoms are from psycho discussion of FMS this year. The other destruction of thousands of lives of
logical sources (i.e. abuse)? members of the panel were strong clients and their families. But there is
Dr. Lewis has studied convicted believers in the accuracy of recovered progress. The recent multi-million
FMS Foundaflon Newsletter January/February 1998 Vt>l. 7 No. I 5
ed, we bad 104 in attendance, 51 thera
dollar judgments, the criminal
pists, a newspaper reporter from
indictments and the recommenda
Montana's largest newspaper, the local TV
tions of the Royal College of
station, the head psychiatrist from Shodair
Psychiatrists are helping to break When bad men combine, the good must asso·
Hospital, the largest sexual abuse care hos
through. Having the FMS message date; else they will fall one by one, an
pital in Montana, 2 counselorsldirectors
unpitied sacrifice in a contemptible struggle.
presented at the World Conference from the largest private college in the
was an important step towards awak Edmund Burke Vol. i. p. 526. northwest, an administrative assistant from
ening the Christian community. I Thoughts on the Cause of the Present D~content Montana's Managed Care organization,
thank the Foundation for information This is a column that will let you know what people the State Director for the LDS Social
and the families that helped make are doing to counteract the harm done by FMS. Services and Families in the United States
Remember that five years ago, FMSF didn't exist. A
my participation a reality. group ofS O or sa people joUlld each other und and Canada. Pamela Freyd and the
Paul Simpson.Ed.D is the author of Second today more than 18.000 have reported similar expe· Rutherford Family were the speakers.
Thoughts (1996). He directs the '"Building riences. Together we have mmk a difference. How The program was stunning. Our first
Bridges" program in Tucson, Arizona. did this happen? meeting less than a year ago attracted 7
I people. This year I 04 attended. We know
Response to a Notice .
Califonia: In our local group we we are not in this battle alone. We will
1 The notice placed by Lee Holmes m have parceled out some jobs and I took on continue to assist all those who will listen
I the December newsletter asking for the task of keeping the Board of and those who are in need of what we can
contact from people affected by Bebavioral Science Examiners informed offer.
I Confronting Abuse, LDS Perspective"
'. generated much interest. Lee writes of the latest activities that surround incom~ Montana: The "60~Minutes" story
petent therapists. Last month I sent them
has been great publicity for our area. It has
\ that he now has a group of over 50 peo-
(1) Royal College of Psychiatrists
shaken the very core of the mental health
1 ple who wish to move forward. Recommendations; {2) New York Trmes
community in Bozeman. We have sched
(11/5/97) article about the $10.6 million
Requesting Information: uled two workshops for therapists in
settlement in Burgus v Braun; and (3)
January. Both have received approval for
If the therapy that has affected your Houston Chronicle (1 0/30/97) article
CEUs. Nadean Cool and her daughter Kim
family is in any way connected to the about the federal criminal indictments of 5
will be speaking at both.
church community (especially mental health workers.
Assembly of God) or advertised as
Religious Counseling, or Christian Montana: Once IInad.e a COnnectiOO. -··New ."X~I:~ .l.wrote .!Q ~Y. senator
Counseling, please contact regarding New York State's ''recovered
with the Foundation (1996) and gained
memory'' Bill S.4477. I enclosed infonna~
Tom Rutherford knowledge of what had happened to our
tion about FMS. [ also enclosed my per-.
3669 S. Ridgecrest Ave family, I knew it was our responsibility as
sonal and professional objections to the
Springfield, MO 65807 a family to share the knowledge with oth
bill. Upon receipt of my letter, which
Home: 417-883-8617 ers. Since my wife and I are teachers, the
arrived during the week following "60
Fax: [phone] natural thing to do was to educate. As we
Minutes" coverage of the subject, I
moved forward, helping others seemed to
received a call from Senator Volker's
I "Given the difficulty in distin temper the pain we were suffering.
counsel who infonned me that my letter,
guishing true from false memories, We went public with a local newspa
coupled with its opportune timing had
and given the lack of evidence for per and held a public meeting. To my
convinced the Senator not to reintroduce
: repression, as well as for the neces despair only 7 people attended. I was the bill in the next legislative session.
] sity of memory recovery in the somewhat discouraged but came to realize
that most people have a tough time coming
healing process, we contend that WISConsin: Reporters aren't usually
forward when they have been accused.
I therapy focused on memory recov very interested in talking to me, but when
After regrouping, I contacted a coun
i ery does not provide enough docu- I called and said "60 Minutes" was doing
seling training program wilhin the
mented benefits to justify the risk a story, they listened and they wrote! We
1 Montana University system. Our family
\ of false memory creation." page 4 conducted a 3-hour training session with had 4 newspapers in the state do front
page stories on Nadean Cool and "60
1 Hyman, Jr. I. and Loftus, E. F., Some 12 master level therapists-in-training. We Minutes." 1\vo local CBS affiliates also
1 people recover memories of childhood were well received.
did FMS stories on their evening news.
trauma that never really happened. in We arranged a sectional meeting at
1\vo reporters thanked me for the tip. Am I
Trauma and Memory: Clinical and the Montana Counseling Association State
ever glad that I called them.
Legal Controversies (Edited by Paul S. Convention in 1997. We secured CEUs for
Appelbaum, MD, Lisa A. Uyehara, therapists and renewal credits for teachers. Send your ideas to Katie Spanuello
1
M.D. and Mark R. Elin, Ph.D.)New Our local newspaper released a wonderful c/oFMSF
1
i York: Oxford U Press, 1997 article. As the two-day conference unfold- Make a Difference is continued onp 17.
6 FMS Foundation Newsletter January/February 1998 Vol. 7 No. 1
res~lti~g .:~am the abuse is "a wholly subjective inquiry"
L E G
whtch IS s1mply not relevant to the ultimate question of the
time at which the claimant knew or should have known that
he/she was sexually abused."
FMSF Staff Hunter v. Brown, 1996 WL 57944 (Tenn. App.,
SUMMARY OF RECENT CASES INVOLVING ~ebruary 13, 1996) slip copy. In this case of first impres
st_on, the Tennessee Court of Appeals declined to apply the
THE SCIENTIFIC STATUS OF
dtscovery rule to toll the statute of limitations in "repressed
REPRESSED MEMORIES
memory" cases. The Court noted that the "inherent lack of
(Copies of motions and unpublished decisions are available from the
verifiable and objective evidence in these cases distinguish
FMSF Brief Bank.)
es them from cases in which Tennessee courts have applied
Lemmerman v. Fealk, 534 N.W.2d 695, (Mich, July 5, the discovery rule {previously]. We find that there is simply
1995). The Michigan Supreme Court held that neither the too much indecision in the scientific community as to the
discovery rule nor the disability statute extend the limita credibility of repressed memory." Affirmed by the
tions period for tort actions allegedly delayed because of Tennessee Supreme Court, Hunter v Brown which declined
repression of memory of assaults. "It cannot be concluded to rule on the question of applicability of the discovery rule
with any reasonable degree of confidence that fact finders in "repressed memory" cases because it found that under the
facts of the case, the claim was time-barred.
could fairly and reliably resolve the questions before them,
given the state of the art regarding repressed memory and S.V. v. R.V., 933 S.W.2d l, 39 Tex. Supp. J. 386, (Tex.,
the absence of objective verification." March 14, 1996) The Texas Supreme Court held that in
Borawick v. Shay, 68 F.3d 597 (2nd Cir., Conn., order to apply the discovery rule to toll the statute of limita
October 17, 1995), cert denied. The U.S. Second Circuit tions under any set of facts, including repressed memory
claims, the wrongful event and injury must be "objectively
Court affinned dismissal of Complaint following an in lim
ine ruling prohibiting plaintiff from testifying based on hyp verifiable" and inherently undiscoverable. After a thorough
review of expert testimony and scientific literature, the court
notically-refreshed recollections of sexual abuse. The court
concluded that the scientific community has not reached
___ stated, ''The fact remains that the literature has not yet con
clusively demonstrated that hypnosis is a consistently effec consensus on how to gauge the truth or falsity of "recov
ered" memories. Therefore, the court held that expert opin
tive means to retrieve repressed memories of traumatic, past
ion in this area does not meet the objective verifiability
experiences accurately." The court expressed concern over
requirement for extending the discovery rule.
the risks of suggestibility, confabulation, and memory hard
ening when hypnosis triggers the testimony. Kelly. et al. v. Marcantonio. et a!, 678 A.2d 873, (R.I.,
July 11, 1996). The Rhode Island Supreme Court held that
Woodroffe y. Hansenclever, 540 N.W.2d 45 (Iowa, Nov.
the reliability of repressed memory theory must first be
22, 1995). The Iowa Supreme Court affirmed summary
determined prior to extending the statute of limitations. The
judgment in a case where "the plaintiff is asserting multiple
court instructed trial judges to hold an evidentiary hearing
causes of action against a defendant based on memory sur
reviewing "the entire scientific theory of repressed recollec
facing sporadically after many years." The extension of the
tion and the scientific method through which such recollec
statute of limitations sought by plaintiff was described as
tions are recovered" to determine whether the specific
favoring a "rolling statute of limitations" where each time
"repressed recollection" is "sufficiently relevant, reliable,
plaintiff recalls something new, the "clock" would be reset
and scientifically and/or medically established." The court
and the plaintiff would have additional time to bring anoth
er lawsuit. held that the claim may be brought only if the trial judge
determines that the theory is "scientifically accepted and
Blackowiak v. Kemp, 546 N.W.2d I (Minn, April 19,
valid" and the evidence shows the Plaintiff to be of
1996). The Minnesota Supreme Court held that the state
"unsound mind."
statute of limitations for sexual abuse is to be interpreted
Travjs v. Ziter, 681 So.2d 1348 (Ala., July 12, 1996).
under an objective reasonable person standard as to whether
The Alabama Supreme Court ruled that alleged repressed
the plaintiff had reason to know of the sexual abuse, since,
memories do not qualify as disability to extend the statute of
as a matter of law, injury is inferred because of the nature of
limitations. After a review of the literature regarding
the criminal sexual conduct. To construe, the court wrote,
repressed memories, the court concluded, "there is no con
the statute as dependent on when the victim may "acknowl
sensus of scientific thought in support of the repressed
edge" or "appreciate" the nature and extent of the harm
FMS Foundation Newstelter Januory/February1998 Vof.1 No. f 1
---------
memory theory." The court emphasized that no court which M,E.H. v. L.H., 669 N.E.2d 1228, 218 Ill. Dec. 702
addressed "the speculative nature of the repressed memory (Ill.App.2nd Dist., August 28, 1996). The Illinois Appellate
theory" allowed the issue to be decided by the jury. Court declined to apply the discovery rule to a "repressed
memory" claim finding that, by definition, an individual
Doe v. Maskell, 679 A.2d 1087 (Md., July 29, 1996),
claiming "repressed" memories must have had some mem
cert denied 117 S.Ct. 770 (1997). The Court of Appeals,
ory to repress and therefore can be assumed to have known
Maryland's highest court, held that "repression of memories
of the alleged event at the time it occurred. The court rea
is an insufficient trigger" to justify extension of the statute
soned that a traumatic assault by its very nature puts the
of limitations for filing civil suits. After a review of the sci
individual on notice of the injury and that the actionable
entific literature and the "dangers of iatrogenic (therapist
conduct might be involved. The court concluded, citing
created) memories," the court concluded, "We are uncon
Tyson v. Tyson with approval, "If we applied the discovery
vinced that repression exists as a phenomenon separate and
rule to such actions, the statute of limitations would be
apart from the normal process of forgetting. Because we
effectively eliminated and its purpose ignored. A person
find these two processes to be indistinguishable scientifical
would have an unlimited time to bring an action, while the
ly, it follows that they should be treated the same legally."
facts became increasingly difficult to determine. The poten
The court affirmed the lower court's ruling which had con
tial for spurious claims would be great and the probability
cluded, following a week-long evidentiary hearing, that the
of the court's determining the truth would be unreasonably
testimony regarding repressed memory was of insufficient
low." Affinned by the Illinois Supreme Court, M.E.H. v.
scientific reliability under Reed/Frye or Daubert. See, Doe
!df.., 1997 WL 562001 (Ill., Sept. 4, 1997), slip copy.
v. Maskell in the Circuit Court for Baltimore City,
Maryland, No. 9423601/CLI85756, May 5, 1995. Knode v. Hartman, U.S. Court of Appeals, 5th Cir., No.
94-11120, Sept. 9, 1996, unreported. The U.S. Court of
Comm. of Pennsylvania v. Crawford. 682 A.2d 323 {Pa.
Appeals found a "repressed memory" claim barred by
Super, July 30, 1996). A Pennsylvania Superior Court
Texas' two-year statute of limitations. The court concluded
reversed a murder conviction based on testimony derived
that "recovered" memories of Complainant's sister were not
from repressed memories, stating that the trial court should
sufficient to establish the objective verification of the claims
have analyzed whether, in Pennsylvania, the admission of
as required under S.V. v. R.V., 933 S.W.2d I (Tex., 1996).
the revived repressed memory testimony was appropriate.
The court noted that the theory of repressed memories is LogerQujst v. Danforth, 932 P.2d 281 (Ariz. App. Div. 2,
"widely debated and many are critical of the theory." [t is October 3, 1996). The Arizona Court of Appeals held that
not a subject juries are normally familiar with or able to "repressed memory" claims may invoke the discovery rule
"draw conclusions as to its accuracy or credibility" without -assuming that "the trial court determines that evidence of
the assistance of expert testimony. the underlying claim of repressed memory is admissible."
The court noted that the trial court had not addressed or
State of Rhode Island v. Ouattrocchi, 681 A.2d 879
ruled on the issue of the admissibility of repressed memory
(R.I., July 31, 1996). The Rhode Island Supreme Court
under Frye. Since it did not, and "since their resolution
overturned a conviction on sex abuse charges, because the
seemingly will require analysis and detennination of facts
trial court failed to hold a preliminary hearing, without a
and opinions," the appellate court remanded the matter for
jury, to determine whether the accuser's "flashbacks" of
further proceedings consistent with its decision. Regardless,
abuse were reliable. The court "reviewed the controversy
the plaintiff retains the burden of establishing that the dis
over the reliability and admissibility of testimony, expert
covery rule applies.
and otherwise, relating to repressed recollection," and noted
that studies show that the psychoanalytic process can lead to Engstrom v. Engstrom, No. B098146, (Cal. App., 2nd
a distortion of the truth. Based on these conclusions, the App. Dist., Div. 2, June 18, 1997) unpublished. Cert. denied
court instructed trial justices in both civil and criminal cases (Cal., Sept. 3, 1997), No. B098146. In an unpublished opin
to "exercise a gatekeeping function and hold a preliminary ion, a California Court of Appeal affirmed a Superior
evidentiary hearing outside the presence of the jury in order Court's judgment of non-suit since appellant had no memo
to determine whether such evidence is reliable and whether ries of childhood abuse other than those generated during
the situation is one on which expert testimony is appropri the period he was in therapy and "compelling" evidence
ate ... The failure to hold such a hearing constitutes error." showed that those memories did not meet the Kelly-Fcye
The court specifically stated that cross-examination alone is standard of admissibility. The court ruled, therefore, that
an insufficient means to determine the reliability of such appellant was "rightly precluded from testifying to any
testimony and is unlikely to lead to the truth. recovered repressed memories." The court also noted that
even were an appellant to meet the "delayed discovery"
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8 FMS Foundation Newsletter January! February 1998 Vol. 7 No. 1
provision of California statute of limitations, Section 340.1, 1997). The North Carolina Court of Appeals affirmed the
the additional evidentiary hurdle must be surmounted lower court's finding that Plaintiff's testimony as to her
before that appellant would actually be able to testify to any allegedly repressed memories was precluded, absent
claimed recovered repressed memories. See, Engstrom v. accompanying expert testimony explaining the phenome~
Engstrom, Superior Ct., Los Angeles Co., California, No. non of memory repression. The court elected in its discre~
VC-016157 (October 11, 1995). tion to address this singular issue presented by the Plaintiff
although it noted that plaintiff's appeal is premature. See
John BBB Doe v. Archdiocese of Milwaukee, 565
Barreu v. Hyldburg, Superior Ct, Buncombe Co., North
N.W.2d 94 (Wise., June 27, 1997). The Wisconsin Supreme
Court affirmed dismissal of Complaints in seven consoli~ Carolina, No. 94~CVS~0793, January 23, 1996.
dated cases involving both Type 1 and Type 2 claims. In Ramona v. Ramona, 66 Cal. Rptr.2d 766 (Ca. App.,
addressing the 'TYpe 2 repressed memory claims and after a Aug. 19, 1997). In a unanimous opinion, the Second
review of case law in other jurisdictions, the court conclud~ District Court of Appeals ordered a lower court to dismiss a
ed that it would be contrary to public policy and would "repressed memory" claim because, the comt concluded,
defeat the purpose of the limitation statutes to allow claims the testimony was tainted by the drug sodium amytal which
of repressed memory to invoke the discovery rule to indefi~ was administered during therapy. The court concluded that
nitely toll the statute of limitations. the repressed memory testimony of Plaintiff is ''inadmissi~
ble under Kelly due to the lack of general acceptance in the
State of New Hampshire v. Hungerford, 1997 WL
scientific community of the reliability of memories recalled
358620 (N.H., July I, 1997). The New Hampshire Supreme
after a sodium amytal interview." See, Ramona v. Ramona,
Court affirmed the lower court's ruling that the party
offer~
Superior Ct., Los Angeles Co., California, No. KC-009493,
ing repressed memory testimony of either an expert or corn~
March 11, 1997.
plainant has the burden to prove it sufficiently reliable to be
admitted. The question of reliability is to be considered on Dah:ymple v. Brown, 1997 WL 499945 (Pa., Aug. 25,
a case~by-case basis, but "tempered with skepticism" 1997). The Pennsylvania Supreme Court refused to apply
according to factors based on Daubert and the availability of the discovery rule to cases involving "repressed memories."
any direct corroboration. The court specified why the phe~ The court held that repressed memories do not provide the
nomenon cannot currently be considered reliable or to have kind of objective evidence required to invoke the discovery
gained general acceptance in the scientific community. The rule or to demonstrate an undiscoverable injury. The con~
court noted that if the phenomenon were ever able to satis curring opinion noted that, "the validity of repressed mem~
fy the court's objections and be found reliable, then addi ory theory is subject to considerable debate in the psycho~
tional inquiry into the circumstances of memory recovery logical community and some courts have rejected its admis
(especially any therapeutic process) may be called for. See, sibility."
State of New Hampshire v. Hungerford, 1995 WL 378571 THE SCIENTIFIC STATUS OF
(N.H. Super., May 23, 1995). REPRESSED MEMORIES
TRIAL LEVEL DECISIONS:
State of New Hampshire v. Waiters, 1997 WL 937024
(N.H., Aug. 6, 1997), slip copy. The New Hampshire State of New Hampshire v. Hungerford, 1995 WL
Supreme Court reversed the lower court's ruling which had 378571 (N.H. Super., May 23, 1995). In May 1995, after a
allowed complainant's repressed memory testimony in a two~ week long Frye/Daubert hearing and a thorough facto~
criminal sexual assault trial. Citing Hungerford, the court al review, Superior Court Judge Groff concluded that the
reaffirmed that the proponent of repressed memory testimo~ State failed to meet its burden of proving that there was gen~
ny held the burden of demonstrating that the testimony is era! acceptance of the phenomenon of repressed memory in
reliable. In addition, the court reiterated that repressed the psychological community, and, further, that the State
memories must satisfy the eight~pronged admissibility test failed to demonstrate that the phenomenon was reliable.
enunciated in Hungerford in order to demonstrate that the ''The Court finds that the testimony of the victims as to their
testimony is reliable. Noting the difficulties the defense memory of the assaults shall not be admitted at trial because
would face in cross~examining a dream or flashback, the the phenomenon of memory repression, and the process of
court reiterated its conclusion in Hungerford, "[t]he indicia therapy used in these cases to recover memories, have not
of reliability presented in the particular memories in this gained general acceptance in the field of psychology; and
case do not rise to such a level that they overcome the divi~ are not scientifically reliable ... Testimony that is dependent
sive state of the scientific debate on the issue." upon recovery of a repressed memory through therapy can~
not be logically disassociated from the underlying
Barrett v. Hyldburg. 1997 WL 434876 (N.C., Aug. 5, scientif~
ic concept or the technique of recovery." Affirmed. State of
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FMS Foundation Newsleffer January/February1998 Vol. 7 No. 1 9
New Hampshire v. Huneerford, 1997 WL 358620 (N.H., all of the evidence that has been presented, the arguments
July I, 1997). of counsel, the scientific evidence, the deposition evi
dence, the case law, and the matters contained in the file,
En!:strom v. Engstrom, Superior Ct., Los Angeles Co.,
that the evidence sought to be introduced is not reliable
California, No. VC016157, Oct. 11, 1995. Superior Court
and should not be received into evidence in this uial." The
Judge Sutton granted a motion to exclude the testimony of
court concluded, "there has been no general acceptance in
plaintiff and his witnesses, including expert witnesses,
the relevant scientific community of the theory of
regarding "repressed memories," "repression" or "dissoci
repressed memory. ... The reliability of repressed memory
ation," finding that "the phenomenon of 'memory repres
evidence itself has not been shown, and therefore, the evi
sion' is not generally accepted as valid and reliable by a
dence should be excluded at trial." Affirmed in part,
respectable majority of the pertinent scientific community
Jlarrett v. Hyldburg. 1997 WL 434876 (N.C., Aug. 5,
and that the techniques and procedures utilized in the
1997).
reuieval process have not gained general acceptance in the
field of psychology or psychiatry." Following a 402 hear Dalrymple v. Brown, Superior Court of Pennsylvania,
ing on September 6, 1995, Judge Sutton found the testi 1628 Philadelphia 1995 (l.A52010/1995) February 21,
mony proffered by plaintiff and his expert witnesses did 1996. The Superior Court of Pennsylvania concluded that
not meet the standard required under Kelly!Frye. The court the "discovery rule" does not operate to toll the statute of
labeled the repressed memory theory and reuieval process limitations when plaintiff claims psychological repression
"junk science." A judgment of non-suit followed this rul of alleged sexual abuse. The court held that in applying the
ing. Affinned, Engstrom v. Engstrom, No. B098146, (Cal. discovery rule, the objective standard of "reasonable dili
App., 2nd App. Dist., Div. 2, June 18, 1997) unpublished. gence" is to apply. Affirmed by Pennsylvania Supreme
Court. See, Dalrymple v. Brown, 1997 WL 499945 (Pa.,
Carlson v. Humenansky, No. CX-93-7260, 2nd Dist.,
Aug. 25, 1997).
Ramsey Co., Minnesota, Dec. 29, 1995. Disuict Court
judge Bertrand Poritsky ruled that the concept of repres Thomason v. Vice, Superior Court, San Joaquin
sion does not meet either the Frye or Daubert standard and County, California, No. 263209, Order June 25, 1996,
that "expert testimony which assumes the validity of this Decision, March 4, 1996. Superior court Judge F. Clark
concept of repression be excluded." An expert's testimony Sueyres excluded expert testimony as to repressed memo
and conclusions may not be based on the reliability of this ry because "there is no general acceptance by the scientif
concept. I do not find it to reach the threshold of reliabili ic community of this scientific technique." In an earlier
ty for general acceptance." Order (June 25, 1996), the court in effect excluded lay tes
timony on recovered repressed memory, holding that
State of Illinois v. Stegman. Rickman, Circuit Ct.,
because the phenomenon of recovered repressed memory
Massac Co., Illinois, No._, Oct. 25, 1995. Murder
is beyond the ken of the jury, in order for the jury to be able
charges against defendants Stegman and Rickman were
to evaluate the witness's credibility, her testimony must be
based on Stegman's daughter's "recovered" memories of
supported by the testimony of a scientific expert explain
the murder. A woman's body had been found in 1967 and
ing the scientific principles underlying the phenomenon.
the murder was never solved. The daughter's medical
records verified that she had been hypnotized, even though Doe v. Maskell, in the Circuit Court for Baltimore
the State at first denied that she had ever been under hyp City, Maryland, No. 9423601/ CL185756, May 5, 1995.
nosis. On Oct. 11, 1995, the judge granted a motion (par Circuit Court Judge Hilary Caplan dismissed the suit in
alleling arguments found in Hungetford) to hold a pre-uial 1995, following a week-long evidentiary hearing, after
hearing based on Frye and Daubert to determine the admis which the court concluded that the testimony regarding
sibility of expert testimony and testimony derived from repressed memory was of insufficient scientific reliability
repressed memory therapy. Then on Oct. 25, 1995, the under Reed/Frye or Daubert. Affirmed. Doe v. Maskell. et
state withdrew the murder charges. Stegman has recently a!, 679 A.2d 1087 (Md., July 29, 1996), cert denied 117
filed a malpractice suit against his daughter's therapists. S.Ct. 770 (1997).
Barrett v. Hyldburg, Superior Court, Buncombe Co., Franklin v. Stevenson. Third Judicial Disuict Court,
North Carolina, Case No. 94-CVS-0793, January 23, !996. Salt Lake County, Utah, No. 94-090177PI, Order dated
Judge Ronald Bogie granted defense motion to exclude all December 6, 1996. Judge Kenneth Rigtrup reversed a jury
evidence derived from alleged repressed memories and left verdict in this case which had been based on claims of
the order open for such additional findings of fact as may recovered repressed memories of childhood sexual abuse.
be appropriate. "[T]his court is of the opinion, considering In an Order Granting Final Judgment Notwithstanding the
10 FMS Foundation Newsletter January!February1998 Vol. 7 No. 1