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
(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
(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
(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
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
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) 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
(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.