Researchers say repressed memories cannot be used as evidence in courts

The Campanile/September 19, 2005
By Pamela Evers

Researchers say that courts and juries should not rely on repressed memories recovered with a psychiatrist's help when deciding on criminal cases. All too often, verdicts that depend on such testimony defy common sense, contradict physical evidence or have later proven to be wrong. Researchers suggest that courts require that any recovered memory be corroborated by physical evidence, testimony of other witnesses or accounts by the victim that were contemporaneous with the crime. In some cases, recovered memories have been confirmed with other facts, while in others they have been disproved or acknowledged to be false, leaving the public confused.

Memories fade over time, becoming more easily manipulated. Some individuals are easily influenced by the misinformation of others. People can remember new and different details of an event or can even relate entire events that never occurred.

"Just because someone thinks they remember something in detail, with confidence and with emotion, does not mean that it actually happened," University of California at Irvine professor Elizabeth Loftus said. "False memories have these characteristics too."

Induced false memories have figured prominently in several court cases. During 1986 therapy sessions, Nadean Cool was convinced that she remembered being a member of a satanic cult, falling victim to rape, eating infants, having sexual intercourse with animals and forcibly witnessing the murder of a young friend. She also came to believe that her mind was littered with over 120 personalities of people, young and old, animals and even angels.

Cool's therapist explained that she had undergone extensive sexual and physical abuse in her childhood, and this was the reason behind her problems. After realizing upon reflection that these events were impossible, Cool sued the psychiatrist for malpractice, for implanting these gruesome memories, and received $2.4 million in March of 1997.

Frederick Crews, a specialist on recovered memory and a retired professor from the University of California at Berkeley wrote the book Memory Wars.

"Perhaps [an act of molestation] did occur in some cases," Crews said. "But in many other cases, the 'memory' was induced by the therapist and is bogus," he wrote in his book.

In 1992 in Missouri, Beth Rutherford was guided by a counselor of her church to remember her father repeatedly raping her when she was between seven and 14 years old. She remembered her mother several times pinning her down as he sexually violated her. In addition to these horrors, Rutherford was convinced that she remembered becoming pregnant twice from these rapes and being forced by her father to abort the fetuses herself using a coat hanger. Rutherford's father, a clergyman, resigned on account of the accusations but was cleared later.

When Rutherford eventually underwent physical examination, she was found to be a virgin and never pregnant. Rutherford sued the counselor and received $1 million in 1996.

There is "great doubt" as to whether repressed memory exists at all according to Crews. He added that there is also the issue of whether personal testimony, "after therapeutic recovery of a memory," should be allowed by courts to count "as evidence that the remembered event actually occurred."

The problem that Crews alludes to is illustrated by a 1989 court case in which a jury ruled solely on the basis of a recovered memory.

George Franklin was convicted purely on the testimony of his daughter Eileen Lipsky. After therapy as an adult, she suddenly and dramatically remembered her father murdering a friend of hers when both the girls were eight years old. Franklin's conviction was later overturned in another court for want of hard evidence.

Bruce Thornton wrote in his book Plagues of the Mind, "the numerous convictions of ... fathers and day-care workers based on memories fabricated by neurotics and therapists, or on coaxed-out lurid fantasies of pre-rational children, testify to the destructive effects false knowledge can have, particularly when it cloaks itself in pseudoscientific jargon."

Professor Loftus suggests a possible reason for such false accusations.

"One answer is that suggestive interviewing or other suggestive influences helped to create false beliefs or memories," Loftus said.

Criminal defense lawyers caution that the law must protect the criminally accused by making sure that allegations are proved beyond a reasonable doubt, not just on the heartfelt memory of a single person many years after the alleged fact.

Given the difficulty of "telling the difference between real and implanted recollections," Crews said, it is clearly imprudent for any court to accept uncritically and without further evidence the word of the accuser about crimes if he or she had not at all recalled the event in question before a therapy meeting recently and long after the alleged crime.

Because American courts have come to realize this, Crews said, they have been "moving back" to the position they adhered to before the child-abuse cases of the 1980s: "The standards of evidence for verifying a charge of long-past molestation ought to be the same as for any other legal allegation."