Debunking 'false memory'
myths in sexual abuse cases
By Wendy J. Murphy
Murphy, W. (1997, November). Debunking "false memory" myths in sexual abuse cases.
Trial, 54-60.
Introduction. 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 Pharmaceuticals, 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 straightforward. As the Court noted, "[E]xpert testimony which
does not relate to any issue in the case is not relevant and, ergo, non-helpful."/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 laypeople
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 laypeople usually call "repression," describes 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 make a 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, they 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 marginally
relevant in some cases, courts should 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 is 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.
Supported 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.
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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, 6 J. 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, 3 J. Child Sexual Abuse 7-35 (1994).
D.M. Elliott & J. Briere, Posttraumatic Stress Associated with Delayed Recall of
Sexual Abuse: A General Population Study, 8 J. 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. Roesler & 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 & Adolescent Psychiatry 96 (1988).
B.A. van der Kolk, The Body Keeps the Score: Memory and the Evolving
Psychobiology of Posttraumatic 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 (use "Back Button" on browser to return to text)
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], 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, 1820 (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 F.3d 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.E.2d 870, 872 (Ohio 1994).
7. DANIEL BROWN, MEMORY TRAUMA TREATMENT AND LAW (1997, in press);
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, L'AUTOMATISME 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).