By Elizabeth F. Loftus and Laura A. Rosenwald
Nov 28, 2004, 02:05
Summary: While no one can doubt the horror of child sex abuse, the powers of suggestion may be helping some adults recall events that never happened. Where those victims once found healing, others now claim betrayal.
[Reprinted with permission, circa 1996.]
While no one can doubt the horror of child sex abuse, the powers of suggestion may be helping some adults
recall events that never happened. Where those victims once found healing, others now claim betrayal.
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In a groundbreaking case set for trial in California in March, a man is suing a medical center and two therapists who, he claims, helped his adult daughter manufacture memories of him sexually abusing her as a child.
Just two years ago in Ohio, an appeals court for the first time upheld a malpractice award to a woman whose psychiatrist injected her with “truth serum more than 140 times to help her uncover buried memories of alleged childhood sex abuse by her mother.”
In Seattle, a trial judge recently rejected a sex abuse claim based on recovered memories allegedly unearthed by such New Age “therapies” as bioenergetics and age regression.
Across the country, despite society’s abhorrence of sex crimes, judges and juries are beginning to view with skepticism some sex abuse claims based on recovered memories. Some researchers in the field of psychology have criticized the resulting lawsuits on the ground that no experiments have demonstrated conclusively that memories can be repressed and then reliably recovered, Instead, they say, therapists inadvertently may plant false memories through suggestive questioning and drug therapy.
And some defendants, as in the case in California, are starting to take the offensive, filing negligence claims against those therapists who helped produce abuse accusations. They are demanding compensation for the psychological upheaval, the ruined reputations and careers, and the breakup of families that inevitably follow the supposed recall of abuse in childhood. Such negligence suits are difficult to win, but some plaintiffs already have surmounted the many legal hurdles that such cases present.
In less than a decade, new fields of law and psychotherapy have sprung up around the theory that children can repress memories of sex abuse and later, as adults, retrieve them. Since 1988, courts and legislatures in more than 23 states have responded to pleas from women’s rights advocates and to public outrage about child sex abuse by creating a legal mechanism for both criminal and civil actions based on recovered memories.
While many such suits have failed, the successful ones have produced damage awards as high as the $5.15 million judgment in Hood v. Herald (Summit County, Ohio, Common Pleas Court), a 1992 lawsuit brought by an Ohio woman against her uncle.
Meanwhile, recovered-memory therapists have been given a relatively free ride in the courts. Joyce-Couch v. DeSilva, 602 N.E.2d 286 (Ohio 1991), is the lone reported case of an appeals court upholding a jury malpractice award to a patient whose therapist mishandled recovered memory therapy.
Actually, recovered memories of sex abuse only gained increased acceptance by psychotherapists in the early 1980s, providing a means of explaining eating disorders, difficulty in forming relationships, low self-esteem and sexual dysfunction. They theorized that the trauma of sex abuse could cause children to repress temporarily all memory of the abuse.
While submerged, these memories were psychologically destructive. If a patient could retrieve them in therapy and integrate them into consciousness, the theory asserted, healing and moving on with life would become possible.
These early descriptions of recovered memories coincided with the rise of public concern about sex abuse. Recovered memories offered a solution to one of the most vexing aspects of child sex abuse – the suspicion that such abuse is dramatically underreported. Abuse is sometimes hushed up because victims are too young or too fearful to report it or to testify. In contrast, recovered memories arise in adults who can be competent, convincing witnesses.
Recovered memories found their way into the legal system in 1986, when the Washington State Supreme Court refused to waive the statute of limitations for a woman suing her father for alleged childhood abuse. In response, the Washington Legislature effectively overruled the court two years later and applied the “discovery rule” to such actions.
The rule, traditionally invoked in medical malpractice cases, allows a claim to be filed a few years after the discovery of an injury or the linking of an injury to damage. Under the new Washington law, a child sex abuse victim may sue for up to three years after recalling an incident of abuse, regardless of the date of the abuse.
Because the theory behind memory recovery has never been verified experimentally, it has produced a rift between therapists who embrace it and research psychologists who doubt its reliability.
Richard Ofshe and Margaret Singer of the University of California at Berkeley-among the most outspoken academic critics of recovered memories-have described the theory as “either the most fascinating psychological discovery of the 20th century or the centerpiece of the most embarrassing mistake modern psychiatry and psychotherapy have ever made.”
Ofshe, who takes the “embarrassing mistake” view, notes: “Sixty years of experiments that would demonstrate the phenomenon have failed to produce any evidence of its existence. The notion of repression has never been more than an unsubstantiated speculation tied to other Freudian concepts and speculative mechanisms. The only support repression has ever had is anecdotal and contributed by psychoanalysts who presume the existence of the repression mechanism.”
The consequences of recovered memory therapy often extend far beyond the patient, to family members, friends and neighbors. When an adult “discovers” memories of past sexual abuse, the response often is to confront the alleged perpetrator or sever relations, and maybe even sue in a civil action or testify in a criminal trial. Ultimately, families and reputations are shattered, and the most venomous divorces and custody battles ensue.
Plaintiffs who claim recovered memories of abuse often present little substantial corroborating evidence, leaving juries to weigh the credibility of victim and accused, and to rely on revelations from psychotherapy. But because psychotherapy is a healing technique and not a search for truth, it may not be a reliable source of facts.
The California lawsuit, Ramona v. Ramona, (Napa County Superior Court, No. 61898), may be the first in which the target of a civil claim based on recovered memories sued the therapists. In this case, a daughter sought treatment from a therapist in 1989 for bulimia nervosa, an eating disorder involving binging and self-induced vomiting.
Although pretrial discovery shows that she had never considered herself to be a sex abuse victim, the therapist told the woman’s mother that 70 percent to 80 percent of bulimics have been sexually abused. The woman then attended weekly group sessions led by hcr therapist at which sexual victimization was discussed. Soon she reported having fuzzy flashbacks of her father sexually abusing her as a child.
At the therapist’s request, a psychiatrist injected the woman with the powerful barbiturate sodium Amytal. According to the therapist’s notes from an interview conducted while the woman was sedated, she accused her father of having repeatedly raped her from age five to age seven.
When the woman later voiced doubts about such abuse, the therapist and psychiatrist assured her that lying while under the influence of sodium Amytal was impossible without training to do so.
The therapist and psychiatrist were so confident of the accusations that they invited the father to the hospital the next day so the daughter could confront him. Soon after, the man’s wife filed for divorce and sought custody of the couple’s two minor daughters. The adult daughter sued her father, and, while her suit was pending, he sued the therapist, the psychiatrist and the hospital where the Amytal interview had taken place.
As in this case and other similar suits, proving psychological malpractice or negligence is never easy. Demonstrating causation is complicated, because patients are troubled before they enter therapy, and juries must struggle to distinguish old from new psychological injuries being less obvious than broken bones.
Similarly, jurors may have difficulty identifying unprofessional behavior. For example, treatment of acute appendicitis is straightforward, while there are many accepted ways to tackle schizophrenia. Not surprisingly, most successful psychology tort suits involve missteps that either cause physical harm or that plainly violate professional ethics: failure to prevent suicide, inappropriate drug prescriptions, or sexual relations between therapist and patient.
The odds of success in a suit against a therapist decrease when the plaintiff is not the patient. Such a plaintiff must establish that the therapist owed a legal duty. A plaintiff who also bears the stigma of suspected child sex abuse may seem an unsympathetic figure in the courtroom.
But in Ramona, the father has the advantage of claiming injuries to his reputation and family, rather than to his mental health. The trial court has held that it is a jury question whether the defendants undertook a duty to the father when they treated the daughter and helped arrange her confrontation. If upheld on appeal, this ruling would be the first in which a court has found that a recovered-memory therapist has a duty to a third party.
In other actions, courts in Colorado, Texas and California have allowed parents to sue therapists for the therapists’ actions based on false sex abuse charges made by their children.
In 1988, in Molitoya v. Bebensee, 761 P.2d 285, the Colorado Court of Appeals reinstated a father’s negligence and outrageous conduct claims against his daughter’s therapist for her behavior in a custody proceeding. The court held that a therapist who counseled a child owed a duty of care to the father because the harm he suffered from false charges of abusing his daughter was foreseeable.
The Texas Court of Appeals echoed this reasoning in WC.W v. Bird, 840 S.W.2d 50 (1992), asserting that termination of custody rights, criminal proceedings, emotional trauma, loss of relationships and employment repercussions were the predictable fallout of a child sex abuse allegation.
Finally, in 1993 the California Court of Appeals refused immunity to a family counselor accused of pressuring an 8-year-old girl to make unfounded rape charges against her father. According to a suit filed by the parents, James W v. Superior Court, 93 C.D.O.S. 5449 (July 16, 1993), the counselor tried for two and a half years to convince the girl that her father had assaulted her and to have the child adopted – though the counselor knew of another suspect in the case. The counselor told the child that the child’s claim that a stranger had climbed through the bathroom window was not believable, and asked the child’s mother to treat the father as “dead” in the child’s presence.
The same dangers loom when a therapist conducts recovered-memory therapy – And unlike other professionals and police officers who file traditional child sex abuse reports, recovered-memory therapists are not immunized from liability for reporting abuse. Such immunity is granted for child sex-abuse reports in hopes of stopping such abuse, but, in most cases, it’s presumably too late to prevent conduct that surfaces during recovered memory therapy.
In Ramona, the father’s challenge will be to convince a jury that the therapists violated the standards of their profession. Because recovered memory therapy has gained a degree of acceptance among psychotherapists, the father presumably will have to prove that his daughter’s psychotherapists conducted such therapy negligently through their combined use of suggestion, reassurance and sodium Amytal, and in questionable behavior during the confrontation between him and his daughter.
That the daughter stands by her therapists and insists that her recovered memories are real makes her father’s legal burden much heavier. The handful of other negligence and malpractice lawsuits for recoveredmemory therapy have been brought by patients.
For example, the Minneapolis Star-Tribune reported recently that two women sued a St. Paul psychiatrist, charging that the psychiatrist coerced them into claiming false memories of sex abuse. According to their complaint, the psychiatrist threatened that they would lose their children and be committed to a psychiatric hospital unless they “remembered” abuse by relatives and in satanic rituals.
In the only reported malpractice judgment for recovered-memory therapy, Joyce-Couch v. DeSilva, plaintiff Joyce-Couch was a patient of defendant DeSilva, a psychiatrist. She contended that the psychiatrist injected her with sodium Pentothal at least 141 times, leading her to recall memories of abuse by her mother.
Joyce-Couch did not necessarily undermine recovered-memory therapy’s legitimacy. The patient clung to her belief in the truth of her “memories” of abuse, and her own experts testified that six to 12 sodium Pentothal sessions would be acceptable treatment. Still, the case illustrates the dangers of such therapy. Joyce-Couch accused DeSilva of taking advantage of her drugged state to try to persuade her not to confront her mother, implying that she was suggestible while drugged.
The possibility that barbituates render patients suggestible is among the most disturbing aspects of relying on recovered-memory therapy. Even a single dose of sodium Amytal might produce less reliable statements than those made while not under its influence. In any case, in the absence of corroborating evidence even the most skilled clinician cannot evaluate the truth of drug-induced statements. Thus, sodium Amytal should be treated like hypnosis, which in most states renders inadmissible all further testimony of the hypnotized witness.
In a recent civil Suit in Seattle, a judge suggested that some recovered-memory therapy might be overly suggestive. In Mateu v. Hagen (King County Superior Court, 91-2-080634), a 33 year-old woman sued her mother’s former boyfriend, claiming that in 1988 she began to remember him sexually abusing her from age 10 to age 16. A therapist helped the woman recover the memories with such methods as age regression, bioenergetics, psychodrama, trance work, visualization and guided imaging.
In ruling for the defense, the judge noted that defense experts had found the therapist’s techniques “particularly susceptible to use in shaping a patient’s memories.”
In fact, hundreds of studies during the past 20 years have demonstrated the ease with which memory can be distorted by suggestion, misinformation and leading questions. Testifying in a hearing in the Ramona case, forensic psychiatrist Park E. Dietz described “pseudomemories,” which are honestly believed by the person who holds them:
“[T]here are quite a few shops in operation around the country that are in the business of transforming otherwise troubled people into pseudo-victims of several categories,” Dietz said. “The most obvious of those are the people who specialize in treating UFO abductees […] in treating satanic cult victims. And quite related to it, some of the treatment of multiple personality disorder and other disassociative disorders […]. And a significantly smaller proportion of the treatment of sexual abuse victims or survivors seems to be in this vein.”
One argument for allowing malpractice and negligence actions is that they are quality control tools for recovered-memory therapy. As shown by Joyce-Couch, Bird and Bebensee, “treatment” for sex abuse can go dramatically awry. After all, recovered-memory therapists have yet to produce more than anecdotal reports to support their practices, while scientists have demonstrated the suggestibility of patients.
However, a lawyer who files a claim for malpractice or negligence in recovered-memory therapy should not expect to be treated like a hero.
Many women’s rights groups view these controversial suits as a backlash against child abuse reporting. One organization of women’s rights attorneys has asserted that a malpractice suit “threatens to silence researchers, clinicians and advocates […] and, once again, isolate the victims.”
In general, though, while a plaintiff may face an uphill fight in convincing a jury that a therapist’s use of suggestion or drugs amounted to negligence, some types of cases will be easier to win than others, such as those in which the patient disavows recovered memories and cooperates with the accused.
Although third-party lawsuits, like the one in California, offer a partial solution, it should be kept in mind that, basically, lawsuits will not repair the damage wrought by these wars between father and daughter, niece and uncle, neighbor and neighbor. No matter who prevails in court, the legacy is bitter, lasting pain for all involvcd.
Hopefully, the possibility of such suits may cause therapists to avoid harmful excesses and may discourage irresponsible therapy. It might even prompt some to reconsider before they join in confrontations, accusations and lawsuits that can be devastating. Then, therapists can devote more of their energies to tackling the very real problem of genuine, documented child abuse.
Elizabeth F. Lotus is a professor of psychology and adjunct professor of law at the University of Washington, Her most recent book is Witness for the Defense, St. Martins Press (1991).
Laura A. Rosenwald is the editor of the Washington Law Review.
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