The Myth of Repressed Memory by Dr. Elizabeth Loftus and Katherine
Ketcham makes not only for fascinating, but in fact for outright startling
reading. On the one hand, one has to wonder about how justice could possibly be
served in an exceedingly liberal judicial environment where witness testimony
is capable of securing a guilty verdict absent any other corroborating evidence
whatsoever. Sure, it is the situation of “she said, he said” that is so prevalent
in contemporary sexual abuse cases that are often tried years, and sometimes
many years, after the events took place. In a case discussed in The Myth of Repressed Memory, however,
Eileen Franklin’s testimony was not even that of a repressed victim – it was a
testimony of an adult woman suddenly recalling (and under rather unclear
circumstances) in minute details what she supposedly witnessed as an eight year
old: the rape and murder of her best friend, Susan Nason, by Eileen’s father.
It is astounding that the credibility of Eileen alone was deemed acceptably
sufficient to convince a jury beyond a reasonable doubt of the guilt of the
defendant who was her own father, and that all her testimony was supplanted
with was a characterization of her father as an evil man, possibly a pedophile
– accusations that were never required to be substantiated.
It is even more shocking to see how, in other cases,
clearly manipulated children and/or their mothers tell fantastic stories of
satanic cults and of sadistic sexual abuse, and that older family members
actually get convicted on that basis alone, once again absent any physical
evidence whatsoever. Prosecutors probably argued that the grotesque stories
were a result of trauma the victims survived – but it is beyond my
comprehension how such cases might be considered different from the Salem Witch
Hunt trials. Is the U.S. judicial system of the 21st c. at risk of
reverting to the methods and practices of the Dark Ages?
Another issue touched upon, but not really discussed by Loftus
and Ketcham, concerns the professional responsibility of “therapists” who use
objectionable methods to first convince their patients that all their problems
do, in fact, stem from something horrible that has happened to them in the
past, and then push them into mental distress and drug abuse by pressuring them
into dwelling extensively and often exclusively on those issues. Some of the
most frequently quoted “therapeutic” methods consist of trying to “recall” or
at least “imagine” the horrors the patients were supposed to have survived.
Even if the testimony of such a misguided patient with “memories” that were often
arrived at under hypnosis or suggestion is subsequently dismissed by the court
or suppressed as unconvincing and inherently inadmissible, are therapists
ever subjected to disciplinary proceedings for breach of any standard of
professional ethics? What about those who, as the book describes, take on a
patient with an eating disorder (a woman who basically is trying to lose
weight, like Lynn), and drive her by such “therapy” into a mental institution
and into multiple suicide attempts – does anything ever happen to such “therapists”?
It does not seem to be the case, even if other therapists and psychiatrists may
recognize the damage done and spend years trying to bring a victim of such
“healing” back on her feet. The truly scary part is that some of the most
destructive therapists discussed in The
Myth of Repressed Memory are not only professionally licensed, but even
hold advanced degrees, thus invoking their elevated professional qualifications
as a kind of ultimate authority over their initially doubting patient. It is
fascinating to observe how much the techniques of alienation, pressure, and
group loyalty, not to mention brainwash and rampant drug abuse, are similar to the
methods used by some of the most notorious religious cults for reeling in and
holding on to their followers. The power aspect is just one of the benefits to
both cult leaders and some therapists. Another one is money. Turning a patient
into a “lifer” in psychotherapy secures, after all, a constant stream of income
– and one whose life has been destroyed by harmful “therapy” is, of course,
unceremoniously dumped as soon as she turns out to be unable to continue paying
her bills (as the story of Lynn exemplifies).
To answer the rhetorical question of Ed Frischholz quoted
by Dr. Elizabeth Loftus, “What do you suppose is going on out there?” – one
needs to ask if psychotherapy is not, in fact, turning into a pseudo-scientific
cult based on mere leaps of faith and mass hysteria.
At first glance, The
Myth of Repressed Memory has precious little in common with Daubert et ux. v.Merrell Dow Pharmaceuticals, Inc. This case decided by the U.S. Supreme
Court deals with personal injury (the influence of prescription medication on
birth defects) and with technicalities under the Federal Rules of Evidence. The
opinion of the court was that “The Federal Rules of Evidence, not Frye,
provide the standard for admitting expert scientific testimony in a federal
trial.” That part was uncontested. Subsequently, though, the court launches
into “general observations” of a rather philosophical nature, trying to present
its views on the nature of scientific method and knowledge. As far as it is
publicly known, none of the Supreme Court Justices in this case was a trained
scientist – hence the dissent of Chief Justice Rehnquist is all the more
understandable, especially given that the “general observations” have no direct
bearing on the case at hand, once the final ruling rendered such considerations
moot in the first place.
The bulk of the Supreme Court decision in Daubert seems
to focus on the nature of fact and knowledge. And yet, unlikely as it may
sound, the cases described by Loftus exemplify what happens when courts take at
face value the rather outlandish instigations of the majority opinion that,
one, “We are confident that federal judges possess the capacity to undertake
this review” (“whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can
be applied to the facts at issue” )(592-593), and, two, that jurors are deemed
capable of distinguishing science from pseudo-science (596). It is a known fact
that many if not most jurors, for a variety of reasons rooted in the jury
selection process, often do not come from the most educated strata of society,
hence their judgment in matters scientific will be limited to their impression
of the expert witness’s credentials and how persuasively (read: categorically)
his claims will be presented. Jurors’ opinion will also be swayed by personal
misconceptions, prejudices, empathy, etc. As for the judge, his ability to
consider what is valid scientific method and what is not will in most cases be equally
limited to the credentials of the expert witness. This is so because even the
experts in the field differ substantially in their opinions about what
constitutes acceptable methodology and how far conclusions drawn from it may
reach. The story of Eileen Franklin described by Loftus is a clear case in
point: the two experts in the matter have very different conceptions of memory
processes, and one considers the research of the other either not rigorous or
not relevant. If Dr. Elizabeth Loftus, a specialist in her field, considers the
argument of Dr. Lenore Terr, another specialist, as based on leaps of faith and
not on rigorous science, how can a judge with virtually no knowledge of the
field base himself on reliable authority when deciding what is and what is not
appropriate scientific method? The question of memory may be decided based on
the beliefs of both the jurors and the court – regardless of expert opinions,
they will believe what they already had believed or wanted to believe before,
and use the expert’s arguments primarily if not exclusively to corroborate those
very same personal opinions. But what in a case that considers, as in Daubert,
medical and pharmaceutical information? What will the jurors understand from expert
mumbo-jumbo describing biochemical molecular structure and advanced regression
analysis and reanalysis of previously published and assessed data? In personal
injury or medical malpractice cases, each side regularly presents its own
expert witnesses – does not that fact alone suggest that, for the purposes of
civil as well as criminal justice, scientific truth can be pretty much whatever
we want it to be, because there will always be some published or unpublished
research supporting either point of view? And how will jurors be able to weigh
the credibility of evidence on either side? That question, however, touches on
an altogether different subject: on the comparative merits of the common law
system of justice assigning the role of finder of fact to a jury of laymen
assembled pro hac vice.
The case of Eileen Franklin demonstrates how a
non-scientist judge vested with authority to decide what is and what is not a
scientific method does, in fact, admit evidence that has no basis whatsoever in
scientific fact, and that results in a criminal conviction based solely upon -
possibly imaginary - “recovered memories” obtained through hypnosis, suggestive
therapy, and manipulations of the patient’s mind by a psychotherapist. How much
farther away from verifiable science can “admissible scientific evidence” possibly
get?
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