Debunking "false memory" myths in sexual abuse cases

by Wendy J. Murphy

False Memory Syndrome Facts Website

From Trial November 1997
APA-Style citation for this article

An aggressive litigation strategy can head off defense claims that memories of trauma are all in the victim's head.

For many years, adult survivors of child sexual abuse have been filing civil claims for damages. In some cases, plaintiffs file their claims decades after the abuse ends because the nature of the trauma renders them incapable of filing earlier.

These cases can be broken down into two categories. In "recovered memory" cases, victims had no memories of the abuse until years later. In "appreciation" cases, victims remembered being abused but did not appreciate the causal relationship between the childhood abuse and the psychological and emotional injuries they suffer as adults. This article addresses an issue that is likely to come up only in the former category of cases.

Recovered memory cases are facing new and substantial pre-trial hurdles, sometimes leading to dismissal orders and summary judgment decisions that deny victims their day in court. At the heart of the problem is the largely contrived controversy around "false memory syndrome" and the alleged unreliability of "repressed" memories.

While public debate about so-called false memories has been raging for years, increasing numbers of trial and appellate court decisions involving this issue are just now being issued. These decisions reflect significant lack of uniformity among the courts, not only in the results but also in the reasoning and even in the context within which the memory issues are analyzed.

The typical defense strategy in these cases is to file pre-trial motions challenging the reliability, and hence admissibility, of expert testimony regarding recovered memories. In some cases, these motions are filed as early as the preliminary injunction stage. Reliability issues are also raised in motions to dismiss and for summary judgment.

Usually, the defense also seeks to offer its own "expert" testimony to counter the plaintiff's scientific evidence that the mind can avoid or repress traumatic information and then recall it years later.

The plaintiff's best approach is to anticipate this defense strategy and take the first step by filing a motion to exclude the defendant's evidence. Plaintiffs should file this motion early to persuade the court that the defendant's assets should be attached because the claim has merit.

While there is not yet a reported court ruling on this type of motion, this strategy will likely work as a preemptive strike against inevitable attacks on the plaintiff's experts. It will also provide judges with accurate information about the scientific reliability of traumatic memory evidence.

Defense use of Daubert

To support their efforts to exclude recovered memory evidence, defendants generally rely on the U.S. Supreme Court decision in Daubert V. Merrell Dow Pharmaceutical, inc.[1] Under Daubert, the proponent of an expert opinion based on scientific knowledge must establish the opinion's reliability and relevance before it may be admitted. Whether the proponent has satisfied these requirements "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."[2]

The relevance prong is fairly straight-forward. As the Court noted, "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, nonhelpful."[3] Defining "helpfulness" in Daubert, the Court said there must be a "valid scientific connection to the pertinent inquiry as a precondition to admissibility."[4]

The reliability prong is more problematic. Most courts properly read Daubert to determine reliability by examining the integrity of the methodology behind the opinion. However, Daubert's application has been awkward in recovered memory cases because the decision discussed scientific reliability in a toxic tort case involving objectively testable "hard" science. Daubert's indicators of reliability have limited value when the testimony at issue is rooted in behavioral or "soft" sciences.

It would be reasonable for a court to rule that classic scientific principles cannot resolve the reliability question in recovered memory cases. But, if an attempt is made to determine reliability, traumatic memory research should be judged by standards different than those applied in Daubert. For example, a court might apply the standards used to determine the admissibility of diagnoses listed in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Published by the American Psychiatric Association, this book is the foremost diagnostic manual of the mental health profession.

In a small but disturbing trend, some courts read Daubert to require the plaintiff to demonstrate the scientific reliability not only of expert testimony involving traumatic memory science, but also of lay testimony. This effectively requires the plaintiff to prove the reliability of his or her own memory. In effect, some courts have required plaintiffs to establish their personal credibility to a degree of "scientific certainty," even though personal credibility in a civil trial can be established by a mere preponderance of the evidence.[5]

When a Daubert hearing leads to the exclusion of the expert's opinion and the plaintiff's personal testimony, summary judgment for the defense almost always follows because the plaintiff usually has little, if any, evidence remaining. While a few courts have reached this drastic result, more sophisticated decisions properly acknowledge the overwhelming scientific support for the reliability of recovered memory evidence. In these cases, summary judgment is denied, and the credibility of the plaintiff's testimony is, as it should be, determined by the jury. [6]

Another common defense tactic is to try to have the case dismissed on statute of limitations grounds. Under state laws, the statute of limitations may or may not be tolled in recovered memory cases. Most states have some flexibility, if not in the common law, then by statute.

When the defense challenges a filing delay, courts sometimes undertake a Daubert analysis of traumatic memory science to determine whether the plaintiff should be allowed to rely on expert testimony to justify the delay.

Plaintiff lawyers who understand the defense strategy in these cases can head it off by taking the first step into the recovered memory debate. Filing an affirmative motion to exclude the defendant's expert evidence about "false" memories is an aggressive way to defend traumatic memory science. The motion may be filed according to Daubert's standards or under Federal Rule of Civil Procedure 403 (general helpfulness) or 702 (helpfulness of "scientific, technical, or other specialized knowledge"). Lawyers may also use state law analogues to Daubert and the federal rules.

The defense will seek to introduce as evidence published and unpublished studies purporting to demonstrate the existence of "false memory syndrome." The defense will also seek to introduce research allegedly showing that the mind can be "implanted" with false memories of sexual abuse. Defendants may also try to offer evidence that traumatic events--for example, the space shuttle Challenger explosion--are highly memorable and cannot be repressed.

The plaintiff's motion to exclude this evidence should argue that none of it evaluates whether the mind is capable of repressing child sexual abuse. Accordingly, the evidence should be excluded regardless of scientific reliability because it is irrelevant and cannot assist the jury in deciding issues in the case.

The reality of traumatic memories

Of course, plaintiff lawyers who file this type of motion must understand the research that supports the reliability of traumatic memories and be able to argue its validity effectively.

Research conducted over more than 100 years shows that the mind can avoid conscious narrative or visual recall of traumatic information and recover it years later. Several recent publications provide good overviews of the scientific support for recovered memories of sexual abuse survivors.[7]

In studies dating back to the 19th century, French philosopher and psychologist Pierre Janet found evidence that victims of trauma experienced amnesia for some or all aspects of the trauma.[8] According to Janet, traumatic memories consist of images, sensations, and emotional and behavioral states. This is different from narrative memory--what lay people commonly refer to as memory--otherwise known as symbolic or explicit memory.

Janet observed that intense emotional experiences could lead to continuous and retrograde amnesia that splits off the traumatic memories from ordinary consciousness. The traumatic information is nonetheless retained as "unconscious fixed ideas" that cannot be assimilated into consciousness as long as they have not been acknowledged and understood. Inability to understand and face the trauma causes it to intrude into consciousness in the form of terrifying perceptions, obsessional preoccupations, and anxiety disorders.

Janet's findings have consistently been confirmed in studies over the past century, including several in recent years (see accompanying sidebar). His research helps explain why some visual memories are recovered when stimulated by an emotional reminder of the traumatic event. To some extent, this is like the emotional reminder a person experiences when he or she hears an old love song or smells the cologne or perfume of a loved one.

Because of strong support in the research, recovered memory science has been recognized as valid by a number of medical authorities:

American Psychiatric Association. The DSM-IV recognizes the existence of posttraumatic stress disorder, dissociative amnesia,and dissociative identity disorder [9]. Each of these terms, which refer to what lay people usually call "repression," describe a fragmenting of the brain during a traumatic experience. This fragmenting process illustrates why trauma victims often cannot relate a cohesive visual narrative of child sexual abuse and why sometimes the memories of those incidents resemble seemingly unconnected and sometimes objectively unbelievable pieces of events.

These diagnoses reflect a well-established scientific recognition that the mind can avoid conscious visual recall of traumatic experiences. In most cases, the mere fact that these diagnoses are listed in the DSM-IV should be ample evidence to establish the reliability of expert scientific testimony about recovered memories.

The association has also issued a formal "Statement on Memories of Sexual Abuse," which noted, Children and adolescents who have been abused cope with the trauma by using a variety of psychological mechanisms. In some instances, these coping mechanisms result in a lack of conscious awareness of the abuse for varying periods of time. Conscious thoughts and feelings stemming from the abuse may emerge at a later date.[10]

American Medical Association. A report of the AMA's Council on Scientific Affairs confirmed that there are cases in which amnesia resulted from childhood sexual abuse and that the "recovered memories proved to be correct."[11]

British Psychological Society. This organization issued a working group report that called the false memory position on repression "extreme." According to the report, the scientific evidence reveals that between one-third and two-thirds of abuse victims had periods when they "totally or partially forgot the abuse." The report also noted that there is "much less evidence on the creation of false memories."[12]

American Psychological Association. A recent association report acknowledged that "it is possible for memories of abuse that have been forgotten for a long time to be remembered." [13]

Defense evidence

To counter this overwhelming evidence that the mind is capable of repressing traumatic memories of child sexual abuse, defendants will attempt to have their experts testify about "false memory syndrome," the implanting" of "false memories," and the "highly memorable nature" of traumatic events. Plaintiff lawyers can makea strong case that none of these is reliable or relevant to child sex abuse cases.

False memory syndrome. This simply does not exist as a recognized medical condition. The phrase was coined by the False Memory Syndrome Foundation, an organization formed to provide legal and emotional support to those accused of sexual abuse.

While nobody would argue that memory is perfect, imperfection is hardly enough to merit recognition of a medical syndrome. Indeed, the DSM-IV nowhere recognizes this condition, and no studies or research exists to suggest that anyone suffers from it.

Defense experts sometimes try to demonstrate that false memories exist because people have been known to allege that they were sexually abused as children, only to recant later.

While recantations do occur, albeit infrequently, they usually occur because the victim was rejected by his or her family, because the memory was too painful to manage, or because the victim was threatened. Sometimes, a victim agrees to recant his or her story as part of a confidential settlement. Whatever the motivation for recantations, this hardly demonstrate the existence of "false" memories.

Given the lack of any scientific basis for false memory syndrome evidence, testimony about the syndrome clearly cannot satisfy Daubert's reliability prong. Moreover, this testimony has no probative value in most of these cases. Without probative value or scientific integrity, this testimony should be excluded.

"Implanted" memories. Defense experts often testify about studies showing that people are suggestible and may be misled to believe, for example, that they saw a certain color or witnessed a particular event. These studies do not involve protracted, secret child sexual abuse, so the testimony has no bearing on most recovered memory cases.

Moreover, there is no scientific evidence to suggest that the mind is capable of being "implanted" with wholly false memories of sexual abuse. In a recent study, scientists tried to mislead adult test subjects to believe that they had been lost in a shopping mall as children. They also tried to convince them that they had experienced rectal enemas as children.

While 3 out of 20 subjects erroneously claimed to have been lost in the mall (a relatively common and familiar experience),no subjects would erroneously agree that they had had a rectal enema.[14]

Defense experts, nevertheless, will try to testify that it is possible to implant false memories of sexual abuse based simply on the fact that human beings are vulnerable to suggestion. To be sure, advertising would not exist if people were not suggestible to some degree. However, persuading a person to buy a product is a far cry from implanting a wholly false memory of rape.

The highly memorable nature of traumatic events. Defense experts will try to offer anecdotal testimony about reactions to traumatic public events like the Challenger explosion and the assassination of John F. Kennedy. They seek to prove that these experiences are highly memorable and not capable of being repressed. But these public events in no way compare with the highly personal and often protracted trauma of child sexual abuse.

Even if the testimony that the defendant's experts wish to offer could be seen as originally relevant in some cases, courts could exclude it because it imposes on the jury's function of determining the credibility of a witness.

This evidence will confuse, mislead, and unfairly prejudice the jury against the plaintiff, and it will needlessly consume the court's time in the trial of collateral issues.

Aggressive Strategy

Overwhelming scientific evidence demonstrates that the mind is capable of avoiding conscious recall of traumatic memories of sexual abuse and then recovering them. Whether the mind behaved in this manner in a particular case should be an issue for the jury.

The defendant's approach in these cases to counter well-established science with tangential research. This tactic threatens to deny sexual abuse victims their day in court by questioning their personal credibility under the guise of seeking "scientific reliability."

Plaintiff attorneys who pursue an aggressive litigation strategy that anticipates this defense will help level the playing field. The key is to support the plaintiff's case by providing the court with overwhelming evidence of the reliability of traumatic memories.

Supportive studies on recovered memories

The following research studies, among others, support the reality of traumatic memory loss as a result of sexual abuse. These studies should be included in the plaintiff's motion to exclude testimony by the defense on so-called false memories.

-F.Albach et al., Memory Recovery of Childhood Sexual Abuse, Dissociation (1997, in press)

-J. Briere & J. Conte, Self-reported Amnesia for Abuse in Adults Molested in childhood, 6J. Traumatic Stress 21 (1993)

-A. W. Burgess et al., Memory Presentations of Childhood Sexual Abuse, 33 J Psychosocial Nursing & Mental Health Servs. 9 (1995)

-C. Cameron, Women Survivors Confronting Their Abusers: Issues, Decisions and outcomes, 3J. child Sexual Abuse 7-35 (1994)

-DM. Elliott & J. Briere, Posttraumatic Stress Associated with Delayed Recall of Sexual Abuse: A General Population Study, 8J. Traumatic Stress 629 (1995)

-Shirley Feldman-Summers & Kenneth S. Pope, The Experience of "Forgetting" Childhood Abuse: A National Survey of Psychologists, 62 J. Consulting & Clinical Psychol 636 (1994)

-Judith Lewis Herman & Emily S. Schatzow, Recovery and Verification of Memories of Childhood Sexual Trauma, 4 Psychoanalytic Psychol. 1 (1987)

-Richard P. Kluft, The Argument for the Reality of the Delayed Recall of Trauma, in TRAUMA AND MEMORY: CLINICAL AND LEGAL CONTROVERSIES 25 (Paul S. Appelbaum et al. eds., 1997)

-Elizabeth F. Loftus et al., Memories of Childhood Sexual Abuse: Remembering and Reprising, 18 Psychol. Women Q 67 (1994)

-Melissa A. Polusny & Victoria M. Follette, Remembering childhood Sexual Abuse: A national Survey of Psychologists' Clinical Practices, Beliefs, and Personal Experiences, 27 Prof. Psychol.: Res. & Prac. 41 (1996)

-Catherine M. Roe & Mark F. Schwartz, Characteristics of Previously Forgotten Memories of Sexual Abuse; A Descriptive Study, 24 J. Psychiatry & L. 189 (1996)

-T.A. Rosler & T.W. Wind, Telling the Secret: Adult Women Describe Their Disclosures of Incest, 9 J. Interpersonal Violence 327-38 (1994)

-Lenore Terr, What Happens to Early Memories of Trauma? A Study of Twenty children Under Age Five at the Time of Documented Traumatic Events, 27 J.Am. Acad. Child 7 Adolescent Psychiatry 86 (1988)

-B.A. van der Kolk, The Body Keeps the Score: Memory and the Evolving Psychobiology of Postraumatic Stress, 1 Harv. Rev. Psychiatry 253 (1994)

-B.A. van der Kolk & R. Fisler, Dissociation and the Fragmentary Nature of Traumatic Memories: Overview and Exploratory Study, 8 J. Traumatic Stress 505 (1995)

-L.M. Williams, Recall of childhood Trauma: A Prospective Study of women's Memories of Child Sexual Abuse, 62 J. Consulting & Clinical Psychol. 1167 (1994)

*********

Notes:

1. 509 U.S. 579 (1993).

2. Id. at 592.

3. Id. at 591 (quoting 3 JACK B. WEINSTEIN ET AL., WEINSTEIN'S EVIDENCE 702{02}l, at 702-18(1988)).

4. Id. at 592.

5. State v. Hungerford, 1997 N.H. Lexis 64, *24 (N.H. 1997); S.V. v. R.V., 933 S.W.2d 1, 18-20 (Tex. 1996) (but see powerful dissent by Justice Owen).

6. Shahzade v. Gregory, 923 F. Supp. 286 (D. Mass. 1996); see Hoult v. Hoult, 57 F3d 1(1st Cir.1995); Isely v. Capuchin Province, 877 F Supp. 1055 (E.D. Mich. 1995); Phinney v Morgan, 654 N.E.2d 77, 80 (Mass. App. Ct), review denied, 656 N.E.2d 1258 (Mass. 1995); Ault v. Jasko, 637 N.E2d 870,872 (Ohio 1994).

7. DANIEL BROWN. MEMORY TRAUMA TREATMENT AND LAW (1997); JENNIFER J. FREYD, Betrayal Trauma: The Logic Of Forgetting Childhood Abuse (1996); B.A. van der Kolk & R. Fisler, Dissociation and the Fragmentary Nature of Traumatic Memories: Overview and Exploratory Study, 8 J. TRAUMATIC STRESS 505(1995).

8. See generally PIERRE JANET, LAUTOMATISME PSYCHOLOGIQUE (1889).

9. DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS §300.12, at 478-81, §309.81. at 424-29, §300.14, at 487(4th ed. 1994).

10. American Psychiatric Ass'n, Statement On Memories Of Sexual Abuse (1993).

11. COUNCIL ON SCIENTIFIC AFFAIRS. AM. MED. ASS'N, MEMORIES OF CHILDHOOD ABUSE (1994).

12. BRITISH PSYCHOLOGICAL SOC'Y, REPORT BY THE WORKING GROUP ON RECOVERED MEMORIES (1995).

13. AMERICAN PSYCHOLOGICAL ASS'N. FINAL REPORT FROM THE WORKING GROUP ON INVESTIGATION OF MEMORIES OF CHILDHOOD ABUSE (1996).

14. K. Pezdek, Planting False Childhood Memories: When Does It Occur and When Does It Not? paper presented at the 36th Annual Meeting of the Psychonomics Society (Nov. 10-12, 1995).

Wendy J. Murphy is of counsel with the Boston law firm of Brody, Hardoon, Perkins & Kesten. She acknowledges the contributions of Professors Cynthia Bowman and Elizabeth Mertz of Northwestern University School of Law, who generously shared with the author a legal brief in which they compiled much of the scientific research on recovered memories. ©1997, Wendy J. Murphy; Used By Permission.

Murphy, Wendy J. (1997). Debunking "false memory" myths in sexual abuse cases. Trial: Journal of the Association of Trial Lawyers of America, November, 1997. Retrieved March 18, 2010 from the World Wide Web: http://fmsf.com/murphy.shtml

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