Appendix A: Decision Tree Regarding Factors Hypothesized to be Associated with Valid or Invalid Complaints by Adult Litigants of Childhood Sexual Abuse

(1) Is the patient a bona fide patient?

Yes: Reasons for entering therapy appear clearly related to painful/stressful events or conditions that the patient could no longer manage, and for which he or she appears motivated to change.  Litigation has not been contemplated, has not yet been begun, has not been recommended by legal counsel, nor has legal counsel been seen.  Litigation does not become an issue early in the treatment process.  The therapist does not raise the issue of litigation.  Financial or other secondary gain considerations do not appear to be a predominant factor in the person's presenting problems.  Patient follows recommendations of therapist and appears to be cooperative and engaged.  Patient continues treatment until issues appear resolved.  Patient does not select or change therapists for non-therapeutic reasons, e.g. to find a therapist who will serve as expert witness, to find a therapist who will uncritically accept that abuse has occurred.

 

If Yes to (1), consider the possibility that at least some aspects of the legal claim will be true.

 

(2a) If Yes to (1), have memories of abuse always been present?

(2a) Yes: In the course of ordinary inquiry in initial work-up of patient, he or she either volunteers a history of abuse or upon inquiry gives such history.  Patient does not claim to have forgotten or repressed such memories.

If yes to (2a), conduct forensic examination to assess actual impact of abuse upon functioning across time.  Abuse is more likely to have actually occurred and is less likely to be a product of the therapeutic relationship.  Make certain that extra-therapeutic influences did not enter into the claim. Go to (4a).

(4a) If yes to (2a), Were there any identifiable extra-therapeutic influences which entered into the claim, such as media exposure, self-directed reading, acquaintance with victims outside therapy setting, participation in classes or seminars or self-help groups, or close relationships with relatives or friends who are abuse survivors?

(4a) Yes: Significant factors influencing and shaping the nature of the claims can he identified outside the therapeutic environment.  Then one or more environmental factors may be present suggestive of learned behavior, or exaggeration or fabrication involved in the claim.  Testing will be particularly important.  It is suggested that if psychological testing has been previously administered, data should be carefully reviewed.  Use some techniques that are not familiar to the plaintiff.  Get a good baseline of both abuse and non-abuse memories across various time frames.  If testing not valid and not consistent with claims, consider the possibility that the case may include exaggerated symptomatology or may reflect components of malingering.

(4a) No: Significant factors influencing and shaping the nature of the claims were not identified outside the therapeutic environment.  There appears to be no obvious situational or potentially contaminating sources that have unduly influenced the making of the claim.  Conduct extensive psychological testing, and if the findings are valid and appear consistent with the nature and extent of claim, then accept as a probably valid case.

(2a) No: Recall or report of abuse did not occur until after entering psychotherapy. Go to (3a).

(3a) Were the recovered memories the product of specific repeated exploration, use of intrusive techniques such as hypnosis, "body" work or experiential work leading to emotional regression, or involving treatment groups with abused persons, or directed reading in therapy?

(3a) Yes: Carefully analyze any potential sources of contamination and influence for the claims being made.  Ascertain the extent to which the alleged recovered memories are consistent with what is known empirically about human/developmental memory processes.  Carefully analyze the evolution of the claims over time, how they evolved during the course of the treatment.  Look closely at the therapeutic records and the therapeutic methods.  Consider also extra-therapeutic influences.

If yes to (3a), Go to (5b).

Consider the likelihood that factors may be present suggestive of learned behavior, or exaggeration or fabrication involved in the claim. Testing will be particularly important.  It is suggested that if prior psychological testing exists, it should be carefully reviewed.  Use some techniques not familiar to the claimant.  Obtain a baseline of both abuse and non-abuse memories across time frames.  If psychological testing is not valid or not consistent with claims, consider the likelihood that the case may include exaggerated symptomatology or may reflect components of malingering.

(3a) No: Recovery of memories seems to be a product of spontaneous recall, either in a therapeutic session or outside of the session, as a product of free association with other events contiguous in time, location, or people.  Memories show evidence of context and details equal in richness as client generates for other events in same time frame or later.  Memories do not appear as either sparse or over-elaborated in comparison to baseline memories.  Memories have features commensurate with the age-level with which they are purported to have occurred.  There is no apparent primary or secondary gain which is obvious for the recovery of the memory.  In such cases, consider the possibility that the recovered memories may reflect actual abuse.  Make certain that sources of serious contamination and influence from either within or outside treatment have been ruled out.  Conduct testing and weigh all evidence for consistency across time.

1) Is the patient a bona fide patient?

No: Reasons for entering therapy may not be completely clear, although there may be current stressors that have gone on for significant periods of time.  Financial stressors may appear predominant, or attorney already consulted, or litigation has already begun, or therapy has been recommended by legal counsel, or litigation has been contemplated, or litigation is raised as an issue at an early stage in the treatment, or therapist has raised issue of litigation.  Or, in some cases, the patient entered therapy but did not continue despite claims of severe dysfunctioning.  Patient did not continue treatment until issues appeared resolved or maximal benefit from treatment had been achieved.  Patient did not follow recommendations of therapist or did not appear to be cooperative and engaged in the treatment.  Patient sought or changed therapists for non-therapeutic reasons, e.g., to find a therapist who will serve as expert witness, or to find a therapist who will uncritically accept an account of abuse.

If No to (1), consider the case to have a higher likelihood of malingered or exaggerated components.

(2b) Have memories of abuse always been present?

(2b) Yes: In the course of ordinary inquiry in initial work-up of patient, he or she either volunteers a history of abuse or upon inquiry gives such history.  Patient does not claim to have forgotten or repressed such memories.  Forensic exam should probably focus on the extent of impairment actually attributable to the alleged abuse, particularly any claims of sudden deteriorating functioning at a point in time consistent with onset of litigation.  External investigation of the individual's life and whether his or her observed functioning is consistent with the claims of dysfunctioning should be a major focus.  Psychological testing also important.

(2b) No: Recall or report of abuse did not occur until after entering therapy.

If No to (2b) consider the likelihood that there may be considerable inaccuracies, shaping or even fabrications in the recalled abuse.  There should be extensive investigation into the nature of the therapy and extensive external investigation of the litigant and the psychotherapist.  Carefully review therapy records. Go to (3b).

(3b) Were the recovered memories the product of specific repeated probing and exploration, use of intrusive techniques such as hypnosis, "body" work or experiential work leading to emotional regression, or involving groups with abused persons, or directed reading in therapy?

(3b) Yes: Consider the likelihood that the claimant has learned from the therapist or others what such a claim should look like.  Ascertain the extent to which the fact pattern is consistent with what is known from a criminological victimology standpoint for the type of case purported to have occurred.  Examination will have to be quite sophisticated and lengthy to get past those aspects of the account which may have been extensively rehearsed, discussed with others, or otherwise acquired either consciously or unconsciously.  Ascertain the extent to which the plaintiff can describe the idiosyncratic aspects of his or her experiences beyond the scope of information commonly available to survivors.  Ascertain the extent to which claimed experiences may be based on misunderstanding of expected or known patterns, or how they appear consistent/inconsistent with test findings.  Review extra-therapeutic influences.  Conduct detailed psychological testing.

(3b) No: Consider the likelihood that the claimant has on his or her own or through influences from outside the therapy, e.g., media, friends, support groups, attending classes/seminars, reading, has generated false claims.  Conduct detailed investigation of these sources.  Ascertain the extent to which the plaintiff's case may be built on misconceptions or overgeneralizations.  Consider whether such misconceptions were generated out of a need for approval and meeting dependency needs, or out of a need to explain a failure or loss of some kind.  Conduct detailed psychological testing.  Again, examination may have to be lengthy and sophisticated to get past those aspects that may have been learned and extensively rehearsed.

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