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Recovered Memories:  Legal and Ethical Issues

Bowman, C. G., & Mertz, E. (1996). A dangerous direction: Legal intervention in sexual abuse survivor therapy. Harvard Law Review, 109, 551-639.

Abstract: "In this article, Professors Brown and Mertz question  recent popular and academic commentary that disputes the validity of all delayed-recall memories of childhood sexual abuse. They examine one court's decision to allow a father, accused by his daughter of childhood sexual abuse,  to recover malpractice damages from his daughter's therapist in connection with therapy during which the daughter recovered memories of the abuse. The authors argue that such third-party liability is unsound in terms of established principles of tort doctrine and in terms of public policy. After a review of the scientific evidence, the authors further conclude that, although some memories may be inaccurate, delayed-recall memory can also accurately reflect that past abuse occurred. Permitting third-party  liability against therapists when accurate memories of abuse surface in therapy gives abusers a weapon to use against their victims. Because such suits exclude the party in privy (the client), they effectively erase the victim's voice. Professors Bowman and Mertz argue that such a novel extension of  third-party liability is at best a misuse of the court's resources and ultimately harms abuse survivors, therapists, and the community far more than it  helps any wrongfully accused parents."

Crook, L., & Dean, M. (1999). Lost in a Shopping Mall"--A Breach of Professional Ethics. Ethics & Behavior.

Crook, L., & Dean, M. (1999). Logical Fallacies and Ethical Breaches. Ethics & Behavior.

Hovdestad, W. E., & Kristiansen, C. M. (1996). A field study of "false memory syndrome": Construct validity and incidence. Journal of Psychiatry & Law.

Abstract: "False memory syndrome (FMS) is described as a serious form of psychopathology characterized by strongly believed pseudomemories of childhood sexual abuse. A literature review revealed four clusters of symptoms underlying the syndrome regarding victims' belief in their memories of abuse and their identity as survivors, their current interpersonal relationships, their trauma symptoms across the lifespan, and the characteristics of their therapy experiences. The validity of these clusters was examined using data from a community sample of 113 women who identified themselves as survivors of girlhood sexual abuse. Examining the discriminant validity of these criteria revealed that participants who had recovered memories of their abuse (n = 51), and who could therefore potentially have FMS, generally did not differ from participants with continuous memories (n = 49) on indicators of these criteria. Correlational analyses also indicated that these criteria typically failed to converge. Further, despite frequent claims that FMS is occurring in epidemic proportions, only 3.9%-13.6% of the women with a recovered memory satisfied the diagnostic criteria, and women with continuous memories were equally unlikely to meet these criteria. The implications of these findings for FMS theory and the delayed-memory debate more generally are discussed."

Levy, B. J. (2000). Plaintiff and Defense Expert Witnesses in the Sexual Abuse Case.
Published simultaneously in the Journal of Aggression, Maltreatment & Trauma, 3(2), 113-132 and Sexual Abuse Litigation: A practical Resource for attorneys, Clinicians, and Advocates (Rebecca Rix, ed.), New York: Haworth Press.

This article presents strategies and techniques for countering the ``false memory" defense through the effective use of expert witnesses. Levy argues that expert witnesses should assist in preliminary case evaluation, education of the judge and jury, and in critical evaluation of defense expert testimony. Plaintiff experts are valuable allies in maintaining the focus of the case on whether or not sexual abuse occurred in the case at hand, rather than allowing the analysis of the facts to become mired in debates over memory science. She underscores the key differences between the role of the treating therapist and the expert witness, provides criteria for choosing an expert witness, and discusses three key objectives of successful cross-examination. Appendices provide questions for the direct and rebuttal examination of plaintiff's expert witness, as well as actual deposition testimony and subsequent cross-examination of a defense witness to illustrate these strategies in action.

Memon, A., & Young, M. (1997). Desperately seeking evidence: The recovered  memory debate. Legal & Criminological Psychology.

This paper examines some of the mechanisms that may account for recovered memories and to examine their likely accuracy in relation to the literature on the encoding and retrieval of traumatic events. Also examines how scientific research can inform the courts about the reliability of recovered memory evidence.

Murphy, W. (1997). Debunking "False Memory" Myths in Sexual Abuse Cases. Trial.

Olio, K. A. (1996). Are 25% of Clinicians Using Potentially Risky Therapeutic Practices? A Review of the Logic and Methodology of the Poole , Lindsay et al. Study. Journal of Psychiatry & Law.

ABSTRACT: Conclusions from the Poole , Lindsay et al. study are often cited to document claims regarding the frequency and potential risks of using so-called suggestive memory recovery techniques or memory recovery therapies. This study has also been used to document the alleged number of persuaded clients who have developed false memories of childhood abuse. The basis for these claims seems questionable when the Poole , Lindsay et al. study is examined carefully. Lack of operational definitions, flawed survey construction, lack of face validity, misclassification of techniques, and fallacious inferences about causality, such as mistaking correlation for causation, make it impossible to use these data to draw scientific conclusions about the nature and outcomes of clinicians' practices.

Perry, B. D. (1999). Testifying in Juvenile and Family Court: Preparing for Depositions, Hearings and Trials.

Pope, K. S. (1995). What Psychologists Better Know About Recovered Memories, Research, Lawsuits, and the Pivotal Experiment. Clinical Psychology: Science and Practice.

This article reviews 6 major scientific, ethical, and legal issues raised in the book The Myth of Repressed Memory by Elizabeth Loftus and Katherine Ketcham. Pope examines the assertion that a study by Lindsay and Poole revealed that there are  "over 1 million cases of 'recovered memories' each year"; looks at the use of the ad hominem fallacy; notes legal actions undertaken by 2 members of the FMSF Advisory Board that not only raised the issue of a conspiracy directed against them but also accused the American Psychological Association of engaging in racketeering activity; examines Wakefield and Underwager's defamation suit  against a prominent psychologist and the resulting judge's opinion about  litigating science; and reviews some high-profile cases involving Paul McHugh  and others that illustrate the complex issues in this area.

Pope, K. S., & Brown, L. S. (1996). Recovered Memories of Abuse: Assessment, Therapy, Forensics. Washington, DC: American Psychological Association.

This book contains essential information for attorneys and experts including consent forms, deposition and cross-examination questions, outlines for reviewing treatment plans, etc. Also contains pragmatic guidelines for clinicians that serve to improve the standard of care and decrease liability risk.

Pope, K. S. (1999). The Ethics of Research Involving Memories of Trauma, General Hospital Psychiatry, 21(3).

EXCERPT: Informed consent and other ethical principles have long been fundamental to research involving human participants, as emphasized for example by the Nuremberg Code (2).  But somehow ethics have become lost as a focus of careful, informed consideration in articles examining this area, in part because of the bitter controversy that erupted over recovered and false memories of child sex abuse.  In the early 1990s, the topic became fiercely polarized.  Disagreement gave way to demonization of those who disagreed.  Those on one side might be portrayed in ways that suggested them to be supporters of pedophilia if not actual pedophiles themselves.  Those on the other side might be portrayed in ways that suggested them to be hate-filled, pseudoscientific witch-hunters and True Believers.  Advocates claimed that they had discovered a new clinical syndrome whose diagnostic criteria were explicitly analogized to borderline personality disorder, and an epidemic of False Memory Syndrome was announced.   Therapists' homes have been picketed.  Speakers holding unpopular views have been excluded from conferences.

Pope, K. S., Butcher, J. N., & Seelen, J. (1999). Deposition & Cross-Examination Questions on Tests & Psychometrics, excerpted from the chapter "Deposition and Cross-Examination of the Expert Witness: 100 Basic Questions" which appears in the book MMPI, MMPI-2 & MMPI-A in Court: A Practical Guide for Expert Witnesses and Attorneys, 2nd edition (2000, published by the American Psychological Association).

A general resource for expert witnesses and practicing attorneys who handle case that involves psychological testimony based on the MMPI .

Pope, K. S. Pseudoscience, Cross-examination, and Scientific Evidence in the Recovered Memory Controversy. Psychology, Public Policy, and Law.

The recovered memory controversy is a contentious mix of conflicting claims, theories, and research. For example, reports of recovered memories of child sex abuse may be described as the result of implanting, false memory syndrome, repression, dissociation, motivated forgetting, directed forgetting, amnesia, betrayal trauma, retroactive inhibition, suggestion, self-induced hypnotic trance states, personality disorder, thought suppression, retrieval inhibition, cognitive gating, or biological protective processes. These terms may be used without clear definition or scientific basis, and may unintentionally foster pseudoscientific beliefs. Drawing on Daubert and other sources, this article suggests using 6 basic sets of cross-examination questions to assess the material in this area and to expose pseudoscience. These 6 questions focus on (1) research basis, (2) unclear terms and deductive fallacies, (3) inferential errors and confirmation bias, (4) links in the chain of reasoning, (5) ad hominem fallacies, and (6) original sources.

Scheflin, A. W., & Brown, D. (1996). Repressed memory or dissociative amnesia: What the science says. Journal of Psychiatry & Law, 24 (2), 143-88.

Abstract: "Legal actions of alleged abuse victims based on recovered  memories of childhood sexual abuse (CSA) have been challenged arguing that the  concept of repressed memories does not meet a generally accepted standard of  science. A recent review of the scientific literature on amnesia for CSA  concluded that the evidence was insufficient. The issues revolve around: (1) the existence of amnesia for CSA, and (2) the accuracy of recovered memories. A total of 25 studies on amnesia for CSA now exist, all of which  demonstrate amnesia in a subpopulation; no study failed to find it, including recent studies with design improvements such as random sampling and prospective  designs that address weaknesses in earlier studies. A reasonable conclusion is  that amnesia for CSA is a robust finding across studies using very different samples and methods of assessment. Studies addressing the accuracy of memories  show that recovered memories are no more or no less accurate than continuous memories for abuse.

Scheflin, A.W., & Spiegel, D. (1998). From courtroom to couch. Working with repressed memory and avoiding lawsuits. Psychiatric Clinics of North America, 21(4), 847-67.

Abstract: Hundreds of lawsuits have been filed during the last decade against therapists who work with patient having repressed memories. These lawsuits claim that therapists are engaged in "repressed memory" therapy, which does not retrieve memories, but instead actually imparts false beliefs, which serve as "pseudo-memories". This article explores the issues of repressed, false, and implanted memories. Advice is given concerning good therapeutic practice and the avoidance of legal liability.

Brown, D., Scheflin, A.W., & Whitfield, C.L. (1999). Recovered memories: The current weight of the evidence in science and in the courts. The Journal of Psychiatry & Law, 27, 5-156.

Scheflin, A.W. (1999).  Ground Lost: The False Memory/Recovered Memory Therapy Debate.

The Science and Politics of Recovered Memory, Special issue of Ethics & Behavior (Vol. 8, No. 2, 1998).
Copies of this special issue may be obtained from the publisher:
Lawrence Erlbaum Associates
10 Industrial Avenue
Mahwah, NJ
phone: 1-800-9-Books-9

Special issue of Ethics and Behavior based on a program chaired by Gerald Koocher at the American Psychological Association (August 18, 1997) convention. The following is a list of the presenters/authors:

  • Gerry Koocher
  • Jennifer J. Freyd: "Science in the Memory Debate"
  • Anna Salter: "Confessions of a Whistle Blower: Lessons Learned"
  • Jennifer A. Hoult : "Silencing the Victim: The Politics of Discrediting Child Abuse Survivors"
  • Ross E. Cheit: "False Representations about True Cases of Recovered
  • Memory"
  • David L. Calof: "Notes from a Practice Under Siege: Harassment, Defamation, and Intimidation in the Name of Science"

Simon, J. M. (1995). The Highly Misleading "Truth and Responsibility in Mental Health Practices Act": The "False Memory" Movement's Remedy for a Nonexistent Problem. Moving Forward

Over the past few years, the "false memory" movement has manifested primarily as a media presence that discounts sexual abuse survivors as first-hand witnesses to their own experiences. Its message of disbelief has compromised the healing process of many and placed more children at risk by helping perpetrators escape accountability.The Truth and Responsibility in Mental Health Practices Act (TRMP Act) represents a new watermark in the false memory movement as its most concrete and potentially far-reaching expression to date. This article considers the implications of the TRMP Act and, in the process, analyzes the false memory position on which it is predicated. As a direct outgrowth of the false memory movement, this legislation can provide some important lessons about the movement and its goals.

Whitfield, C. L. (1997). Traumatic Amnesia: The Evolution of Our Understanding From a Clinical and Legal Perspective, Sexual Addiction & Compulsivity.

 

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