Return to FMSF Home Page

STATE OF WISCONSIN

SUPREME COURT

No. 97-1969

____________________________________

DELORES SAWYER, SPECIAL ADMINISTRATOR OF THE ESTATE OF NANCY K.
ANNEATRA, THOMAS SAWYER AND DELORES SAWYER,

Plaintiffs-Appellants,

v.

H. BERIT MIDELFORT, M.D. and CELIA LAUSTED,

Defendants-Respondents-Petitioners,

BLUE CROSS BLUE SHIELD UNITED OF WISCONSIN, VALLEY HEALTH PLAN, ABC
INSURANCE COMPANY AND DEF INSURANCE COMPANY,

Defendants.

____________________________________

Appeal from the Judgment of the Eau Claire County Circuit Court,

Hon. Eric J. Wahl, Presiding

____________________________________

AMICUS BRIEF OF THE FALSE MEMORY SYNDROME FOUNDATION

____________________________________

Thomas A. Pavlinic
The Conte Building
116 Defense Highway, Suite 501
Annapolis, MD 21401-7037
pro hac vice
(410) 974-6004
(410) 974-6019 Facsimile

David D. Relles
Relles, Meeker & Borns
301 North Broom Street
Madison, WI 53703
Bar No. 1017013
(608) 255-7600
(608) 257-5184


TABLE OF CONTENTS

TABLE OF CITATIONS

INTEREST OF AMICUS CURIAE

STATEMENT OF CASE

ARGUMENT

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

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

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

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

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

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

CONCLUSION

ACKNOWLEDGMENT OF ASSISTANCE

CERTIFICATION

APPENDICES:

Appendix I - List of FMSF Advisory Board Members

Appendix II - Reports of Lawsuits brought against Mental Health Care Workers Alleging Creation of False Memory Syndrome Through the Use of Repressed Memory Therapy; Data excerpted from the FMSF Legal Survey, June, 1998

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 - 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

Appendix V - 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

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

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

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

Appendix IX - Michigan Psychological Association (l995), "Position paper: Recovered memories of sexual abuse," adopted by MPA Executive Council, dated May 17, 1995

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

Appendix XI - Royal College of Psychiatrists (1997), "Reported recovered memories of child sexual abuse," The College Psychiatric Bulletin, 21:663-665

Appendix XII - Excerpts from Fredrickson, R., Ph.D. (1992), Repressed Memories, New York: Simon and Schuster. Quotes refer to memory retrieval techniques and "confrontations"

Appendix XIII - Yapko, M.D. (1994), "Therapists reveal their attitudes about memories and suggestions of abuse," Chapter 2, in Yapko, M.D., Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, New York: Simon and Schuster

Appendix XIV - 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 CITATIONS

CASES

Doe v. Archdiocese of Milwaukee, 211 Wis.2d 312, 565 N.W.2d 94 (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

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

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

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 Pepperdine Law Review, 1239

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

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

False Memory Syndrome Foundation Newsletters, June 1998, January 1998, 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. (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

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

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

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

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

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

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

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

Payne, D.G., J.S. Neuschatz, J.M. Lampinen, S.J. Lynn (1997), "Compelling memory illusions: The qualitative characteristics of false memories," Current Directions in Psychological Science, 6:3:56-59

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: The evidence from prospective prospective studies," British Journal of Psychiatry, 172:210-215

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

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

Royal College of Psychiatrists (1997), "Reported recovered memories of child sexual abuse," The College Psychiatric Bulletin, 21:663-665

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

Shimamura, A.P. (1997), "Recollection: Perspectives on reinstated memory and child trauma," in Read and Lindsay (eds.) Recollections of Trauma, Plenum Press: New York

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

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

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 1955 Locust Street, Philadelphia, PA 19103. The Foundation is a non-profit organization founded in March, 1992 to promote and sponsor 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 falsely to believe they were sexually abused as children.

Contrary to strong warnings from professional organizations and others, suggestive techniques and improper assumptions continue to be employed by some mental health professionals. There is little empirical support for the premises upon which these therapies are based: the theory that memories involuntarily lost to consciousness may be retrieved accurately, the assumed prevalence of robust repression,[3] or the belief that hypnosis-like techniques recover veridical images.

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 presented by the parties in their respective briefs.

ARGUMENT

Therapy Directed At The Recovery of Memories of Childhood Sexual Abuse is Capable of Causing Foreseeable Harm to Patients and 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.[4] 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." [5] 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.

Practice and theoretical issues regarding repression might have remained part of psychological lore, were it not for the serious impact of this type of therapy beyond the therapist-patient dyad. A false allegation of criminal sexual assault of a child gravely injures the accused person [6] in a direct and foreseeable way.[7] The accused third party’s injury stems directly from allegations based on repressed memories often shown to have developed and been reinforced in therapy practices counterindicated by psychological research findings and by professional guidelines. A further factor that distinguishes cases such as this one from conventional malpractice claims is the public or legal denunciation of incest against the accused, an action often encouraged as "therapeutic" or "healing."

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.[8] Nor is there consensus that the images reported to be "retrieved" are accurate.

The most extensive review of all published studies pertinent to repressed memory theory was 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. 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 anmesia.[9]

The authors recently completed another meta-analysis of 75 studies for evidence of repression.[10] They found that in 63 studies, none of the more than 10,000 victims of traumatic events such as concentration camps, explosions, natural disasters, or abuse, were reported to have lost their memory for that trauma. In the remaining 12 studies, any "non-reporting" could be explained by other, more mundane causes that did not require repression or dissociative amnesia as explanation. Furthermore, the remaining 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.[11] These reports represent the most comprehensive reviews of current scientific literature regarding the repression phenomenon and are attached hereto as Appendix III.

The lack of evidence showing that individuals do, in fact, repress such memories, 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.

Techniques Widely Used in Therapies Directed at Recovering Memories of Childhood Sexual Abuse are Known to Create False Memories.

In 1994, the American Medical Association became the first professional organization to issue a formal statement responding to the newly emergent repressed memory therapy approach. The AMA noted the potential for suggestive techniques to create false memories and cautioned against accepting the resulting images as true without external corroboration. Soon after, other professional organizations echoed the perspective of the AMA:

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.[12]

Due to growing concern about induced memories and "passionate debates about these issues," [13] as well as the "risk of bringing the [mental health] profession into disrepute" [14] 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," [15] most professional organizations have issued statements [16] cautioning their membership against assuming that recovered repressed memories are inherently accurate and reliable.[17] 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." [18]

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, and "inner child" work. These practices are often employed by therapists to recover repressed memories [19] and occur despite scientific evidence that hypnotic procedures do not enhance the accuracy of recall and often increase suggestibility and confabulation, memory hardening, source amnesia, loss of critical judgment and may render a person overconfident of inaccurate recall.[20] No reliable method exists for differentiating accurate from inaccurate hypnotically derived memories.[21]

Professional organizations and others have questioned the safety of memory-focused therapy [22] and have identified specific techniques implicit in therapy aimed at recovering repressed memories which are to be avoided.[23] As the Royal College 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." p. 663.

Several recent surveys of practices and beliefs regarding hypnosis and the use of suggestive techniques in some sectors of the therapeutic community show that these can lead directly to the creation of false, confabulated memories.[24] 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.[25]

Lief and Fetkewicz surveyed forty subjects who retracted their allegations of childhood sexual abuse and, in some cases, of satanic ritual abuse. [26] 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.

Therapies Directed at Recovering Memories of Childhood Abuse are Considered Neither Safe Nor Effective.

Less than a decade 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. Prudent therapeutic practice would take steps to limit the negative impact on individuals and the profession. Responses to the problems inherent in repressed memory therapy include:

A recent federal indictment against five mental health workers for fraud, described the memory recovery techniques used as those "commonly associated with mind control and brain-washing." [27]

The State of Washington halted victims’ compensation funds for repressed memory claims following a study by the Washington State Crime Victims’ Compensation Program. The report concluded that despite the higher average cost of repressed memory treatments over other types of therapies, repressed memory therapy protocols, rather than helping patients, were actually damaging to their mental well- being. See Appendix XIV attached hereto.

Repressed memory complaints accounted for 16 percent of all claims filed in 1994 against mental health professionals insured by the American Professional Agency.[28]

A growing number of psychiatric malpractice lawsuits brought by former patients against their therapists allege that the use of suggestive therapeutic techniques led to the creation of false memories resulting in serious injury to the patient and her family. These cases also show how certain techniques when employed in therapy may work together to decrease the patient’s ability to rationally evaluate the images and beliefs as they developed. A summary is found in Appendix II attached hereto.

Some insurance companies have begun to establish policies which no longer knowingly provide coverage for services that include memory recovery therapy or any other therapy that encourages regression, dissociation or dependence.[29]

Since 1993, at least four state legislatures (Colorado, Illinois, New Hampshire, and Missouri) have seen the introduction of mental health consumer protection bills. These bills would require extensive informed consent procedures, deny third party reimbursement for procedures that are not scientifically validated, permit lawsuits by third parties such as parents of patients, and criminalize the willful or reckless induction of false memories of abuse.

Since 1994, nearly twenty state legislatures, recognizing the problem of false allegations of sexual abuse and the devastating effect on the person accused, have set down criminal penalties for filing a false report of child abuse.[30]

The majority of recent appellate decisions have noted the lack of any reliable methods of determining the truth of a "repressed memory" claim, absent corroboration. Many courts have recognized that false memories of abuse may develop through certain psychotherapy approaches.[31] Many courts have, therefore, refused to apply the discovery rule to repressed memory claims. [32] Other courts have found recovered memory testimony insufficiently reliable to be admissible in court.

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 denunciations, either public or legal, supposedly undertaken for their "therapeutic" value. Sessions in which the patient is encouraged to "confront" the third party and possibly other family and friends with the allegation are described as therapeutic and empowering.[33] 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." [34]

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, 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.[35] 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.[36]

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.[37]

These actions -- "confrontation" sessions, "detachment", 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.[38] Lief and Fetkewicz reported that 27 of 40 recanters stated that their psychotherapists had told them not to communicate with their family members.[39] 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 FMSF survey indicates that in nearly 90 percent of cases, the "memories" on which the claim is based were "recovered" or elaborated while the complainant was in therapy.

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.[40] In addition, several professional organizations urge that caution is "particularly important if the patient intends to take action outside the therapeutic situation," [41] or "pursue legal action," [42] 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." [43] 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.

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.

Following Accepted Guidelines for Practice Does Not Place 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.[44] A therapist who fails to know and explain the risks of repressed memory treatment may be liable. Following these safeguards would not limit availability of competent care or the effectiveness of proper care.[45] Simply by following these guidelines, injury to patients, their families and the profession could 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. p. 5 [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 burden on the therapist.

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.

CERTIFICATION

I hereby certify that this brief conforms to the rules contained in s.809.19(8)(b) and (c) for a brief and appendix produced with a proportional font, 13 point body text, 11 point for quotes and footnotes, leading of mm. 2 points. The length of this Brief is 2,988 words, excluding footnotes, exhibits, and appendices.

Date: July 17, 1998

/S/
Thomas A. Pavlinic
The Conte Building
116 Defense Highway, Suite 501
Annapolis, MD 21401-7037
pro hac vice
(410) 974-6004
(410) 974-6019 Facsimile

/S/
David D. Relles
Relles, Meeker & Borns
301 North Broom Street
Madison, WI 53703
Bar No. 1017013
(608) 255-7600
(608) 257-5184 Facsimile

Attorneys 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 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 while 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. It should also be noted that the term robust "repression" referred to is distinct from the original Freudian use of the term.

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

[5] Ibid., p. 178.

[6] Doe v. Archdiocese of Milwaukee,211 Wis.2d 312,355.

[7] Scores of shattered reputations, prison terms and thousands of dollars in damages have resulted from legal actions taken against alleged abusers. Loftus, E.F., (1996) "The myth of repressed memory and the realities of science," Clinical Psychology: Science and Practice, 3:356-362. The FMSF Legal Survey now contains reports of nearly 1,000 civil and criminal lawsuits based on claims of recovered repressed memories of long past sexual abuse that have been filed during the last decade.

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

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

[10] Pope, H.G. and J.I. Hudson, J.A. Bodkin, P. Oliva (1998), "Questionable validity of Dissociative Amnesia in trauma victims: The evidence of prospective studies," British Journal of Psychiatry, 172:210-215.

[11] See also, 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. Piper, A. (1997), id.

[12] American Medical Asssociation (1994), infra.

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

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

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

[16] See Appendices IV through XI for text of these statements.

[17] American Medical Association, Report of the Council on Scientific Affairs (1994), C.S.A. Report 5-A-94, "Memories of childhood abuse"; 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," Michigan Psychologist, 20:5:13; Royal College of Psychiatrists (1997), "Reported recovered memories of child sexual abuse," The College Psychiatric Bulletin, 21:663-665.

[18] American Psychiatric Association (1996). All other professional organizations’ statements include similar cautions.

[19] See, e.g., Appendixes XII and XIII hereto.

[20] American Medical Association (1993), Resolution No. 504, "Misuse of hypnosis and other techniques of ‘Memory Enhancement/Creation"’; 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; Orne, M.T., D.A. Soskis, D.F. Dinges and E.C. Orne (1984), "Hypnotically induced testimony" in Wells & Loftus (eds.) Eyewitness Testimony: Psychological Perspectives, Cambridge University Press: New York, pp. 171-183.

[21] Payne, D.G., J.S. Neuschatz, J.M. Lampinen, S.J. Lynn (1997), "Compelling memory illusions: The qualitative characteristics of false memories," Current Directions in Psychological Science, 6:3:56-59; Shimamura, A.P. (1997), "Recollection: Perspectives on reinstated memory and child trauma," in Read and Lindsay (eds.) Recollections of Trauma, Plenum Press: New York.

[22] 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.

[23] American Psychiatric Association (1993): "It has also been shown that repeated questioning may lead individuals to report ‘memories’ of events that never occurred." See also, Canadian Psychiatric Association (1996); Australian Psychological Society (1994); BAC (1997); Royal College (1997), p. 664. Many research studies have shown how suggestive techniques can lead to confabulation. See, e.g., 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.

[24] Poole, D.A., et al (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 Psychology, 63:3:426-437; Lindsay, D.S. and J.D. Read (1995), id.

[25] Yapko, M. (1994), id. See also Appendix XIII hereto.

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

[27] 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. [28] Butler, K. (1995, March/April), "Caught in the cross fire," The Family Therapy Networker, 19:24-34, 68-79.

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

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

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

[32] See, e.g., FMSF Newsletter, June 1998, "Is the majority rule in this country to apply the discovery rule to sexual abuse cases?" and January 1998 "Summary of recent cases..." 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.

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

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

[35] 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.

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

[37] Fredrickson, R., (1992), Repressed Memories: A Journey to Recovery from Sexual Abuse, New York: Fireside/Parkside, p. 20 . See, Appendix XII.

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

[39] Lief and Fetkewitcz, (1995), id.

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

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

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

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

[44] 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.

[45] Brandon, S. J., et al (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," Allied and Preventive Psychology, 5:135-164.


APPENDICES

Appendix I - List of FMSF Advisory Board Members

Appendix II - Reports of Lawsuits brought against Mental Health Care Workers Alleging Creation of False Memory Syndrome Through the Use of Repressed Memory Therapy; Data excerpted from the FMSF Legal Survey, June, 1998

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 - 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

Appendix V - 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

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

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

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

Appendix IX - Michigan Psychological Association (l995), "Position paper: Recovered memories of sexual abuse," adopted by MPA Executive Council, dated May 17, 1995

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

Appendix XI - Royal College of Psychiatrists (1997), "Reported recovered memories of child sexual abuse," The College Psychiatric Bulletin, 21:663-665

Appendix XII - Excerpts from Fredrickson, R., Ph.D. (1992), Repressed Memories, New York: Simon and Schuster. Quotes refer to memory retrieval techniques and "confrontations"

Appendix XIII - Yapko, M.D. (1994), "Therapists reveal their attitudes about memories and suggestions of abuse," Chapter 2, in Yapko, M.D., Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, New York: Simon and Schuster>

Appendix XIV - 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.

Return to FMSF Home Page