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IN THE SUPREME COURT OF PENNSYLVANIA

SITTING AT PITTSBURGH

_________________________

No. 70 W.D. Appeal Docket

No. 71 W.D. Appeal Docket

_________________________

NICOLE L. ALTHAUS, a minor,

by RICHARD T. ALTHAUS and CHERYL RENEE ALTHAUS,
her parents and natural guardians,

and RICHART T. ALTHAUS and CHERYL RENEE ALTHAUS,
in their own right,

Appellees,

v.

JUDITH A. COHEN, M.D., and

UNIVERSITY OF PITTSBURGH WESTERN PSYCHIATRIC INSTITUTE AND CLINIC,

Appellants.

_________________________

BRIEF OF AMICUS CURIAE, FALSE MEMORY SYNDROME FOUNDATION

IN SUPPORT OF APPELLEES

Appeal from the Order of the Superior Court of Pennsylvania dated April 13, 1998 at Nos. 1138 PGH 1996 and 1217 PGH 1996, affirming the Order of the Court of Common Pleas of Allegheny County, dated May 22, 1996 at No. G.D. 92-20893

_________________________
Thomas A. Pavlinic
The Conte Building
116 Defense Highway, Suite 501
Annapolis, MD 2 1401-7037
(410) 974-6004
(410) 974-6019 Facsimile

Counsel for Amicus Curiae,
False Memory Syndrome Foundation


TABLE OF CONTENTS

TABLE OF CITATIONS

INTEREST OF AMICUS CURIAE

STATEMENT OF CASE

ARGUMENT

A. Under certain circumstances a therapist owes the individual accused of sexual abuse a duty of care in the diagnosis and treatment of a patient for supposed sexual abuse

B. Therapy directed at the recovery of memories of childhood sexual abuse is capable of causing foreseeable harm to patients and to the accused

C. Therapy directed at recovering memories of childhood sexual abuse is based on misconceptions about one’s ability to repress and later recover accurate images of the past

D. Techniques widely used in therapies directed at recovering memories of childhood sexual abuse are known to create false memories

E. Therapies directed at recovering memories of childhood abuse are considered neither safe nor effective

F. Certain characteristics of repressed memory therapy create a special relationship with the accused third party in a way that other therapy modalities do not

G. Following accepted guidelines for practice does not place undue burden on therapists

CONCLUSION

ACKNOWLEDGMENT OF ASSISTANCE

APPENDICES:

Appendix I - List of FMSF Advisory Board Members

Appendix II - Stocks, J.T. (1998), "Recovered Memory Therapy: A dubious practice technique," Social Work, 43:5:423-435.

Appendix III - Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:121-126.

Appendix IV - Pope, H.G., Oliva, P.S. and J.I. Hudson (1999) "The scientific status of research on repressed memories," in Faigman, D.L., et al (Eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, St. Paul: West Group, pp. 115-155.

Appendix V - Report to the Mental Health Subcommittee, Crime Victims’ Compensation Program, Department of Labor. and Industries, State of Washington. Crime Victims’ Compensation and Repressed Memory, May 1, 1996.


TABLE OF AUTHORITIES

CASES:

Ault v. Jasko, 637 N.E.2d 870 (Ohio, 1994)

Caryl S. v. Child & Adolescent Treatment, 614 N.Y.S.2d 661 (Sup. Ct. 1994)

Dalrymple v. Brown, 701 A.2d 164 (Pa., 1997)

Doe v. Maskell, 679 A.2d 1087 (Md. 1996), cert. denied, 117S. Ct. 770 (1997)

Doe v. Archdiocese of Milwaukee, 565 N.W.2d 94 (1997)

Hungerford v. Jones, 1998 N.H. LEXIS 94, (N.H., 1998)

Jaffee v. Redmond, 518 U.S.__, 116 S.Ct. 1923 (1996)

John BBB Doe v. Archdiocese of Milwaukee, 565 N.W.2d 94 (Wisc., 1997)

Kelly v. Marcantonio, 678 A.2d 873 (R.I., July 11, 1996)

Lemmerman v. Fealk, 534 N.W.2d 695 (Mich., 1995)

John BBB Doe v. Archdiocese of Milwaukee, 565 N.W.2d 94 (Wisc., 1997)

Sawyer v. Midelfort, 579 N.W.2d 268, (Wisc., App. 1998)

S.V. v. R..V., 933 S.W.2d 1 (Tex., 1996)

State of New Hampshire v. Hungerford, 697 A.2d 916 (N.H., 1997)

State of New Hampshire v. Walters, 698 A.2d 1244 (N.H., 1997)

United States of America v. Judith A. Peterson, Ph.D., Richard E. Seward, M.D., George Jerry Mueck, Gloria Keraga, M.D., Sylvia Davis, M.S.W., U.S.D.C., S.D.,Texas, Houston Div., Crim. No. H-97-237. Indictment dated October 29, 1997

TEXTS AND TREATISES:

American Medical Association (1993, June), Resolution No. 504, "Misuse of hypnosis and other techniques of ‘Memory Enhancement/Creation.’"

American Medical Association: Report of the Council on Scientific Affairs (1994), C.S.A. Report 5-A-94. "Memories of childhood abuse," Action of the AMA House of Delegates 1994 Annual Meeting

American Psychiatric Association, Board of Trustees (1993), "Statement on memories of sexual abuse," approved by the Board of Trustees of the American Psychiatric Association on December 12, 1993

American Psychological Association (1995), "Questions and answers about memories of childhood abuse," Washington, D.C.: American Psychological Association

American Psychological Association, Council of Representatives, Working Group on Investigation of Memories of Child Abuse (November 11, 1994), Interim Report

Australian Psychological Society Limited, Board of Directors (1994), "Guidelines relating to the reporting of recovered memories"

Bass, E. and L. Davis (1988), The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse, New York: Harper & Row

Baker, R.A. (ed.) (1997) Child Sexual Abuse and False Memory Syndrome, Prometheus Books

Beahrs, J.O., J.J. Cannell, and T.G. Gutheil (1996), "Delayed traumatic recall in adults: A synthesis with legal, clinical, and forensic recommendations," Bul.Am. Acad. Psychiatry Law, 24:1:45-55

Brandon, S., J. Boakes, D.Glaser, R. Green (1998) "Recovered memories of childhood sexual abuse: Implications for clinical practice," British Journal of Psychiatry, 172:296-307

Brenneis, C.B., (1997) Recovered Memories of Trauma: Transferring the Present to the Past, New York: International Universities Press, Inc

Butler, K. (1995, March/April) "Caught in the cross fire," The Family Therapy Networker, 19:24-34, 68-79

Cahill, L. and J.L. McGaugh (1995), "A novel demonstration of enhanced memory associated with emotional arousal," Consciousness and Cognition, 4: 410-421

Campbell, T.W. (1995), "Repressed memories and statutes of limitations: examining the data and weighing the consequences," American Journal of Forensic Psychiatry, 16:2:25-51

Canadian Psychiatric Association (1996). "Position statement: Adult recovered memories of childhood sexual abuse," dated March 25, 1996

Carro, J.L. & J.V. Hatala (1996) "Recovered memories, extended statutes of limitations and discovery exceptions," 23 Pepp. L. Rev. 1239

Ceci, S.J. (1995) "False beliefs: Some developmental and clinical considerations", in Schacter (ed.) Memory Distortions: How Minds, Brains, and Societies Reconstruct the Past, Harvard Univ. Press: Cambridge

Clute, S. (1993) "Adult survivor litigation as an integral part of the therapeutic process," Journal of Child Sexual Abuse, 2:121-127

Courtois, C.A. (1997), "Informed clinical practice and the standard of care; Proposed guidelines for the treatment of adults who report delayed memories of childhood trauma," in Read and Lindsay (eds.) Recollections of Trauma, Plenum Press: New York, 337-369

Dwyan, J. (1995), "The illusion of familiarity: An alternative to the report-criterion account of hypnotic recall," The International Journal of Clinical and Experimental Hypnosis, XLIII:2: 194-211

False Memory Syndrome Foundation Working Paper, #830, FMS Foundation: Philadelphia

Finer, J.J. (1996-97), "Therapists’ liability to the falsely accused for inducing illusory memories of childhood sexual abuse: Current remedies and a proposed statute," Cleveland- Marshall College of Law Journal of Law and Health, 11:1 & 2:46-131

Frank, R.A. (1996), "Tainted therapy and mistaken memory," Applied and Preventive Psychology, 5:135-164

Frankel, F.H. (1996), "Dissociation: The clinical realities," American Journal of Psychiatry, 157:7:64-70

Frankel, F.H. (1993), "Adult reconstruction of childhood events in the multiple personality literature," American Journal of Psychiatry, June 1993, 150:6:954-958

Fredrickson, R. (1992) Repressed Memories: A Journey to Recovery from Sexual Abuse, New York: Fireside/Parkside

Freeland, A., et al. (1993), "Four cases of supposed multiple personality disorder: Evidence of unjustified diagnoses," Canadian Journal of Psychiatry, 38:245-247

Ganaway, G.K. (1995), "Hypnosis, childhood trauma and dissociative identity disorder: Toward an integrative theory," International Journal of Clinical and Experimental Hypnosis, XLII:2:l27-144

Ganaway, G.K. (1989) "Historical versus narrative truth: Clarifying the role of exogenous trauma in the etiology of MPD and its variants," Dissociation, 2:205-220

Giannelli, P.C. (1995), "The admissibility of hypnotic evidence in U.S. Courts," International Journal of Clinical and Experimental Hypnosis, XLIII:2:212

Goldzband, M.G. (1995), "The hottest topic," Psychiatric Annals, 25:8:477-485

Good, M.I. (1992), "The reconstruction of early childhood trauma: Fantasy, reality, and verification," JAPA, 42:1:79-101

Green, R. (1996), "Special Report: False memory syndrome," The Psychiatry Forum, 16:i-vi

Greer, E. (1998) "Tales of sexual panic in the legal academy: The assault on reverse incest suits," 48 Case Western Reserve 513

Halleck, S.L., et al. (1992), "The use of psychiatric diagnoses in the legal process: Task force report of the American Psychiatric Association," Bull. Am. Acad. Psychiatry Law, 20:4:481-499

Herman, J. (1992) Trauma and Recovery, New York: Basic Books

Holmes, D. (1990), "The evidence for repression: An examination of sixty years of research," in J. Singer (ed.), Repression and Dissociation, Chicago: University of Chicago Press

Hyman, I.E. and E.F. Loftus (1997) "Some people recover memories of childhood trauma that never really happened," in Appelbaum and Uyehara (eds.) Trauma and Memory: Clinical and Legal Controversies, Oxford Univ Press: New York

Johnston, M. (Summer 1997) "Spectral evidence," Letters & Comments, Judges Journal, p. 75-76

Kihlstrom, J.F. (1997), "Suffering from Reminiscences: Exhumed memory, implicit memory, and the return of the repressed," in M.A. Conway (ed.), Recovered Memories and False Memories

Kihlstrom, J.F. (1996) "The trauma-memory argument and recovered memory therapy," in Pezdek & Banks (eds.), Trauma and Memory, Academic Press: San Diego, 296-311

Knapp, S.J., and VandeCreek, L. (1997) Treating Patients with Memories of Abuse: Legal Risk Management, American Psychological Association: Washington D.C., pp.77-88

Laurence, J.R. and C. Perry (1983), "Hypnotically created memory among highly hypnotizable subjects," Science, 22:523-524

Lief, H.I. and J.M. Fetkewicz (1995), "Retractors of false memories: The evolution of pseudomemories," Journal of Psychiatry and Law, 23:411-435

Lindsay, D.S. and J.D. Read (1994), "Psychotherapy and memories of childhood abuse: A cognitive perspective," Applied Cognitive Psychology, 8:4:281-338

Lindsay, D.S. and J.D. Read (1995), ‘Memory work’ and recovered memories of childhood sexual abuse: Scientific evidence and public, professional, and personal issues," Psychology, Public Policy, and the Law, 1:4:846-908

American Medical Association (1993, June), Resolution No. 504, "Misuse of hypnosis and other techniques of ‘Memory Enhancement/Creation’ ".

Loftus, E.F. (1997) "Memory for a past that never was," Current Directions in Psychological Science, 6:3:60-65

Loftus, E.F., (1996) "The myth of repressed memory and the realities of science," Clinical Psychology: Science and Practice, 3:356-362

Loftus, E.F. (1993), "The reality of repressed memories," American Psychologist, 48:5:518-537

McConkey, K.M. & Sheehan, P.W. (1995) Hypnosis, Memory and Behaviour in Criminal Investigation, New York: Free Press

McElroy, S.L. and P.E. Keck (1995), "Misattribution of eating and obsessive-compulsive disorder symptoms to repressed memories of childhood sexual or physical abuse," Society of Biological Psychiatry, 37:48-51

McGaugh, J.L. (1995), "Emotional activation, neuromodulatory systems, and memory," in Schacter, D.L. (ed.) Memory Distortion: How Minds, Brains, and Societies Reconstruct the Past, Cambridge: Harvard University Press

McGuire, A. Chair (1997) BAC Research & Evaluation Committee, "False Memory Syndrome; A statement," adopted by Management Committee, British Association for Counselling, Warwickshire, England

McHugh, P.R. (1994), "Psychotherapy awry," The American Scholar, Winter:17-30

Merskey, H. (1996), "Ethical issues in the search for repressed memories," American Journal of Psychotherapy, 50:3:323-335

Michigan Psychological Association (1995), "Position paper: Recovered memories of sexual abuse," adopted by MPA Executive Council, dated May 17, 1995

Ofshe, R.J. and E. Watters (1994), Making Monsters: False Memories, Psychotherapy and Sexual Hysteria, New York: Charles Scribner’s Sons

Orne, M.T., D.A. Soskis, D.F. Dinges, and E.C. Orne (1984), "Hypnotically induced testimony," in G.L. Wells & E.F. Loftus (eds.), Eyewitness Testimony: Psychological Perspectives, New York: Cambridge University Press

Paris, J. (1996), "A critical review of recovered memories in psychotherapy: Part I-Trauma and memory," Canadian Journal of Psychiatry, 41:201-205

Piper. A. (1997/Winter) "What science says--and doesn’t say--about repressed memories: A critique of Scheflin and Brown," Journal of Psychiatry and Law, XXV:4:615-639

Poole, D.A., et al. (1995), "Psychotherapy and the recovery of memories of childhood sexual abuse: U.S. and British practitioners’ opinions, practices and experiences," Journal of Consulting and Clinical Psychology, 63:3:426-437

Pope, H.G., J.I. Hudson, J.A. Bodkin, P. Oliva (1998) "Questionable validity of ’dissociative amnesia’ in trauma victims," British Journal of Psychiatry, 172:210-215

Pope, H.G., J.I. Hudson, J.A. Bodkin, P. Oliva (1999) "The scientific status of research on repressed memories," in Faigman, D.L., et al (eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, St. Paul: West Group, pp. 115-155

Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:12 1-126

Porter, S. (1998) "An architectural mind: The nature of real, created, and fabricated memories for emotional childhood events," Ph.D Dissertation: University of British Columbia

Report to the Mental Health Subcommittee, Crime Victims’ Compensation Program, Department of Labor and Industries, State of Washington dated May 1, 1996

Rock, S.F. (1995) "Note: A claim for third party standing in malpractice cases involving repressed memory syndrome," 37 Wm. and Mary L. Rev. 337

Roediger, H.L., and E.T. Bergman (1998) "The controversy over recovered memories," Psychology. Public Policy and Law 4:4:1091-1109

Royal College of Psychiatrists (1997), "Reported recovered memories of child sexual abuse," The College Psychiatric Bulletin, 2 1:663-665

The Royal College (October, 1997), Press Release: Reported recovered memories of child sexual abuse

Sarbin, T.R. (1995), "On the belief that one body may be host to two or more personalities," International Journal of Clinical and Experimental Hypnosis, XLIII:2:163-183

Schachner, M., "False memory risk surfaces: Providing mental health benefits could lead to lawsuits", Business Insurance, June 27, 1994

Schacter, D.L. (1996), Searching for Memory: The Brain, the Mind, and the Past, NewYork: Basic Books

Shuman, D. and M. Weiner (1994) "The privilege study: An empirical examination of the psychotherapist-patient privilege," 60 N.C. L. Rev. 893

Squire, L.R. (1995) "Biological foundations of accuracy and inaccuracy in memory," in Schacter, D.L. (ed.) Memory Distortion: How Minds, Brains, and Societies Reconstruct the Past, Harvard University Press

Stocks, J.T. (1998), "Recovered Memory Therapy: A dubious practice technique," Social Work, 43:5:423-435

Taub, S. (1996), "The legal treatment of repressed memories of child sexual abuse," The Journal of Legal Medicine, 17:183-214

Tillman, J.G., MR. Nash and P.M. Lerner (1994), "Does trauma cause dissociative pathology?" in S. Lynn and J. Rhue (eds.), Dissociation: Clinical, Theoretical and Research Perspectives, New York: Guilford Press

Weaver, C.A. (1996), "Memory: An owner’s manual," The Baylor Line, Fall:32-39

Yapko, M. (1994), Suggestions of Abuse; True and False Memories of Childhood Sexual Trauma, New York: Simon and Schuster


INTEREST OF AMICUS CURIAE

The False Memory Syndrome Foundation (hereinafter "FMS Foundation" or "Foundation") is a 501(c)(3) institution located at 3401 Market Street, Suite 130, Philadelphia PA 19104. The Foundation is a non- profit organization founded in March, 1992 to promote competent scientific and medical research of False Memory Syndrome [1] and to disseminate the results to the public and professional community. The FMS Foundation Scientific and Professional Advisory Board is comprised of prominent researchers and clinicians from the fields of psychiatry, psychology, social work, law and education [2]. Since its formation, over 20,000 families and professionals have contacted the Foundation to ask for help.

Childhood sexual abuse, real or imagined, is an emotion-laden issue. The FMS Foundation deplores child abuse and agrees that society must support real victims of abuse. However, the FMS Foundation believes there is strong evidence to support the view that certain psychotherapeutic techniques, theories and practices have led many people to falsely believe they were sexually abused as children.

The FMS Foundation documents cases in which adults, often while in therapy, "recover" allegedly "repressed" memories and accuse their parents or others of sexually abusing them when they were children. When false memories of criminal sexual acts are developed or reinforced in therapy, serious injury to both patient and accused are likely to follow. All too often, the individual falsely labeled as an incestuous child abuser has little recourse within the psychological community to right the wrong against him.

The FMS Foundation, and the families, former patients and professionals who have requested its help, seek in the interest of justice, a thoughtful consideration of this situation. At issue is whether society’s justifiable repugnance for the crime of incest ought to allow reckless and irresponsible therapy to damage individuals’ lives and reputations without legal recourse. Amicus argues that a duty is owed to a third party where negligent practice leads to false allegations of a criminal act.

STATEMENT OF THE CASE

Amicus accepts the statement of the case as set forth in the brief of the Appellees.

ARGUMENT

A. Under certain circumstances a therapist owes the individual accused of sexual abuse a duty of care in the diagnosis and treatment of a patient for supposed sexual abuse.

During the past decade, clinicians, memory researchers, and many professional organizations have responded to the sudden rise of so-called recovered repressed memories [3] in suggestive therapy environments by setting out standards of conduct to protect against foreseeable, unreasonable risk of injury. These groups were responding to the acknowledged lack of empirical support for the premise of robust "repression," the recognized lack of any reliable method to determine the veracity of any repressed memory claim without corroboration, and the abundant evidence that many repressed memory claims may be the product of suggestion --especially in individuals who are highly suggestible psychologically.

Any therapist working in this area is expected to follow the accepted guidelines of the professional bodies and to be aware of scientific findings from which those guidelines are derived. [4] Contrary to strong warnings from professional organizations and others, however, suggestive techniques and improper assumptions continue to be employed by some mental health professionals, resulting in false beliefs and serious injury to patient and accused alike.

While certain subsets of the professional community continue to debate the theory of repression, professional mental health boards have been very clear that a danger of injury exists when certain suggestive techniques are used. [5] Practice issues and the debate over the underpinnings of the repression theory might have remained part of psychological lore, were it not for the serious impact of this type of therapy beyond the therapist-patient dyad. Certain practices peculiar to recovered repressed memory therapy are recognized as magnifying the likelihood and severity of injury to the accused third party: a recognized risk of engendering or reinforcing false memories and false accusations of incest crimes by misuse of suggestive techniques; an uncritical acceptance by the therapist of uncorroborated claims of sexual abuse based on recovered memories; a diagnostic judgment erroneously based on a "checklist" of psychological patterns or symptoms; an unwarranted acceptance of dream-images as veridical, historical memory; the encouragement of public or legal denunciation of incest against the accused, undertaken for its purported "therapeutic" or "healing" value. All of these practices are counterindicated by psychological research findings and by professional guidelines. Were a therapist to disregard established practice guidelines and fail to acquire relevant scientific understandings and thereby lead a patient to develop or reinforce false "recovered memories," the injury to the accused third party is foreseeable and direct. Where a therapist acts, or encourages her patient to act, on the recovered repressed memories, a special relationship between the therapist and the accused third party is created. Amicus respectfully submits that under these circumstances, holding a therapist to a duty of care to the third party accused of sexual abuse will not overly expand the circle of liability of therapists. [6] Nor does a duty of care to an accused third party under these circumstances impose an undue burden on the therapist to provide proper treatment to their patient.

B. Therapy directed at the recovery of memories of childhood sexual abuse is capable of causing foreseeable harm to patients and to the accused.

From his experience helping people with a history of sexual abuse, clinical psychologist Michael Yapko observed that there are few things more intensely painful and damaging to the emotional well-being of a person than the experience of being sexually abused, particularly by someone who is trusted. [7] Dr. Yapko also considered the impact of a false allegation of sexual abuse and described events following such an accusation as a "chain reaction that is as inevitable and as lethal to the entire family as that of a nuclear explosion." [8] A clinician and an expert on suggestibility, memory, and clinical uses of hypnosis, Dr. Yapko is, as we shall see, one of many professionals concerned about the adverse effects of so-called repressed memory therapy.

It is undeniable that a false allegation of criminal sexual molestation would directly and foreseeably endanger the accused person’s reputation and cause serious injury and damage. [9] Several courts have focused on the potential harm to the individual branded with the label of child abuser. [10] Those believed to be child molesters face a public opprobrium compounding hatred and fear. [11] Even when an accusation of sexual abuse is proven to be false, it is unlikely that social stigma, damage to personal relationships, and emotional turmoil can be avoided. [12]

Given the recognized potential grave injury to a falsely accused individual, several courts, most recently the New Hampshire Supreme Court, have held that a therapist has a duty of care to the accused person throughout the therapeutic process when diagnosing and treating an adult patient for sexual abuse. The New Hampshire Supreme Court, Hungerford v. Jones, 1998 N.H. LEXIS 94, held that "the severity and likelihood of harm is compelling and clearly foreseeable when false accusations of sexual abuse arise from misdiagnosis" and that the harm is magnified when, for example, the therapist uses a "psychological phenomenon or technique (such as repressed memories) that is not generally accepted and has been criticized as being suggestive and resulting in false memories. [13] The New Hampshire Supreme Court noted that not only is the person falsely accused of the crime directly injured but false sexual abuse allegations have broader implications:

In fact, the harm caused by misdiagnosis often extends beyond the accused parent and devastates the entire family. Society also suffers because false accusations cast doubt on true claims of abuse, and thus undermine valuable efforts to identify and eradicate sexual abuse. (citations omitted) Some have argued that injury to the accused is due solely to the patient making the allegation and that the falsely accused parent might find more appropriate remedy in a defamation suit against the accuser (their daughter) and/or a malicious prosecution suit against state authorities who acted on the allegations. This suggestion suffers from several errors: It mistakenly assumes that the parents believe their daughter maliciously made the allegations or that a parent would initiate such litigation against his own psychologically troubled child. [14] It fails to acknowledge that allegations based on so-called repressed memories are very unlike those based on common recall in that they are often associated with suggestive therapeutic practices. It disregards the responsibility of the therapist in the development or reinforcement of the images and it discounts the power of certain suggestive techniques, such as hypnosis, which may lead the patient to become convinced of the veracity of the "memories." [15] It also misreads the current consensus that available scientific evidence does not support the repression hypothesis.

C. Therapy directed at recovering memories of childhood sexual abuse is based on misconceptions about one’s ability to repress and later recover accurate images of the past.

Regardless of what the posited phenomenon of unconscious loss of memory is called, or what mechanism is proposed to explain how such amnesia might occur, there is currently no scientific support for the supposition that memories can be selectively excised from consciousness while the whole of memory remains intact. [16] Nor is there consensus that the images reported to be "retrieved" are accurate.

The most extensive reviews of published studies pertinent to repressed memory theory were conducted by Drs. Harrison Pope and James Hudson of Harvard Medical School and the Biological Psychiatry Laboratory, McLean Hospital. Drs. Pope and Hudson (1995) point out that if repression were as common as it is assumed to be, one would expect to find ample evidence of repression of events which could be independently verified. [17] In fact, their review led them to conclude that "recent evidence is insufficient to permit the conclusion that individuals can ‘repress’ memories of childhood sexual abuse" because none of the studies, 1) presented confirmatory evidence that abuse had actually occurred, nor did they 2) demonstrate that their subjects had actually developed amnesia. In 1998, Pope and Hudson completed a meta-analysis of 63 studies, in which more than 10,000 victims known to have suffered from traumatic experiences such as concentration camps, explosions, natural disasters, or physical and sexual abuse, were questioned about their history. [18] None were reported to have lost their memory for the trauma. In an additional 12 studies, the reason an individual did not report his or her history could be explained by other, more mundane causes that did not require repression or dissociative amnesia as an explanation. Furthermore, these 12 studies have been found by a number of independent reviewers to have serious methodological flaws that cast doubt on the reliability of any conclusions about dissociative amnesia. [19] The Pope and Hudson studies represent the most comprehensive reviews of current scientific literature regarding the repression phenomenon and are attached hereto as Appendices III and IV.

That traumatic events are memorable is inherent in adaptive behavior: If, for example, a person developed amnesia after being bitten by a snake, he might place himself in the same jeopardy over and over again. If memory loss of stressful life events were a widespread phenomenon, the repercussions would touch many areas of study and researchers are likely to have uncovered some evidence of it. The opposite is true. Although many researchers have considered the repression hypothesis from each of their own discipline’s perspectives and knowledge, the general consensus is that research has failed to substantiate the proposition that memory for trauma is commonly lost and later accurately recovered. For example, experimental psychologists who study normal processes of recall and forgetting have widely questioned the repression theory. [20] Neurobiologists have yet to find evidence that, absent physical trauma to the brain, memories which were never encoded, or which were selectively lost, could subsequently be recalled. [21] Known mechanisms of memory distortion studied by academic psychologists are not believed to explain the unconscious memory loss hypothesis of "repression." [22] Survey studies of the general population (as distinct from anecdotal, unverified clinical reports) have failed to corroborate the existence of verifiable "repressed memories." [23] In short, the theory of "repression" has been widely critiqued by professionals in many related scientific disciplines, each concluding that the theory does not conform with well-established findings in their own area. This widespread criticism of the repression theory has not gone unnoticed by the courts and a significant number of courts have noted the debate in the scientific community about the validity of the phenomenon. [24] The lack of evidence showing that individuals do, in fact, repress memories of traumatic events, and the suggestive circumstances under which many of the "recovered" images arise, have led many clinicians, psychological researchers, professional organizations, and other parties to urge caution before accepting a so-called recovered repressed memory as true -- and certainly before acting on it.

D. Techniques widely used in therapies directed at recovering memories of childhood sexual abuse are known to create false memories.

The general caution issued by the American Medical Association [25] that "the use of recovered memories is fraught with problems of potential misapplication," is typical of the response of other professional organizations that have questioned the safety of memory- focused therapy. [26] The AMA noted the potential for suggestive techniques to create false memories and cautioned against accepting the resulting images as true without external corroboration:

Questions have been raised about the veracity of such reported memories, one’s ability to recall such memories, the techniques used to recover these memories, and the role of the therapist in developing the memories...Most controversial are those ‘memories’ that surface only in therapy and those from either infancy or late childhood (including adolescence). Concern about and interest in repressed memories is widespread...It is well established, for example, that a trusted person such as a therapist can influence an individual’s reports...There have been reports of therapists advising patients that their symptoms are indicative -- not merely suggestive -- of having been abused, even when the patient denies having been abused... Other research has shown that repeated questioning may lead individuals to report events that in fact never occurred. [27]

The British Royal College of Psychiatrists concluded:

" Psychiatrists are advised to avoid engaging in any ‘memory recovery techniques’ which are based upon the expectation of past sexual abuse of which the patient has no memory. Such ‘memory techniques’ may include drug-meditated interviews, hypnosis, regression therapies, guided imagery, ‘body memories,’ literal dream interpretation and journaling. There is no evidence that the use of consciousness- altering techniques, such as drug meditated interviews or hypnosis can reveal or accurately elaborate factual information about any past experiences including childhood sexual abuse. Techniques of regression therapy including ‘age regression’ and hypnotic regression are of unproven effectiveness." [28]

Due to growing concern about induced memories and "passionate debates about these issues," [29] as well as the "risk of bringing the [mental health] profession into disrepute" [30] and "the growing number of [civil and criminal] cases in which adults make accusations of having been abused as children based solely on memories developed in therapy," [31] most professional organizations have issued statements cautioning their membership against assuming that recovered repressed memories are inherently accurate and reliable. [32] It is generally agreed that "it is not known how to distinguish, with complete accuracy, memories based on true events from those derived from other sources." [33]

Those "other sources" have been identified as including hypnosis and other related techniques, such as guided imagery, meditation, visualization, trance work, relaxation techniques, sodium amytal, journaling, dream interpretation, and "inner child" work. Surveys have shown that these practices are often employed by therapists to recover repressed memories and occur despite scientific evidence that hypnotic procedures do not enhance the accuracy of recall [34] and often increase suggestibility and confabulation, memory hardening, source amnesia, loss of critical judgment and may render a person overconfident of inaccurate recall. [35]

Several recent surveys of practices and beliefs regarding hypnosis and the use of suggestive techniques in some sectors of the therapeutic community reveal a number of widely held misconceptions which, when communicated to patients, can lead directly to the creation of false, confabulated memories. [36] For example, among the minority of therapists supporting such practices, many reported the disquieting fact that they have greater faith in details of a traumatic event when obtained hypnotically than otherwise, despite the lack of evidence that such images are reliable. [37]

It is generally accepted among clinicians and psychiatrists that suggestive therapeutic practices may lead patients to wrongly evaluate mental images as accurate memories of actual events. [38] Clinicians have also suggested that if people became so skilled at repression that they could develop total amnesia for traumatic experiences, it would imply the existence of a severe pathology which has not yet been observed or identified. [39]

The Diagnostic and Statistical Manual (DSM-IV), a diagnostic tool widely accepted by mental health professionals, discusses the care a therapist must take when evaluating a so-called retrieved memory especially considering its overdiagnosis in individuals who are highly suggestible:

"In recent years in the United States, there has been an increase in reported cases of Dissociative Amnesia that involves previously forgotten early childhood traumas. This increase has been subject to very different interpretations. Some believe that the greater awareness of the diagnosis among mental health professionals has resulted in the identification of cases that were previously undiagnosed. In contrast, others believe that THE SYNDROME HAS BEEN OVER DIAGNOSED IN INDIVIDUALS WHO ARE HIGHLY SUGGESTIBLE." (page 479) (emphasis added)

"Care must be exercised in evaluating the accuracy of retrieved memories, because the informants are often highly suggestible. There has been considerable controversy concerning amnesia related to reported physical or sexual abuse, particularly when abuse is alleged to have occurred during early childhood." (page 480)

Lief and Fetkewicz surveyed forty subjects who retracted their allegations of childhood sexual abuse and, in some cases, of satanic ritual abuse. [40] These subjects recounted the recurring factors which contributed to the creation of their pseudomemories and to their initial inability to recognize that the images were, in fact, false. They described an unusually and inappropriately close relationship with their psychotherapist, the influence of a drug or combination of drugs, the use of memory enhancing techniques, including hypnosis and hypnotic techniques, and recommended readings such as incest- focused self-help literature. The authors conclude that repressed memory therapy, based on erroneous assumptions that the recovery of repressed memories of childhood sexual abuse is necessary for healing, is instead causing enormous harm to patients and their families and threatens the entire practice of psychology. Other treatment outcome research has documented the harm to the patient resulting from the use of these techniques. A current review by J.T. Stocks is attached as Appendix II. [41]

E. Therapies directed at recovering memories of childhood abuse are considered neither safe nor effective.

Soon after so-called repressed memory therapy emerged in the mid 1980’s, its premises were shown to be faulty, the techniques employed found to be capable of causing confabulation, and the potential resulting injury recognized to be grievous. Professional organizations in the United States and abroad set out guidelines to prudent therapeutic practice and instructed therapists to take steps to limit the negative impact on individuals and the profession. Therapists are also cautioned that repressed memories, however emotionally intense and significant to the individual, do not necessarily reflect factual events, and that without corroboration their truth could not be determined. Therapists are further encouraged to discuss these cautions with their patients --especially if the patient intends to take action outside the therapeutic situation. Meeting these professional guidelines is not believed by the organizations that offered them to limit the effectiveness of available therapy or to pose too great a burden on the therapist.

The problems inherent in repressed memory therapy have been recognized by many agencies and organizations:

F. Certain characteristics of repressed memory therapy create a special relationship with the accused third party in a way that other therapy modalities do not.

Recovered memory therapy, unlike other therapy modalities, creates a special relationship with the accused third party. Not only does the third party -- often a close family member -- find himself accused of a heinous crime, but may also face public denunciations, inside or outside of the courtroom, often undertaken for its supposedly "therapeutic" value. Sessions in which the patient is encouraged to "confront" the third party and possibly other family and friends with the allegation have been described by some advocates as therapeutic and empowering. [49] Often the patient is encouraged to break off all communication with the wrongly accused third party, thus making it difficult, if not impossible, to address the true facts. Litigation has been presented as a "healing experience." [50]

One of the most influential books of the repressed memory movement, The Courage to Heal, which sold over 750,000 copies since it was first published in 1988 and cited by many recovered memory therapists as a seminal reference, includes an extended section on how and why to break off all connection with the "family of origin." An entire chapter is devoted to the subject of suing alleged perpetrators. [51] The use of this book is widespread; in a survey of clinicians in the U.S. and Britain, 44 percent reported they specifically recommended The Courage to Heal to their patients. [52] One often quoted author advised patients who confront abusers to maintain their conviction about the abuse even when faced with contradictory information:

Sometimes there is outrage, but usually the abuser will be cool and collected, simply stating that there is no truth to what you are saying. This calm attitude can be very influential to other family members who do not want to believe you in the first place. Do not retreat. You may want to suggest that the abuser has repressed all memory of the abuse. [53]

These actions, "confrontation" sessions, breaking communication, and lawsuits- all aimed at the accused third party and described as "therapeutic" have been shown to occur frequently. According to Poole et al., about 27 percent of patients who recovered memories of abuse during psychotherapy eventually confronted their abusers and 37 percent terminated relations with their accusers. [54] Lief and Fetkewicz reported that 27 of 40 "recanters" stated that their psychotherapists had told them not to communicate with their family members. [55] Poole, et al., found that about 6 percent of the persons who claimed recovered memories of past abuse took legal actions against their alleged abusers. The FMS Foundation Legal Survey now contains records from nearly 1,000 lawsuits based on a so-called recovered memory of sexual abuse filed during the last decade. The overwhelming majority of claimants (approximately 80 percent) stated that they were in therapy at the time they allegedly recovered memories of sexual abuse. [56]

One of the characteristics of recovered memory therapy singled out by the New Hampshire Supreme Court as "exponentially compounding" the potential of harm to an accused parent is the "public action" based on the false accusations undertaken by the therapist or by the therapist’s patient because of beliefs developed through the negligence of the therapist. Under these circumstances, the New Hampshire Supreme Court concluded, "a therapist’s diagnosis...consists of a conclusive determination concerning the suspected abuser as well as the patient, regardless of the accused’s involvement in the therapy process."

Because of the widespread use and harmful effects of family confrontation, "detachment" from family members, and even litigation as a therapeutic action in this area, most professional organizations, ethics panels, and clinicians offering practice guidelines feel it necessary to respond to this peculiar characteristic of repressed memory therapy. They have consistently emphasized that it is inappropriate for a therapist to encourage a patient to either confront or "detach" from their family. [57] In addition, several professional organizations urge that caution is "particularly important if the patient intends to take action outside the therapeutic situation," [58] or "pursue legal action," [59] because "the erroneous identification of abuse and of abusers can adversely affect the reported victim, the individual or individuals wrongly accused of abuse, the person’s family, and other persons or institutions implicated in the alleged false sexual abuse." [60] This point is clearly made by several professional organizations, including the Canadian Psychiatric Association:

A further important concern is that poorly trained or misguided therapists have been urging patients, AS A SPECIFIC PART OF THEIR THERAPY, TO CONFRONT AND ACCUSE THE ALLEGED PERPETRATORS OF THE ABUSE ONCE THEY HAVE BEEN IDENTIFIED. As a consequence of this type of therapy, members of the patient’s family are most often identified and accused. When recovered memories are found to be false, family relationships are unnecessarily disrupted. (emphasis added)

Amicus believes that the emphasis placed by certain sectors of the therapeutic community on public and legal denunciation of third parties for uncorroborated criminal charges as an indispensable vehicle for healing implies a duty is owed to such parties, and that therapists are liable for all the damage they do.

G. Following accepted guidelines of practice does not place an undue burden on therapists

Professional organizations, clinicians, and others have concluded that working with patients who report recovered memories requires additional knowledge and skill and therapists are called on to recognize the dangers of using certain suggestive techniques -- and to avoid them. [61] Most ethical principles caution therapists about the limitations of expertise and urge them to work within the boundaries and training of particular competencies. A therapist who fails to know and explain the risks of such treatment may be liable. It is not believed that following these safeguards would limit availability of competent care or the effectiveness of proper care. [62] It is believed, however, that injury to patients, their families and the profession can be avoided without undue burden on practitioners. As the Canadian Psychiatric Association explained:

Routine inquiry into past and present experience of all types of abuse should remain a regular part of psychiatric assessment. However, psychiatrists should take particular care to avoid inappropriate use of leading questions, hypnosis, narcoanalysis, or other memory enhancement techniques directed at the production of hypothesized hidden or lost material. THIS DOES NOT PRECLUDE TRADITIONAL SUPPORTIVE PSYCHOTHERAPEUTIC TECHNIQUES, BASED ON STRENGTHENING COPING MECHANISMS, COGNITIVE PSYCHOTHERAPY, BEHAVIOUR THERAPY OR NEUTRALLY MANAGED EXPLORATORY PSYCHODYNAMIC OR PSYCHOANALYTIC TREATMENT. [63] [Emphasis added]

Prudent safeguards proposed to protect the patient and others from predictable injury are not believed, if followed, to limit the effectiveness of care available or to pose too great a burden on the therapist. Society cannot tolerate the fostering of false testimony, however well-meaning, and the eradication and treatment of child abuse cannot be accomplished through this conduct.

The argument that therapists would be discouraged from evaluating or treating children for suspected sexual abuse out of fear of liability to the persons whose conduct they may implicate, was rejected by the New Hampshire Supreme Court in Hungerford. "This reasoning," the court wrote, "overlooks the fact that the standard of care by which a therapist’s conduct is measured is not heightened." The court explained,

Imposing a duty of care on therapists who elect to publicize accusations of sexual abuse against parents, or who encourage patients to do so, should not unreasonably inhibit sexual abuse diagnosis or therapy. Recognizing such a duty where parents are implicated, however, should result in greater protection for parents and families from unqualified or unaccepted therapeutic diagnoses. While imposition of this duty may impair societal efforts to bring some sexual abusers to justice, we recognize its need due to the increased foreseeability and devastating consequences of publicized false accusations against parents.

The Hungerford court went on to conclude that under the circumstances, allowing a duty to a third party imposes "no more [duty] than what a therapist is already bound to provide -- a competent and carefully considered professional judgment...Because the therapist is in the best position to avoid harm to the accused parent and is solely responsible for the treatment procedure, an accused parent should have the right to reasonably expect that a determination of sexual abuse, touching him or her as profoundly as it will, will be carefully made."

Some have argued that a duty of care to a third party would jeopardize the confidentiality of the fragile therapist-patient relationship. It is undoubtedly true that in most situations the therapeutic relationship is deservant of protection. However, it is not clear that under all circumstances preserving this relationship is more important than holding a therapist accountable if abuses take place within the therapist’s office. [64]

Nor is it clear that patients are less willing to go to therapy if their therapists informed them that there were occasions when privilege would be breached. One of the most comprehensive examinations of this question was conducted by Shuman and Weiner. [65] To determine whether patients would be less candid in therapy because of the limited instances when confidentiality would be breached, Shuman and Weiner conducted a study of therapists, patients, and the judiciary. They found that few patients were aware of the privilege and that "the prominent cause for withholding information [from therapists] did not appear to be the status of privilege, but instead fear of the therapist’s personal judgment." [66]

The U.S. Supreme Court, Jaffee v. Redmond, 518 U.S. ___, 116 S.Ct. 1923 (1996) as it discussed the importance of the development of a confidential relationship for successful psychological treatment, also was clear that it was not attempting to suggest that psychotherapist privilege is inviolate. It declared that,

"[A]lthough it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist id., at 1932, n. 19."

Amicus respectfully submits that the circumstances presented herein move the balance toward providing an effective check on irresponsible behavior and that the policy of favoring confidentiality should not be allowed to hide negligent, injurious practices.

CONCLUSION

Amicus urges that meaningful legal remedy be allowed to third parties in cases such as this where a special relationship is derived from the therapeutic practice itself and where the object of that special relationship is directly and foreseeably injured by an accusation of criminal acts of child sexual abuse. It is certain that therapy which includes techniques known to create false memories is unsafe, ineffective and may directly, foreseeably and severely injure both the patient and third parties. Where the therapy encompasses confrontation with the accused, a recommendation to cut off all contact and, in many cases, the suggestion that civil and/or criminal actions be initiated, the harm to the patient, as well as the innocent accused, is immediate and obvious.

For the foregoing reasons, Amicus believes that standing to sue should be granted in cases where third party plaintiffs have been directly and foreseeably injured as a result of the negligent practice of repressed memory therapy. To allow foreseeably injured third parties the right to sue in these cases will help curb mental health abuses and will give redress to a class of verifiable victims. Public policy is best served by recognizing claims such as these. A failure to do so can only encourage reckless conduct on the part of some therapists.

ACKNOWLEDGMENT OF ASSISTANCE

Counsel wishes to thank False Memory Syndrome Foundation researchers, Anita Lipton and Merci Federici, for their invaluable contribution in the preparation of this brief.

Date: January 22, 1999
____/S/_______________________
Thomas A. Pavlinic
The Conte Building
116 Defense Highway, Suite 501
Annapolis, MD 2 1401-7037
(410) 974-6004
(410) 974-6019 Facsimile

attorney for amicus curiae
False Memory Syndrome Foundation


NOTES

[1] A definition of "false memory syndrome" has been suggested by John F. Kihlstrom, Ph.D., Professor of Psychology at Yale University, New Haven, Connecticut as follows: "A condition in which a person’s identity and interpersonal relationships are centered around a memory of a traumatic experience which is objectively false but in which the person strongly believes."

[2] A list of the FMS Foundation Advisory Board members is attached hereto as Appendix I.

[3] The concept of robust "repression" discussed throughout this brief refers to the assumption that an individual can selectively lose all recollection of repeated sexual abuse trauma whiIe the overall autobiographical memory system remains otherwise intact. Amicus recognizes that the term "repressed memory" is semantically misleading in that it mistakenly implies the existence of an actual event which may, or may not, be the object of the memory.

[4] Practice guidelines are reviewed in Section D herein and relevant scientific findings are discussed in Section C.

[5] See, e.g., The Royal College (October, 1997), Press Release: Reported recovered memories of child sexual abuse. p.2, which stated: "Reported recovered memories constitute an area of great contention which is extremely emotive and sensitive. It is the aim of this report to provide our Members and Fellows with balanced and practical guidance with a view to promoting good practice." The American Psychiatric Association, (1993), infra, p. 1, which stated similarly: "The American Psychiatric Association has been concerned that the passionate debates about these issues have obscured the recognition of a body of scientific evidence that underlies widespread agreement among psychiatrists regarding psychiatric treatment in this area."

[6] Finer, J.J. (1996-1997), infra, at 61.

[7] Yapko, M.D. (1994) Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, Simon and Schuster: New York, p.179.

[8] lbid p. 178.

[9] Loftus, E.F., (1996) "The myth of repressed memory and the realities of science," Clinical Psychology: Science and Practice,3:356-362.

[10] See e.g., Sawyer v. Midelfort 579 N.W.2d 268, (Wisc. App. 1998) ("Society’s justifiable repugnance toward [sexual abuse of a child]...is the reason why a falsely accused [person] can be gravely harmed."); Hungerford v. Jones, 1998 N.H. LEXIS 94; Caryl S. v. Child & Adolescent Treatment, 614 N.Y.S.2d 661, 666-67 (Sup. Ct. 1994) (It is indisputable that "being labeled a child abuser [is] one of the most loathsome labels in society" and most often results in grave physical, emotional, professional, and personal ramifications).

[11] Finer, J.J. (1996-1997) "Article: Therapists’ liability to the falsely accused for inducing illusory memories of childhood sexual abuse-- current remedies and a proposed statute," 11 J.L. & Health 45, 64.

[12] Hungerford v. Jones, 1998 N.H. LEXIS 94.

[13] The New Hampshire Supreme Court, State v. Hungerford, 697 A.2d 916 (N.H., 1997), had in 1997 examined the reliability of the repressed memory claims made by Hungerford’s adult daughter and the therapeutic technique used by her therapists. At that time the New Hampshire Supreme Court concluded that the phenomenon of recovery of repressed memories is not reliable and the criminal charges against Mr. Hungerford were subsequently withdrawn.

[14] Johnston, M. (Summer 1997) "Spectral evidence," Letters & Comments, Judges Journal. p. 76. (suing a daughter is unlikely to lead to family healing or to reform of dangerous therapeutic practices.); Finer. J.J. (1996-1997), id. p. 49; Greer, E. (1998) "Tales of sexual panic in the legal academy: The assault on reverse incest Suits," 48 Case W. Res. 513, p. 516.

[15] Finer, J.J. (1996-1997), id. P. 49.

[16] See, e.g., Frankel, F.H. (1993), "Adult reconstruction of childhood events in the multiple personality literature," American Journal of Psychiatry, June 1993, 150:6:954-958; Holmes, D. (1990), "The evidence for repression: An examination of sixty years of research," in J. Singer (ed.), Repression and Dissociation, Chicago: University of Chicago Press; Lindsay. D.S. and J.D. Read (1995), "‘Memory work’ and recovered memories of childhood sexual abuse: Scientific evidence and public, professional, and personal issues," Psychology, Public Policy, and the Law, 1:4:846-908; Lindsay, D.S. and J.D. Read (1994), "Psychotherapy and memories of childhood abuse: A cognitive perspective," Applied Cognitive Psychology, 8:4:281-338; Piper. A. (1997) "What science says--and doesn’t say--about repressed memories: A critique of Brown and Scheflin," Journal of Psychiatry and Law, XXC:4:615-639; Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:12 1-126; Pope, H.G. and J.I. Hudson, J.A. Bodkin, and P. Oliva (1998) "Questionable validity of ‘dissociative amnesia’ in trauma victims," British Journal of Psychiatry, 172:210-215; Roediger, H.L. and E.T. Bergman (in press), "The controversy over recovered memories," Psychology, Public Policy and Law; Tillman, J.G., M.R. Nash and P.M. Lerner (1994), "Does trauma cause dissociative pathology?" in S. Lynn and J. Rhue (eds.), Dissociation: Clinical, Theoretical and Research Perspectives, New York:Guilford Press, pp. 395-414.

[17] Pope, H.G. and J.I. Hudson (1995), id.

[18] Pope, H.G. and J.I. Hudson, J.A. Bodkin. and P. Oliva (1998) "Questionable validity of ‘dissociativeamnesia’ in trauma victims," British Journal of Psychiatry, 172:210-2 15: Pope, H.G., Oliva, P.S. andJ.I. Hudson (1999) "The scientific status of research on repressed memories," in Faigman, D.L., et al(Eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, St. Paul: West Group, pp.115-155.

[19] See also, Kihlstrom, J.F. (1996) "The trauma-memory argument and recovered memory therapy," inPezdek & Banks (eds.), Trauma and Memory, Academic Press: San Diego, 296-311. Piper, A. (1997).id.

[20] Brenneis, C.B. (1997), Recovered Memories of Trauma: Transferring the Present to the Past. New York:International Universities Press, Inc. ; Schacter, D.L. (1996), Searching for Memory: The Brain, the Mind, and the Past, New York: Basic Books; Kihlstrom, J.F. (1997) "Suffering from Reminiscences: Exhumed memory, implicit memory, and the return of the repressed," in M.A. Conway (ed.) Recovered Memories and False Memories.

[21] See, e.g., Weaver, C.A. (1996), "Memory: An owner’s manual," The Baylor Line, Fall:32-39; Cahill, L. and J.L. McGaugh (1995), "A novel demonstration of enhanced memory associated with emotional arousal," Consciousness and Cognition, 4:410-421; McGaugh, J.L. (1995), "Emotional activation, neuromodulatory systems, and memory," in Schacter, D.L. (ed.) Memory Distortion: How Minds, Brains. and Societies Reconstruct the Past, Cambridge: Harvard University Press; Squire, L.R. (1995) "Biological foundations of accuracy and inaccuracy in memory," in Schacter, D.L. (ed.) Memory Distortion: How Minds, Brains, and Societies Reconstruct the Past, Harvard University Press.

[22] See, e.g., Kihlstrom, J.F. (1997), id.; Roediger, H.L., and E.T. Bergman (1998), id.

[23] See footnotes 16-18 and accompanying text.

[24] State of New Hampshire v. Hungerford. 697 A.2d 916 (N.H., 1997) ("A central and divisive question in this debate is whether a person’s memory of an event can be accurate or authentic or true; having been long lost in the person’s subconscious mind and subsequently remembered, either spontaneously or by some method seeking to recover the memory...the debate over methodology and the meaning of results continues. The psychological community remains deeply divided on the reliability or accuracy of repressed memories."); Doe v. Maskell, 679 A.2d 1087 (Md. 1996), cert. denied, 117 S. Ct. 770 (1997)(noting serious disagreement in the psychological community concerning repression theory); Lemmerman v. Fealk, 534 N.W.2d 695 (Mich., 1995) ("The reprehensible nature of such acts also carries with it, however, the potential for unwarranted castigation of those unjustly accused of such acts because of the alleged reawakening of memories by a phenomenon not yet fully understood or accepted by the medical and psychological community."); State of New Hampshire v. Walters, 698 A.2d 1244 (N.H., 1997) (On the basis of the record before us, we conclude, as we did in Hungerford, that the indicia of reliability present in the particular memories in [this] case[ ] do not rise to such a level that they overcome the divisive state of the scientific debate on the issue.); Ault v. Jasko, 637 N.E.2d 870, 875-76 (Ohio, 1994) (Wright, IJ, dissenting) (There is, however, a vigorous debate on the questions of how the process of repression occurs, how the process of retrieval occurs, and indeed if in fact retrieval is possible at all.); Dalrymple v. Brown, 701 A.2d 164 (Pa., 1997) (Madame Justice Newman, concurring) ("I note that the validity of repressed memory theory is subject to considerable debate in the psychological community, and some courts have rejected its admissibility."); Kelly v. Marcantonio, 678 A.2d 873 (R.I., 1996) ("We recognize that the theory or principle of repressed recollection is one that figures prominently in legal, scientific, and medical debate... [t]here is debate in the scientific community about the extent to which amnesia stemsfrom repression or simple forgetting."); S.V. v. R.V., 933 S.W.2d 1, 17-18 (Tex., 1996) (discussed the differing views in the scientific community on the phenomenon of repressed and subsequently recovered memory of childhood sexual assault: "there is debate in the scientific community about the extent to which amnesia stems from repression or simple forgetting...The question whether recovered memories are valid has elicited the most passionate debate among scholars and practitioners, and the consensus of professional organizations reviewing the debate is that there is no consensus on the truth or falsity of these memories."); John BBB Doe v. Archdiocese of Milwaukee, 565 N.W.2d 94 (Wisc., 1997) (quoting S.V.v. R.V. with approval, "The point is this: the scientific community has not reached consensus on how to gauge the truth or falsity of ‘recovered’ memories.")

[25] American Medical Association, (1994), id.

[26] American Psychiatric Association (1993): "It has also been shown that repeated questioning may lead individuals to report ‘memories of events that never occurred"; Canadian Psychiatric Association (1996):"Psychiatrists should take particular care to avoid inappropriate use of leading questions, hypnosis, narcoanalysis, or other memory enhancement techniques directed at the production of hypothesized hidden or lost material"; Australian Psychological Society (1994): "[Psychologists] should be alert to the role they may play in creating or shaping false memories"; BAC (1997): "Practitioners should not use methods which are deliberately intended to induce memories of abuse. Such methods run considerable risks of eliciting false rather than actual memories"; Royal College (1997), p. 664: "Forceful or persuasive interviewing techniques are not acceptable in psychiatric practice. Doctors should be aware that patients are susceptible to subtle suggestions and reinforcements..."

[27] American Medical Association (1994), infra.

[28] Royal College (1997), id., p. 663. 10

[29] American Psychiatric Association (1996), infra.

[30] Royal College of Psychiatrists (1997), infra. p. 663.

[31] American Medical Association (1994), infra.

[32] American Medical Association, Report of the Council on Scientific Affairs (1994), C.S.A. Report 5-A-94. "Memories of childhood abuse," Action of the AMA House of Delegates, 1994 Annual Meeting; American Psychiatric Association, Board of Trustees (1993), "Statement on memories of sexual abuse," approved by the Board of Trustees of the American Psychiatric Association; American Psychological Association, Council of Representatives, Working Group on Investigation of Memories of Child Abuse (1994), Interim Report; American Psychological Association, (1995), "Questions and answers about memories of childhood abuse," APA: Washington, D.C.; Australian Psychological Society Limited, Board of Directors, (1994), "Guidelines relating to the reporting of recovered memories"; Canadian Psychiatric Association (1996) "Position statement: Adult recovered memories of childhood sexual abuse"; McGuire, A. Chair (1997) BAC Research & Evaluation Committee, "False Memory Syndrome; A statement," adopted by Management Committee, British Association for Counselling; Michigan Psychological Association, (1995), "MLA position paper: Recovered memories of sexual abuse," MPA Executive Council, Michigan Psychologist, 20:5:13; Royal College of Psychiatrists (1997), "Reported recovered memories of child sexual abuse," The College Psychiatric Bulletin, 21:663-665.

[33] American Psychiatric Association (1996), id. See also, American Medical Association (1994), id: "The AMA considers recovered memories of child sexual abuse to be of uncertain authenticity, which should be subject to external verification. The use of recovered memories is fraught with potential misapplication"; American Psychological Association (1995), id. "at this point it is impossible, without other corroborative evidence, to distinguish a true memory from a false one"; Canadian Psychiatric Association (1996), id., p. 5: "great caution should be exercised before acceptance in the absence of solid corroboration...Psychologists should not assume the accuracy or inaccuracy of any report of recovered memory,"; Michigan Psychological Association (1995), id., recommends against "routine or uncritical acceptance of recovered memory in the absence of corroborative evidence."; The Royal College and Australian Psychological Society statements include similar cautions.

[34] Knapp, S.J., and VandeCreek, L. (1997) Treating Patients with Memories of Abuse: Legal Risk Management, American Psychological Association: Washington D.C., pp. 77-88, Stocks; J.T. (1998), infra.

[35] American Medical Association (1993), Resolution No. 504, "Misuse of hypnosis and other techniques of ‘Memory Enhancement/Creation’"; Laurence, J.R. and C. Perry (1983), "Hypnotically created memory among highly hypnotizable subjects," Science, 22:523-524; McConkey. K.M. & Sheehan, P.W. (1995) Hypnosis. Memory and Behaviour in Criminal Investigation, New York: Free Press; Orne, M.T., D.A. Soskis, D.F. Dinges and E.C. Orne (1984), "Hypnotically induced testimony" in Wells & Loftus (eds.) Eyewitness Testimony: Psvchological Perspectives, Cambridge University Press: New York. pp. 171-183; Giannelli, P.C. (1995), "The admissibility of hypnotic evidence in U.S. Courts," International Journal of Clinical and Experimental Hypnosis. XLIII:2:2 12.

[36] Poole, D.A., Lindsay, D.S., Memon, A., & Bull, R. (1995), "Psychotherapy and the recovery of memories of childhood sexual abuse: U.S. and British practitioners’ opinion, practices and experiences," Journal of Consulting and Clinical Psvchology, 63:3:426-437; Lindsay, D.S. and J.D. Read (1995), id.

[37] Yapko, M. (1994), id.

[38] See, e.g., Beahrs, J.O., J.J. Cannell, and T.G. Gutheil (1996), "Delayed traumatic recall in adults: A synthesis with legal, clinical, and forensic recommendations," Bulletin of American Academy of Psychiatry and Law, 24:1:45-55; Campbell, T.W. (1995), "Repressed memories and statutes of limitations: examining the data and weighing the consequences," American Journal of Forensic Psychiatry, 16:2:25-51; Dwyan, J. (1995), "The illusion of familiarity: An alternative to the report-criterion account of hypnotic recall," The International Journal of Clinical and Experimental Hypnosis, XLIII:2: 194-211; Frankel, F.H. (1996), "Dissociation: The clinical realities," American Journal of Psychiatry, 157:7:64-70; Freeland, A., et al. (1993), "Four cases of supposed multiple personality disorder: Evidence of unjustified diagnoses," Canadian Journal of Psychiatry, 38:245-247; Ganaway, G.K. (1995), "Hypnosis, childhood trauma and dissociative identity disorder: Toward an integrative theory," International Journal of Clinical and Experimental Hypnosis, XLII:2:l27-144; Goldzband, M.G. (1995), "The hottest topic," Psychiatric Annals, 25:8:477-485; Good, M.I. (1992), "The reconstruction of early childhood trauma: Fantasy, reality, and verification," JAPA, 42:1:79-101; Green. R. (1996), "Special Report: False memory syndrome," The Psychiatry Forum, 16:i-vi; Halleck, S.L., et al. (1992). "The use of psychiatric diagnoses in the legal process: Task force report of the American Psychiatric Association," Bulletin of American Academy of Psychiatry and Law, 20:4:481-499; Hyman, I.E. and J. Pentland (1996) "The role of mental imagery in the creation of false childhood memories," Journal of Memory and Language, 35: 101-117; Lief, H.I. (1992, Aug.), "Psychiatry’s challenge: Defining an appropriate therapeutic role when child abuse is suspected," American Journal of Psychiatry; McElroy, S.L. and P.E. Keck (1995), "Misattribution of eating and obsessive-compulsive disorder symptoms to repressed memories of childhood sexual or physical abuse," Society of Biological Psychiatry, 37:48-5 1; McHugh, P.R. (1994), "Psychotherapy awry," The American Scholar, Winter:l7-30; Merskey, H. (1996), "Ethical issues in the search for repressed memories," American Journal of Psychotherapy, 50:3:323-335; Paris, J. (1996), "A critical review of recovered memories in psychotherapy: Part I-Trauma and memory," Canadian Journal of Psychiatry, 41:201-205; Porter, S. (1998) "An architectural mind: The nature of real, created, and fabricated memories for emotional childhood events, Ph.D. Dissertation: University of British Columbia Sarbin, T.R. (1995), "On the belief that one body may be host to two or more personalities," International Journal of Clinical and Experimental Hypnosis, XLIII:2: 163-183. See also, Baker, R.A. (ed.) (1997), Child Sexual Abuse and False Memory Syndrome, Prometheus; Ganaway, G.K. (1989) "Historical versus narrative truth: Clarifying the role of exogenous trauma in the etiology of MPD and its variants," Dissociation, 2:205-220; Ofshe, R. & Watters, E. (1996), Making Monsters: False Memory, Psychotherapy and Sexual Hysteria, Univ of California Press: Berkeley; Yapko, M. (1994), id. In addition, many research studies have shown how suggestive tchniques can lead to confabulation. See, e.g., Ceci, S.J. (1995) "False beliefs: Some developmental and clinical considerations, in Schacter (ed.); Memory Distortions: How Minds, Brains, and Societies Reconstruct the Past, Harvard Univ. Press:Cambridge; Hyman, I.E. and E.F. Loftus (1997) "Some people recover memories of childhood trauma that never really happened," in Appelbaum and Uyehara (eds.) Trauma and Memory: Clinical and Legal Controversies, Oxford Univ. Press: New York; Loftus, E.F. (1993), "The reality of repressed memories," American Psychologist, 48:5:518-537; Loftus, E.F. (1997) "Memory for a past that never was," Current Directions in Psychological Science, 6:3:60-65.

[39] Schacter, D.L. (1996), id. p. 262.

[40] Lief, H.I. and J.M. Fetkewicz (1995) "Retractors of false memories: The evolution of pseudomemories," Psychiatry and Law, Fall:411-435.

[41] Stocks, J.T. (1998), "Recovered Memory Therapy: A dubious practice technique," Social Work. 43:5:423-435.

[42] United States of America v. Judith A. Peterson. Ph.D., Richard E. Seward. M.D..,George Jerry Mueck, Gloria Keraga, M.D., Sylvia Davis. M.S.W., U.S.D.C., S.D., Texas, Houston Div., Crim. No. H-97-237. Indictment dated October 29, 1997.

[43] Butler, K. (1995, March/April) "Caught in the cross fire," The Family Therapy Networker, 19:24-34, 68-79.

[44] Schachner, M., "False memory risk surfaces: Providing mental health benefits could lead to lawsuits, Business Insurance, June 27, 1994.

[45] FMSF Working Paper: False Reporting of Child Abuse, Publication # 830.

[46] See footnote 20.

[47] See, e.g., Doe v. Archdiocese of Milwaukee, 211 Wis.2d 312, 355, 565 N.W.2d 94 (1997).

[48] See, Lipton, A. (1998) "Repressed Memory Litigation" in Taub, S. (ed.) Recovered Memories of Abuse: Perspectives on a Twentieth Century Controversy, p. 165-211, New York: Charles Thomas, Publ. See also, Carro, J.L & J.V. Hatala (1996) "Recovered memories, extended statutes of limitations and discovery exceptions," 23 Pepp. L. Rev. 1239; Finer, J.J. (1996-97), "Therapists’ liability to the falsely accused for inducing illusory memories of childhood sexual abuse: Current remedies and a proposed statute," Cleveland-Marshall College of Law Journal of Law and Health, 11:1 & 2:46-131; Rock, S.F. (1995) "Note: A claim for third party standing in malpractice cases involving repressed memory syndrome," 37 Wm. and Mary L. Rev. 337; Taub, S. (1996), "The legal treatment of repressed memories of child sexual abuse," The Journal of Legal Medicine, 17:183-214.

[49] Herman, J. (1992) Trauma and Recovery, New York: Basic Books.

[50] Clute, S. (1993) "Adult survivor litigation as an integral part of the therapeutic process," Journal of Child Sexual Abuse, 2:121-127, @ 127.

[51] Bass, E. and L. Davis (1998) The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse, Harper & Row: New York. at 307-311.

[52] Poole, D.A., et al (1995), id.

[53] Fredrickson, R., (1992) Repressed Memories: A Journey to Recovery from Sexual Abuse, New York:Fireside/Parkside, p. 206.

[54] Poole, D.A.. et al (1995) id.

[55] Lief and Fetkewitc, (1995) id.

[56] Lipton, A. (1998) id.

[57] Knapp, S. and L. VandeCreek (1996) id; Yapko, M. (1993) "Suggested guidelines of professional counselors," Guideposts, Sept. 1993, p.11 "Be conservative in any recommendations you make to clients about cutting off communication with their families."

[58] Royal College (1997), id., p. 664.

[59] Australian Psychological Society (1994), id.

[60] Michigan Psychological Association (1995), id.

[61] Beahrs, J.O., J..J. Cannell, T.G. Gutheil (1996), "Delayed Traumatic recall in adults: A synthesis with legal, clinical, and forensic recommendations," Bulletin of the American Academy of Psychiatry and Law, 24:1:45-56.

[62] Brandon, S., J. Boakes, D. Glaser, R. Green (1998) "Recovered memories of childhood sexual abuse: Implications for clinical practice," British Journal of Psychiatry, 172: 296-307; Courtois, C.A. (1997), "Informed clinical practice and the standard of care; Proposed guidelines for the treatment of adults who report delayed memories of childhood trauma," in Read and Lindsay (eds.) Recollections of Trauma, Plenum Press: New York, 337-369; Frank, R.A. (1996) "Tainted therapy and mistaken memory: Avoiding malpractice and preserving evidence with possible adult victims of childhood abuse," Applied and Preventive Psychology, 5:135-164.

[63] "Position statement: Adult recovered memories of childhood sexual abuse," Canadian Psychiatric Association, March 25, 1996, p. 5.

[64] See, e.g., Finer, J.J. (1996-1997), id., pp. 99- 100.

[65] Shuman, D. and M. Weiner (1994) "The privilege study: An empirical examination of the psychotherapist-patient privilege," 60 N.C. L. Rev. 893.

[66] Shuman, D. (1994), ibid. p. 38 at 920.


APPENDICES

Appendix I - List of FMSF Advisory Board Members

Appendix II - Stocks, J.T. (1998), "Recovered Memory Therapy: A dubious practice technique," Social Work, 43:5:423-435. (Not yet available)

Appendix III - Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:121-126.

Appendix IV - Pope, H.G., Oliva, P.S. and J.I. Hudson (1999) "The scientific status of research on repressed memories," in Faigman, D.L., et al (Eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, St. Paul: West Group, pp. 115-155. (Not yet available.)

Appendix V - Report to the Mental Health Subcommittee, Crime Victims’ Compensation Program, Department of Labor. and Industries, State of Washington. Crime Victims’ Compensation and Repressed Memory, May 1, 1996.

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