Debunking 'false memory' 

myths in sexual abuse cases

Introduction. For many years, adult survivors of child sexual abuse have been filing civil claims for damages.
In some cases, plaintiffs file their claims decades after the abuse ends because the nature of the trauma renders
them incapable of filing earlier.

These cases can be broken down into two categories. In "recovered memory" cases, victims had no memories of
the abuse until years later. In "appreciation" cases, victims remembered being abused but did not appreciate the
causal relationship between the childhood abuse and the psychological and emotional injuries they suffer as
adults. This article addresses an issue that is likely to come up only in the former category of cases.

Recovered memory cases are facing new and substantial pre-trial hurdles, sometimes leading to dismissal orders
and summary judgment decisions that deny victims their day in court. At the heart of the problem is the largely
contrived controversy around "false memory syndrome" and the alleged unreliability of "repressed" memories.

While public debate about so-called false memories has been raging for years, increasing numbers of trial and
appellate court decisions involving this issue are just now being issued. These decisions reflect significant lack
of uniformity among the courts, not only in the results but also in the reasoning and even in the context within
which the memory issues are analyzed.

The typical defense strategy in these cases is to file pre-trial motions challenging the reliability, and hence
admissibility, of expert testimony regarding recovered memories. In some cases, these motions are filed as early
as the preliminary injunction stage. Reliability issues are also raised in motions to dismiss and for summary
judgment.

Usually, the defense also seeks to offer its own "expert" testimony to counter the plaintiff's scientific evidence
that the mind can avoid or repress traumatic information and then recall it years later.

The plaintiff's best approach is to anticipate this defense strategy and take the first step by filing a motion to
exclude the defendant's evidence. Plaintiffs should file this motion early to persuade the court that the
defendant's assets should be attached because the claim has merit.

While there is not yet a reported court ruling on this type of motion, this strategy will likely work as a
preemptive strike against inevitable attacks on the plaintiff's experts. It will also provide judges with accurate
information about the scientific reliability of traumatic memory evidence.

Defense use of Daubert

To support their efforts to exclude recovered memory evidence, defendants generally rely on the U.S. Supreme
Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. /1/ Under Daubert, the proponent of an expert
opinion based on scientific knowledge must establish the opinion's reliability and relevance before it may be
admitted. Whether the proponent has satisfied these requirements "entails a preliminary assessment of 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 in issue."/2/

The relevance prong is fairly straightforward. As the Court noted, "[E]xpert testimony which does not relate to
any issue in the case is not relevant and, ergo, non-helpful."/3/ Defining "helpfulness" in Daubert, the Court said
there must be a "valid scientific connection to the pertinent inquiry as a precondition to admissibility."/4/

The reliability prong is more problematic. Most courts properly read Daubert to determine reliability by
examining the integrity of the methodology behind the opinion. However, Daubert's application has been
awkward in recovered memory cases because the decision discussed scientific reliability in a toxic tort case
involving objectively testable "hard" science.

Daubert's indicators of reliability have limited value when the testimony at issue is rooted in behavioral or "soft"
sciences.

It would be reasonable for a court to rule that classic scientific principles cannot resolve the reliability question
in recovered memory cases. But, if an attempt is made to determine reliability, traumatic memory research
should be judged by standards different than those applied in Daubert. For example, a court might apply the
standards used to determine the admissibility of diagnoses listed in the fourth edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV). Published by the American Psychiatric Association, this book
is the foremost diagnostic manual of the mental health profession.

In a small but disturbing trend, some courts read Daubert to require the plaintiff to demonstrate the scientific
reliability not only of expert testimony involving traumatic memory science, but also of lay testimony. This
effectively requires the plaintiff to prove the reliability of his or her own memory. In effect, some courts have
required plaintiffs to establish their personal credibility to a degree of "scientific certainty," even though personal
credibility in a civil trial can be established by a mere preponderance of the evidence./5/

When a Daubert hearing leads to the exclusion of the expert's opinion and the plaintiff's personal testimony,
summary judgment for the defense almost always follows because the plaintiff usually has little, if any, evidence
remaining.

While a few courts have reached this drastic result, more sophisticated decisions properly acknowledge the
overwhelming scientific support for the reliability of recovered memory evidence. In these cases, summary
judgment is denied, and the credibility of the plaintiff's testimony is, as it should be, determined by the jury./6/

Another common defense tactic is to try to have the case dismissed on statute of limitations grounds. Under state
laws, the statute of limitations may or may not be tolled in recovered memory cases. Most states have some
flexibility, if not in the common law, then by statute.

When the defense challenges a filing delay, courts sometimes undertake a Daubert analysis of traumatic memory
science to determine whether the plaintiff should be allowed to rely on expert testimony to justify the delay.

Plaintiff lawyers who understand the defense strategy in these cases can head it off by taking the first step into
the recovered memory debate. Filing an affirmative motion to exclude the defendant's expert evidence about
"false" memories is an aggressive way to defend traumatic memory science.

The motion may be filed according to Daubert's standards or under Federal Rule of Civil Procedure 403 (general
helpfulness) or 702 (helpfulness of "scientific, technical, or other specialized knowledge"). Lawyers may also
use state law analogues to Daubert and the federal rules.

The defense will seek to introduce as evidence published and unpublished studies purporting to demonstrate the
existence of "false memory syndrome." The defense will also seek to introduce research allegedly showing that
the mind can be "implanted" with false memories of sexual abuse. Defendants may also try to offer evidence that
traumatic events-for example, the space shuttle Challenger explosion-are highly memorable and cannot be
repressed.

The plaintiff's motion to exclude this evidence should argue that none of it evaluates whether the mind is capable
of repressing child sexual abuse. Accordingly, the evidence should be excluded regardless of scientific reliability
because it is irrelevant and cannot assist the jury in deciding issues in the case.

The reality of traumatic memories

Research conducted over more than 100 years shows that the mind can avoid conscious narrative or visual recall
of traumatic information and recover it years later. Several recent publications provide good overviews of the
scientific support for recovered memories of sexual abuse survivors./7/

In studies dating back to the 19th century, French philosopher and psychologist Pierre Janet found evidence that
victims of trauma experienced amnesia for some or all aspects of the trauma./8/ According to Janet, traumatic
memories consist of images, sensations, and emotional and behavioral states. This is different from narrative
memory-what laypeople commonly refer to as memory-otherwise known as symbolic or explicit memory.

Janet observed that intense emotional experiences could lead to continuous and retrograde amnesia that splits off
the traumatic memories from ordinary consciousness. The traumatic information is nonetheless retained as
"unconscious fixed ideas" that cannot be assimilated into consciousness as long as they have not been
acknowledged and understood. Inability to understand and face the trauma causes it to intrude into
consciousness in the form of terrifying perceptions, obsessional preoccupations, and anxiety disorders.

Janet's findings have consistently been confirmed in studies over the past century, including several in recent
years (see accompanying sidebar). His research helps explain why some visual memories are recovered when
stimulated by an emotional reminder of the traumatic event. To some extent, this is like the emotional reminder a
person experiences when he or she hears an old love song or smells the cologne or perfume of a loved one.

Because of strong support in the research, recovered memory science has been recognized as valid by a number
of medical authorities:

American Psychiatric Association. The DSM-IV recognizes the existence of posttraumatic stress disorder,
dissociative amnesia, and dissociative identity disorder.9 Each of these terms, which refer to what laypeople
usually call "repression," describes a fragmenting of the brain during a traumatic experience. This fragmenting
process illustrates why trauma victims often cannot relate a cohesive visual narrative of child sexual abuse and
why sometimes the memories of those incidents resemble seemingly unconnected and sometimes objectively
unbelievable pieces of events.

These diagnoses reflect a well-established scientific recognition that the mind can avoid conscious visual recall
of traumatic experiences. In most cases, the mere fact that these diagnoses are listed in the DSM-IV should be
ample evidence to establish the reliability of expert scientific testimony about recovered memories.

The association has also issued a formal "Statement on Memories of Sexual Abuse," which noted,

Children and adolescents who have been abused cope with the trauma by using a variety of
psychological mechanisms. In some instances, these coping mechanisms result in a lack of
conscious awareness of the abuse for varying periods of time. Conscious thoughts and feelings
stemming from the abuse may emerge at a later date./10/

American Medical Association. A report of the AMA's Council on Scientific Affairs confirmed that there are
cases in which amnesia resulted from childhood sexual abuse and that the "recovered memories proved to be
correct."/11/

British Psychological Society. This organization issued a working group report that called the false memory
position on repression "extreme." According to the report, the scientific evidence reveals that between one-third
and two-thirds of abuse victims had periods when they "totally or partially forgot the abuse." The report also
noted that there is "much less evidence on the creation of false memories."/12/

American Psychological Association. A recent association report acknowledged that "it is possible for memories
of abuse that have been forgotten for a long time to be remembered."/13/
Defense evidence

To counter this overwhelming evidence that the mind is capable of repressing traumatic memories of child
sexual abuse, defendants will attempt to have their experts testify about "false memory syndrome," the
"implanting" of "false memories," and the "highly memorable nature" of traumatic events. Plaintiff lawyers can
make a strong case that none of these is reliable or relevant to child sex abuse cases.

False memory syndrome. This simply does not exist as a recognized medical condition. The phrase was coined
by the False Memory Syndrome Foundation, an organization formed to provide legal and emotional support to
those accused of sexual abuse.

While nobody would argue that memory is perfect, imperfection is hardly enough to merit recognition of a
medical syndrome. Indeed, the DSM-IV nowhere recognizes this condition, and no studies or research exists to
suggest that anyone suffers from it.

Defense experts sometimes try to demonstrate that false memories exist because people have been known to
allege that they were sexually abused as children, only to recant later.

While recantations do occur, albeit infrequently, they usually occur because the victim was rejected by his or her
family, because the memory was too painful to manage, or because the victim was threatened. Sometimes, a
victim agrees to recant his or her story as part of a confidential settlement. Whatever the motivation for
recantations, they hardly demonstrate the existence of "false" memories.

Given the lack of any scientific basis for false memory syndrome evidence, testimony about the syndrome
clearly cannot satisfy Daubert's reliability prong. Moreover, this testimony has no probative value in most of
these cases. Without probative value or scientific integrity, this testimony should be excluded.

"Implanted" memories. Defense experts often testify about studies showing that people are suggestible and may
be misled to believe, for example, that they saw a certain color or witnessed a particular event. These studies do
not involve protracted, secret child sexual abuse, so the testimony has no bearing on most recovered memory
cases.

Moreover, there is no scientific evidence to suggest that the mind is capable of being "implanted" with wholly
false memories of sexual abuse. In a recent study, scientists tried to mislead adult test subjects to believe that
they had been lost in a shopping mall as children. They also tried to convince them that they had experienced
rectal enemas as children.

While 3 out of 20 subjects erroneously claimed to have been lost in the mall (a relatively common and familiar
experience), no subjects would erroneously agree that they had had a rectal enema./14/

Defense experts, nevertheless, will try to testify that it is possible to implant false memories of sexual abuse
based simply on the fact that human beings are vulnerable to suggestion. To be sure, advertising would not exist
if people were not suggestible to some degree. However, persuading a person to buy a product is a far cry from
implanting a wholly false memory of rape.

The highly memorable nature of traumatic events. Defense experts will try to offer anecdotal testimony about
reactions to traumatic public events like the Challenger explosion and the assassination of John F. Kennedy.
They seek to prove that these experiences are highly memorable and not capable of being repressed. But these
public events in no way compare with the highly personal and often protracted trauma of child sexual abuse.

Even if the testimony that the defendant's experts wish to offer could be seen as marginally relevant in some
cases, courts should exclude it because it imposes on the jury's function of determining the credibility of a
witness.
This evidence will confuse, mislead, and unfairly prejudice the jury against the plaintiff, and it will needlessly
consume the court's time in the trial of collateral issues.

Aggressive strategy

Overwhelming scientific evidence demonstrates that the mind is capable of avoiding conscious recall of
traumatic memories of sexual abuse and then recovering them. Whether the mind behaved in this manner in a
particular case should be an issue for the jury.

The defendant's approach in these cases is to counter well-established science with tangential research. This
tactic threatens to deny sexual abuse victims their day in court by questioning their personal credibility under the
guise of seeking "scientific reliability."

Plaintiff attorneys who pursue an aggressive litigation strategy that anticipates this defense will help level the
playing field. The key is to support the plaintiff's case by providing the court with overwhelming evidence of the
reliability of traumatic memories.

Supported studies on recovered memories

F. Albach et al., Memory Recovery of Childhood Sexual Abuse, Dissociation (1997, in press).
J. Briere & J. Conte, Self-reported Amnesia for Abuse in Adults Molested in Childhood, 6 J. Traumatic
Stress 21 (1993).
A.W. Burgess et al., Memory Presentations of Childhood Sexual Abuse, 33 J. Psychosocial Nursing &
Mental Health Servs. 9 (1995).
C. Cameron, Women Survivors Confronting Their Abusers: Issues, Decisions and Outcomes, 3 J. Child
Sexual Abuse 7-35 (1994).
D.M. Elliott & J. Briere, Posttraumatic Stress Associated with Delayed Recall of Sexual Abuse: A General
Population Study, 8 J. Traumatic Stress 629 (1995).
Shirley Feldman-Summers & Kenneth S. Pope, The Experience of "Forgetting" Childhood Abuse: A
National Survey of Psychologists, 62 J. Consulting & Clinical Psychol. 636 (1994).
Judith Lewis Herman & Emily S. Schatzow, Recovery and Verification of Memories of Childhood Sexual
Trauma, 4 Psychoanalytic Psychol. 1 (1987).
Richard P. Kluft, The Argument for the Reality of the Delayed Recall of Trauma, in TRAUMA AND
MEMORY: CLINICAL AND LEGAL CONTROVERSIES 25 (Paul S. Appelbaum et al. eds., 1997).
Elizabeth F. Loftus et al., Memories of Childhood Sexual Abuse: Remembering and Reprising, 18
Psychol. Women Q. 67 (1994).
Melissa A. Polusny & Victoria M. Follette, Remembering Childhood Sexual Abuse: A National Survey of
Psychologists' Clinical Practices, Beliefs, and Personal Experiences, 27 Prof. Psychol.: Res. & Prac. 41
(1996).
Catherine M. Roe & Mark F. Schwartz, Characteristics of Previously Forgotten Memories of Sexual
Abuse: A Descriptive Study, 24 J. Psychiatry & L. 189 (1996).
T.A. Roesler & T.W. Wind, Telling the Secret: Adult Women Describe Their Disclosures of Incest, 9 J.
Interpersonal Violence 327-38 (1994).
Lenore Terr, What Happens to Early Memories of Trauma? A Study
of Twenty Children Under Age Five at the Time of Documented Traumatic Events, 27 J. Am. Acad. Child
& Adolescent Psychiatry 96 (1988).
B.A. van der Kolk, The Body Keeps the Score: Memory and the Evolving Psychobiology of Posttraumatic
Stress, 1 Harv. Rev. Psychiatry 253 (1994).
B.A. van der Kolk & R. Fisler, Dissociation and the Fragmentary Nature of Traumatic Memories:
Overview and Exploratory Study, 8 J. Traumatic Stress 505 (1995).
 L.M. Williams, Recall of Childhood Trauma: A Prospective Study of Women's Memories of Child Sexual
Abuse, 62 J. Consulting & Clinical Psychol. 1167 (1994).

Notes (use "Back Button" on browser to return to text)

1. 509 U.S. 579 (1993).

2. Id. at 592.

3. Id. at 591 (quoting 3 JACK B. WEINSTEIN ET AL., WEINSTEIN'S EVIDENCE ¶702[02], at 702-18
(1988)).

4. Id. at 592.

5. State v. Hungerford, 1997 N.H. Lexis 64, *24 (N.H. 1997); S.V. v. R.V., 933 S.W.2d 1, 18-20 (Tex. 1996) (but
see powerful dissent by Justice Owen).

6. Shahzade v. Gregory, 923 F. Supp. 286 (D. Mass. 1996); see Hoult v. Hoult, 57 F.3d 1 (1st Cir. 1995); Isely v.
Capuchin Province, 877 F. Supp. 1055 (E.D. Mich. 1995); Phinney v. Morgan, 654 N.E.2d 77, 80 (Mass. App.
Ct.), review denied, 656 N.E.2d 1258 (Mass. 1995); Ault v. Jasko, 637 N.E.2d 870, 872 (Ohio 1994).

7. DANIEL BROWN, MEMORY TRAUMA TREATMENT AND LAW (1997, in press); JENNIFER J.
FREYD, BETRAYAL TRAUMA: THE LOGIC OF FORGETTING CHILDHOOD ABUSE (1996); B.A. van
der Kolk & R. Fisler, Dissociation and the Fragmentary Nature of Traumatic Memories: Overview and
Exploratory Study, 8 J. TRAUMATIC STRESS 505 (1995).

8. See generally PIERRE JANET, L'AUTOMATISME PSYCHOLOGIQUE (1889).

9. DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS §300.12, at 478-81, §309.81, at

10. AMERICAN PSYCHIATRIC ASS'N, STATEMENT ON MEMORIES OF SEXUAL ABUSE (1993).

11. COUNCIL ON SCIENTIFIC AFFAIRS, AM. MED. ASS'N, MEMORIES OF CHILDHOOD ABUSE
(1994).

12. BRITISH PSYCHOLOGICAL SOC'Y, REPORT BY THE WORKING GROUP ON RECOVERED

13. AMERICAN PSYCHOLOGICAL ASS'N, FINAL REPORT FROM THE WORKING GROUP ON
INVESTIGATION OF MEMORIES OF CHILDHOOD ABUSE (1996).

14. K. Pezdek, Planting False Childhood Memories: When Does It Occur and When Does It Not? paper
presented at the 36th Annual Meeting of the Psychonomics Society (Nov. 10-12, 1995).