Dahlia Lithwick of Slate has this column on whether a witness who tells you that s/he was molested years ago as a child but never mentioned it because the memory was "repressed" all this time and was only brought out during talk therapy or after hypnosis should be believed.
This is a subject of particular interest, as I've had occasion to deal with accusations so based, and have written about it in articles posted to this site on the character of memory. Do our minds work like tape recorders, in which if you peel away some layer of emotion, and the memory is waiting there, intact, ready to be unfurled in all its living glory and oh, so reliable? That's what believers in repressed memory want to believe, and want you to believe.
Or is memory more like reconstructing "My Fair Lady," long after the production has shut down and the props used elsewhere.
Memory is more like reconstruction, where some of the parts are missing. The left-brain's interpreter, according to Michael S. Gazzaniga, neuropsychologist, in The Mind's Past (U.C., 1998), fills in the missing pieces, making them up out of whole-cloth based on what is expected according to current need and belief. All lies, in other words.
Allegedly "repressed" memory is based on the idea that if something terrible happens to you as a child, you are somehow able to patch it over and forget about it. WWII concentration camp survivors would probably love to be able to do that. With sex its somehow said to be different. I've had jurors in rape prosecutions ask to be excused as older women because they'd been sexually assaulted while young and the prospect of re-dealing with the memory troubled them so.
Sigmund Freud, the toppled-God of 20th century psychology, thought there was something to the idea, having invented it. How is it possible that he could have invented a theory of mind that everyone else before him missed, I wonder, including Aristotle the biologist. Karl Popper gives Freud his due by pointing out that little that Freud hypothesized was capable of scientific testing, which made it pseudo-science. With Freud's theories one could hypothesize contradictory results, both either true or both false. Other than that, fascinating.
Freud has been supplanted in modern psychiatry by pills.
The problem is at its worst when the witness is unable to provide the original source for a alleged memory, making it both groundless and worthless on which to build a legal case, such as a criminal prosecution or suit for money damages.
See Daniel L. Schacter's The Seven Sins of Memory (Houghton Mifflin, 2001). He's Chair of the Harvard U. Dept. of Psychology.
See also False Memory Syndrome. There was a whole institution set up to deal with all the false memories that fed on each other to form a huge wave of false prosecutions during the 1980s. Researchers Elizabeth Loftus and Stephen Ceci showed experimentally how children could be suggested to "remember" things that had never happened, simply by talking to them as though certain false events had happened, reassuring them that their friends saw, or experienced it.
Most false accusations of child sexual abuse, when not the outright lies of a motivated young person, are enabled with the support of an adult confederate who is the real motivator and energy behind pushing the falsity to the limit.
Google this site for further references.
See also:
McMartin Pre-School Case
Kern County, California Attorney-General's report
Little Rascals Day Care Case, N. or S. Carolina
Jordan, Minnesota
Devereaux, 9th Circuit, State of Washington prosecutions
"Psychiatric Misadventures," article in American Scholar, by the head of the Dep't of Psychiatry at Johns Hopkins U. Medical School;
Richard J. Ofshe, U.C. Dept. of Sociology, false confessions
Lawrence Wright, The New Yorker Magazine, on the Thurston County, State of Washington prosecutions;
False Memory Syndrome Institute, Philadelphia
Ms. Lithwick has this link to investigator Paul Ciolino, Chicago, IL, who has a number of excellent suggestions as to what to look for when investigating a false accusation based on allegedly recovered memory, i.e. formerly repressed memory until somehow either uncovered, or more likely, suggested by a motivated talk-therapist.
There's money in talk-therapy, remember. It became a cottage-industry, supported by Victim-Witness money from the State of California and perhaps other states as well. The talk-therapist couldn't be paid unless she opined that her patient had been the victim of a violent crime, such as sexual abuse as a child. There was an incentive first to suggest and then to confirm as found a claim of memory, as in, "Oh, so that's why I'm all messed up, I was molested by my father when I was in parochial school, now I get it, thanks. I'm not messed up because I made the wrong choices of men, alcohol, drugs, gurus, communes, and talk therapists. It's all my father's fault. And my Mom's."
I had a case like that. Police were checking the basement for dead bodies. The FBI refused to dig up their parking lot, the site of a former house where more bodies were said to be buried. No fools, those FBIs. The daughters had sued their parents, telling a story of how the parents held witches covens in the basement where they dressed in hooded robes and daddy sacrificed all these babies and molested the daughters. Mom was sued on a theory of failing to protect. The parents were in their late sixties. Had sent their daughters to Catholic school to protect them from the evils of the world. The daughters managed to find it anyway, with the help of talk therapists and a women's talk therapy group which helped them come to believe.
The evil was in themselves, it turned out.
Odd, how that seems to work, isn't it.
[Here's a better link to the Ciolino article on investigation referred to below.].
To read the quoted Ciolino item in the continuation below (referred to above), you may have to hit Ctrl-+ to enlarge the font display, and Ctrl-minus to reduce again, and disregard the formating issues.
Paul J.
Ciolino, Chicago, ILThe Repressed Memory Myth
| "All
crimes against the State are punished here with the
utmost severity; but if the person accused makes his
innocence plainly to appear upon his trial, the accuser
is immediately put to an ignominious death; and out of
his goods or lands the innocent person is quadruply
recompensed for the loss of his time, for the danger he
underwent, for the hardship of his imprisonment, and for
all the charges he hath been at in making his
defense." - A Voyage to Lilliput |
You may well get justice in Lilliput, but you are going to go through hell to get it in the United States. Although a victim of false allegations may have a valid civil rights claim for wrongful charges pressed against him, those most responsible for the persecution usually escape punishment.
Prosecutors and mental health workers try to hide behind a cloak of immunity. And even if that cloak can be pierced by showing that they abandoned their official roles and thereby lost their immunity, it is highly unlikely that they will ever be held personally responsible for the damages. If anyone pays, it will be the taxpayers. The taxpayers pay because when a judgment is entered against a prosecutor or mental health worker, their employer picks up the expense.
This problem is shown with fearful clarity in cases involving repressed memory and sexual abuse allegations. Most judges assigned to these cases behave like ex-officio members of the prosecution. They do not extend to the defendant the presumption of innocence; rather there is a presumption of guilt, which is often impossible to overcome.
"False Memory Syndrome (FMS) is a nonsociologically unrecognized term referred to an unestablished phenomenon whereby an unknown number of incompetent, untrained therapists, implant erroneous memories of childhood abuse into the vacuous minds of an unspecified number of unsuspecting, fantasy-prone, suggestible, female clients."1
In over 1,000 child sexual abuse, rape and other types of cases in which I have been personally involved, I have not met one real victim who has forgotten that they were assaulted and then remembered it at a later date. Further, the dozens of law enforcement officers and other investigators with whom I have personally dealt, who exclusively investigate these types of cases, have yet to find a victim who has forgotten a violent assault which they had personally experienced.
Quite the contrary, violent crime is an experience that is never forgotten. It is often ignored, or not spoken about, but it is never forgotten.
This article will assist you in defending a client charged in a criminal matter as a result of an FMS claim, or to assist a plaintiff in pursuing civil charges against those who create a memory of abuse and falsely accuse your client.
Exposing the Monster
An accusation based on Recovered Memory Syndrome (RMS) comes at your client like a runaway freight train. Unfortunately, it often comes disguised in the form of an anonymous phone call, an unsigned letter, or at a family meeting which your client has innocently agreed to attend to help facilitate the healing of his or her adult child who is in the midst of some sort of therapy. But when it comes, it comes with all the strength and devastation of a tornado—the announcement being made without warning. Your client is usually male, has raised a family, is retired, and is trying to enjoy the golden years.
Recovered Memory Syndrome
Recovered Memory Syndrome (RMS) is the popular celebrity cause of the 90’s. Have an eating disorder?—RMS. Don’t get along with your parents and siblings?—RMS. Having marital difficulties?—of course, RMS!
RMS is the perfect diagnosis for the person who has screwed up his or her life. In keeping with the motto, "I have problems, but I’m not responsible for any of them," RMS offers the perfect excuse for every ailment. It is the employment act that gives therapists years of income.
Do you find yourself wondering why many therapists never fully document the case? Why there are no videotapes of these sessions when the most horrible, outrageous allegations are made? Why there are no audiotapes? Why there are no third parties present? Why notes are destroyed or lost? Why this phenomenon isn’t officially recognized by the psychiatric community?
All of the above are questions which the therapist does not like to answer. Jurors, especially, wonder why these steps are not taken to ensure some validity to the allegations.
The last thing the therapist wants you to see are the methods used in getting a client to make these allegations. The reason for that is, of course, the fear of a malpractice suit.
A recent national survey of clinical psychologists found that 1,908 clinical psychologists reported treating no cases of ritual abuse and 785 treating only one or two cases.2 However, only sixteen of them reported having treated over a hundred cases of ritual abuse each, perhaps indicating that a few therapists may be highly predisposed to see disturbed people as suffering from the effects of satanic cult ritual abuse.
No scientific data has ever been published which supports the existence of RMS. What does feed this monster is rumor, innuendo, slander, and the unethical therapists who go out and beat the drum for it.
David Holmes examined sixty years of research and could not find one scientific study showing that memories can be repressed then unearthed in their pristine state. He described most of the psychological literature on repression as impressionistic, anecdotal, and speculative. Holmes found no controlled laboratory study support for the concept of repressed memory.3
Dr. Elizabeth Loftus, considered by many to be the foremost expert on memory in the United States today, writes:
Sympathetic therapists like to argue that the repressed memory controversy has been created by pedagogic professors who have no sense of the issue as having a human face. On the contrary, when these traumatic memories are accepted uncritically by therapists, social workers, police officers and attorneys in the absence of any corroborating evidence, the result is the wholesale destruction of families. The ultimate tragedy is that society will begin to disbelieve the cases of genuine abuse that need its vigilance.4
When you, or your client, are first confronted with the accusations of abuse, it is often uncertain how these accusations came to light. That is because when the accusation of abuse is made to the grand jury or the prosecutor, the therapist and alleged victim will not usually reveal the accusation to be a repressed memory, but will claim that it is a memory that the "victim" is just now able to talk about due to the expertise of the therapist. Withholding this information is designed to make the "victim" appear to be more credible.
What you will not read in the grand jury transcripts, or civil suit pleadings, is that the alleged victim had initially consulted this miracle worker therapist for an eating disorder, or perhaps a marital problem, that could have been treated for around $2,000. What occurs all too frequently is that the therapist offers a "victim" a single unambiguous explanation for complex problems and a very special identity as a "survivor." It also turns that $2,000 eating disorder into a $100,000 multiple-personality disorder. Often the charge is gender-motivated. Since most charges are brought by adult women against male relatives, some critics believe the allegations are prompted by a radical feminist agenda.
But, whatever the reasons, this freight train has an engineer, and that engineer wants everyone to know who is driving this train, but not what his/her qualifications are for driving it.
License and Educational Qualifications
Nurses, doctors, lawyers, and hair stylists are almost without exception always required to undergo stringent background investigations and difficult examinations so that they can practice their craft. Not so with therapists. Twenty-eight states and D.C. have no licensing requirements. For example, in Illinois there is no licensing requirement, background check, or any agency which oversees the qualifications of, or complaints against, a therapist. In contrast, all clinical psychologists in Illinois are licensed. As 90% of the therapists who are proponents of RMS are not registered psychologists, they are able to make diagnosis with impunity. They are generally protected from civil suits, especially when criminal charges are brought.
However, there is a recent movement towards accountability. In May of 1994, in a case of first impression, a Napa County, California jury awarded $500,000 to a father who had been accused of incest. The father, Gary Ramona, had sued two therapists, a social worker and a psychiatrist who had relied on drugs, hypnosis and other techniques to get Ramona’s daughter to claim she had repressed memories concerning incest. As a result of the allegations, Ramona lost his job, his home and his family.
When the investigation turns to academia, never assume that the stated or declared degree received is in fact the one that was received. Often, close examination will reveal that a declared B.A. in psychology was, in fact, a B.A. in education, or even physical education. At a deposition or a trial, it is always useful to have certified copies of the subject’s official college transcript. The transcript may provide fertile areas for cross examination during the voir dire phase of any trial.
Killing the Allegation
One of the most substantial issues in these cases is: What did the therapist do to verify the patient’s or alleged victim’s story? A responsible forensic psychologist will always want any and all written materials available for a complete picture and will insist on seeing the accused and all other available witnesses.
Seldom will the therapist request any of this information, seeing his/her job only as to treat, rather than to investigate. This may be commendable, but when one starts acting as an advocate, advisor, confidant and expert witness, the responsibility should widen.
In your attempts to disprove this fairy tale, your strategy should also include:
Contact the Plaintiff’s childhood pediatrician. (The pediatrician’s record will often reflect severe ailments, accidents, course of treatment, drugs taken, etc.). Ask the accused’s family members to submit to polygraph tests. (Any accused or other significant party in your case who passes a legitimate polygraph examination helps bolster their explanation or denial. In most jurisdictions, this is considered exculpatory and thus all or part is admissible.) Obtain grade school attendance records and grades. (School records will expose attendance and disciplinary problems. They will also show special education evaluations, parent-teacher conferences and stability or lack thereof.) Contact and interview childhood friends of the plaintiff.5 (Childhood friends and relatives will be able to tell you the alleged victim’s reputation for truthfulness and honesty. They will also be able to recall any significant emotional events that occurred in the alleged victim’s life.)
"Scorched Earth Investigation" is nothing more than doing your job. You are not manipulating data, nor are you participating in character assassination. Your investigation may even help substantiate a claim of abuse, perhaps not against your client, but another unnamed party. If the therapist if legitimate, a close examination of their credentials and motives will be welcomed. If the therapist is a fraud or fighting for a cause, you and your investigation will be attacked in every way possible. The only way to avoid this is to always act within the law and the ethics of your profession. Always position yourself to remain above the fray. If you present yourself as the finder of facts and a competent professional, you will be able to keep the focus of the case on the therapist, rather than on you or your organization.
Scorched Earth Investigation After you have received your retainer, the first order of business is to discover everything you can about the person who has diagnosed the case as RMS. In either criminal or civil cases, you will have subpoena power. The subpoena for the therapist should demand the following materials:
After you have gathered these materials, you will have to verify all of the information. The most critical piece of information—the one that will be most closely examined—is the therapist’s résumé or curriculum vitae. This will list the therapist’s past employment, licensing information, articles authored, education and so forth. The two most scrutinized areas should be past employment and education, as they are the most self-serving and "massaged" on a résumé. You will find that you will often be able to prove that the résumé is frequently misleading and occasionally fraudulent. Get into the habit of checking your own experts as well. There should be no surprises at trial! Assume that the other side is checking your expert’s credentials as well. You will also need to find out where this therapist has testified before. Get transcripts whenever they are available. Interview other lawyers who have retained the therapist or have been on the other side. Contact other investigators to see if they have had contact with this therapist. If the therapist has a long established pattern of diagnosing and testifying in this type of case, you will be able to locate other victims of false allegations. They are an invaluable source of intelligence. Always do a NEXUS check on the therapist. Quite often statements will have been made to a friendly interviewer which are outrageous and without merit or truth. Check all civil and criminal records for personal involvement of the therapist in any controversial cases. Always ask former employers for salary information. You will usually be able to prove financial bias in these cases. Your efforts in this area of the investigation are costly, time consuming and, at times, frustrating. However, you will be rewarded if you can prove that the engineer has no qualifications to drive the train. - Paul Ciolino |
De-Mystifying Repressed Memories
Since Steven Cook dropped his sensational $10 million lawsuit against Cardinal Bernardin of Chicago in March of 1994, professionals have been more inclined to closely examine wild charges of sexual misconduct. Suggesting that the most respected member of the Catholic hierarchy was a child molester got even the most disinterested thinking about Repressed Memories.
Once again, the person behind this ludicrous accusation was an unqualified, untrained and unlicensed therapist. The only reason Cardinal Bernardin is not preparing to go to trial today is because the defense investigation exposed these facts.
Michele Moul was the Philadelphia therapist who treated Steven Cook for the stress he was suffering as an AIDS patient. During hypnosis administered by Moul, Cook "recalled" being molested by the Cardinal. Cook’s entire case rested on Moul. When the investigation revealed that Moul’s masters degree in psychology was earned on weekends, from an unaccredited school founded by a New Age Guru who claims to be the embodiment of a divine spirit,6 the case fell apart.
It was also learned that Moul had only completed three of the twenty hours required in a course on hypnotism. Needless to say, when these facts were uncovered, Moul and the ten million dollar lawsuit disappeared!
In many recovered memory cases, the "victim" insists that both parents participated in satanic ritual abuse for years. Prosecutors are very reluctant to become involved in these cases because there is seldom any physical evidence to support these allegations.
Kenneth V. Lanning, an FBI agent with the Behavioral Science Unit in Quantico, Virginia, states:
For at least eight years American law enforcement has been aggressively investigating the allegations of victims of ritualistic abuse. There is little or no evidence for the portion of their allegations that deals with large scale bay breeding, human sacrifices, and organized satanic conspiracies. It is up to mental health professionals, not law enforcement, to explain why victims are alleging things that don’t seem to be true. Mental health professionals must begin to accept the possibility that some victims are alleging things that just didn’t happen and that this area desperately needs study and research by rational, objective social scientists.
There has been such a public backlash against satanic ritualistic allegations that the mental health community has backed away from the subject. However, they have replaced satanic abuse with just good old-fashioned regular sexual abuse and RMS. Some prosecutors have warned therapists that if the alleged victim even mentions satanic abuse they will not participate in the prosecution.
The poster person for the Repressed Memory movement is actress Roseanne Barr. Roseanne’s memories of abuse came after therapy. On the Sally Jesse Raphael Show, Roseanne stated, "I have my first memory of being molested by my mother at six months old." It gets worse. Roseanne has stated that her parents have molested her two sisters, her brother and her daughter. Each of them have taken a very public position in denying these allegations and in the process have become the most famous "abusers" in the United States today.
The aforementioned examples are unusual in that they only involve famous people. The tragedy of Recovered Memory has affected well over several thousand families in the last few years. It is a true epidemic. The only way the epidemic will stop is if competent investigations are conducted by professional investigators.
Finding the Hidden Agenda In most cases there will come a time when you will have an opportunity to closely question the treating social worker, therapist, psychologist, etc. It will be at this point that your background investigation will be invaluable. The following questions are a must if you are to locate that hidden agenda.
After you have eventually secured the answers to these questions, you will have helped expose the Repressed Memory Myth. - Paul Ciolino |
References
1FMS Foundation Newsletter (April 1994). Published by the False Memory Syndrome Foundation, FMS Foundation. {Return to text}
2Buttons, Bette L., Shaver, Philip R., and Goodman, Gail G. Profile of Ritualistic and Religion-Related Abuse Allegations Reported to Clinical Psychologists in the United States. (Available from B. Buttons, Dept. of Psychology, State University of New York, Buffalo, NY) {Return to text}
3D.A. Holmes, The Evidence for Repression: An Examination of Sixty Years of Research; Repression and Dissociation: Implications for Personality, Theory, Psychopathology, and Health, (1990) Chicago University Press., J. Singer ed., pp. 85-102. {Return to text}
4Garry, Maryanne and Loftus, Elizabeth F., Repressed Memories of Childhood Trauma: Could Some of Them Be Suggested?, USA Today (January 1994), pp. 82-84. {Return to text}
5McHugh, Paul (quoted) in Carol McHugh, Suits Claiming Childhood Sex Abuse on Rise: Lawyers, Experts, Question "Recovered Memories", Law Bulletin, April 1994, published by Law Bulletin Publishing Co. {Return to text}
6Woodward, Kenneth L., Petter Annin and Alden Cohen, Was It Real or Memories, Newsweek, March 14, 1994, pp. 54-55. {Return to text}
© Paul J. Ciolino. Printed with permission.
Paul J. Ciolino, CLI, CFE, of Chicago, is considered one of the top criminal defense investigators in the United States. He was the former chief homicide investigator for the State of Illinois, Department of Children and Family Services and is considered an expert on child abuse investigations. Ciolino, who helped pioneer the Necessity Defense, was recently honored by ATLA for his work.
Paul is a former officer in the National Association of Legal Investigators (NALI) and was the recipient of 2nd Place Honors in the the prestigious Editor/Publisher Award Competition last year for the above article. He has had several article published in The Legal Investigator, the news magazine for the National Association of Legal Investigators. This article is a reprint, with permission, from The Legal Investigator, Volume XXIV, No. 2, November, 1994.
Paul can be reached at Paul Ciolino & Associates, 900 W. Jackson, Chicago, IL 60607, (312) 226-6300.
Back
to The
Texas Investigator Online
Comments