Lawyers and Memory: The Impact of Repressed Memory Allegations of Abuse on the American Courtroom

Philip S. Simmons*

ABSTRACT: The child abuse and false allegation crises which have been assaulting American families have given rise to new challenges for attorneys attempting to deal with these complex issues.  Traditional advocacy-based litigation may not provide an adequate remedy for child abuse survivors, or for those who have been falsely accused.  Attorneys must become better informed as to the specialized needs of both adult and minor clients in child abuse cases, as well as other cases arising through recovery of repressed memories.  Both defense and prosecution attorneys practicing in this area must develop a better understanding of the dynamics underlying the memories which form the foundation of child abuse allegations, and the means by which the veracity of such allegations can be assessed
  

The False Memory Epidemic

Although eyewitness testimony is one of the most powerful tools in a litigator's arsenal, recent events threaten to seriously diminish the effectiveness of a credible witness's testimony as to the identity of a perpetrator, or the circumstances surrounding an event.  The aspect of human psychology common to all eyewitness testimony is the witness's memory, and such memory has historically been able to form a firm foundation for a lawyer's case.  In recent months, however, the controversy over the veracity of recovered memories of childhood abuse has brought the fundamental validity of memory itself under close scrutiny.  New specialties in psychology, law, and medicine have arisen which focus on the dynamics of memory storage, retention, and recovery.  Questioning of firmly held beliefs concerning the veracity of victims' or witnesses' memory processes threatens to shake up long-established beliefs, practices and procedures in courtrooms and legislatures across the country.  Various professional journals have been replete with articles concerning the problems attendant to the child abuse crises, and an ever increasing number have begun addressing the recovered memory controversy.  It is now time to address the role attorneys must play in resolving the difficulties raised by child abuse allegations based on recovered memories.

The memory issue pervades all areas of legal practice.  It is not limited to allegations of abuse based on the recovery of long-repressed traumatic memories.  However, the attacks on the reliability of witness memory have arisen through the plethora of molest allegation cases in recent years.  Nobody questions the scope or seriousness of the child abuse epidemic in America, or the lives that are continuing to be ruined by this most insidious of crimes.  In order to best understand the difficulties that surround recovered memories of abuse, however, it is necessary to study the concurrent epidemic of false and fraudulent allegations.  How attorneys and their expert witnesses approach these cases can form a template upon which all attorneys, in all areas of practice, will be able to draw.  This understanding requires an awareness of the social and therapeutic dynamics that underlie both the child abuse phenomenon and memory-biased allegations.  Also, lawyers must come to terms with the often overwhelming difficulty in attacking the veracity of an honestly held belief.  The following discussion provides a foundation for use by attorneys in honestly and effectively dealing with recovered memory-based allegations of childhood abuse.

The epidemic of false or fraudulent molest allegations is spreading, and no one is immune.  It is indifferent to socio-economic and cultural boundaries, and the number one risk factor for being falsely accused is simply having children.  At some point, the terrible allegation of child abuse is more likely than not to tarnish the lives of someone we know, a family member, or a client.  Attorneys, therapists, legislators, physicians, clergy, and lay individuals alike should develop at least a rudimentary understanding of the genesis of such allegations.  This understanding will help prepare for the day when you, a family member, or a client are accused of having committed the most terrible of crimes, molesting a child.
  

The Legal Challenge

From a legal perspective, civil practitioners dealing with allegations of molest are confronted by a troubling hybrid of civil and criminal practice.  Traditional tort law involves monetary compensation for wrongs allegedly perpetrated by a defendant against the plaintiff.  Molest allegations substantially implicate the fundamental constitutional rights to life, liberty (including familial rights), and property.  Fortunately or not, depending on the guilt or innocence of the accused, civil procedure provides much less protection for civil defendants than criminal procedure provides for those prosecuted by the State.

Therein lies a significant part of the problem surrounding civil cases based on molest allegations.  As memory-recovery therapies proliferate, and as the media brings lurid exposure to both actual and false claims of abuse, the number of civil cases based on such claims has been increasing at an alarming rate.  Unlike criminal indictments, civil plaintiffs are not restricted by any legal standard of probable cause prior to making the allegations.  Furthermore, sympathy for the victims of abuse has pushed the standard for a "frivolous suit" virtually out of existence.  Because of the different goals motivating civil plaintiffs and criminal prosecutors, and the different burden of proof required in civil versus criminal cases, there is a much greater risk of false allegations resulting in a miscarriage of justice in civil court than in a criminal action.

Those accused of molestation in a civil action find their fundamental constitutional rights in nearly as much jeopardy as if they had been criminally prosecuted.  The civil action begins with an accusation of having committed one of the most reprehensible of crimes.  In the course of the civil molest litigation, a criminal accusation must be developed, defended against, and ultimately adjudicated.  The accused individual faces the potential deprivation of family, livelihood, reputation, and property.  Nonetheless, civil courts do not impose an "innocent until proven guilty" standard on the proceedings, and do not require a finding of "guilt beyond a reasonable doubt."

Attorneys involved in the civil defense of those accused of molest must realize that the cards are heavily stacked in favor of the plaintiff.  There is inevitably a presumption of "guilt," although technically guilt or innocence is not a determination to be made by a civil fact-finder.  The defense attorney cannot rely on stringent compliance with rules of evidence that would be applied to a criminal matter.  Legal practice, as well as judicial and legislative reform, must become sensitive to the quasi-criminal character of civil molest cases.  Defendants in civil molest trials may not wind up in prison, but once an individual is found liable for having molested a child, "freedom" can contain all the loneliness and pain that is experienced by a criminal sentenced to solitary confinement.  If the civil defendant actually committed the molest, then such a "judgment" is appropriate.  But the entire concept of civil litigation is based on the principle that the limited jeopardy to the defendant (generally economic damages) requires a lower threshold of certainty on the part of the fact-finder.

One of the greatest tragic ironies in our judicial system is that the common paucity of evidence in support or defense of molest allegations often results in an unjust outcome in both actual and false molest cases.  The lower standards of proof in civil cases allow civil fact-finders to determine that the lack of an adequate body of evidence in defense of a falsely accused individual is sufficient "proof" to hold the accused liable of having committed the molest.  The higher standards of proof in criminal cases prohibits the fact-finder from judging guilt unless the accuser can provide corroborating evidence of the molest "beyond a reasonable doubt."  As we will see, this often results in the inability of the system to successfully prosecute those actually guilty of having committed the crime.

In recent years, both the courts and the media have been full of cases and stories arising through recovered memories of molestation and abuse.  Ever since the McMartin Preschool trial grabbed the attention of the mainstream media in 1987,1 high profile cases of child molestation and satanic ritual abuse have been the fodder of ratings for virtually every media organization in the country.  Television news programs and talk shows feed their viewers a steady diet of stories concerning child abuse.  In an attempt to separate the relevant issues from the sensationalism, nearly every major legal, psychological, and social science professional journal has made at least one attempt to clarify the numerous complex issues surrounding the problem.  As the fact and consequences of abuse become common knowledge, our country is beginning to experience fallout from the lessons our citizens are learning from these media events.
  

Social and Psychological Dynamics

The prevalence and horror of child abuse is nothing new.  What is relatively new is the epidemic of plaintiffs who are basing child abuse claims on memories which have allegedly been recovered after years or decades of repression.  The recovered memory phenomenon has inundated the media, and it is now commonplace for major book stores to have entire separate sections for the numerous books dealing with survivors and the recovery from incest and abuse.  The public is fascinated by the sensational perversity and breach of absolute trust reflected in allegations of molestation by parents, priests and teachers.  Unfortunately, this fascination is a sensationalism-based distraction from the true insidious nature of the problems surrounding the molest allegation controversy.  The true nature of the problem finally came to light recently with the California cases involving Gary and Holly Ramona.2

The issues raised by the Ramona trial and decision are valuable in helping to understand the monumental devastation that is occurring throughout America as a result of the recovery of long-repressed memories of abuse.  The uncertainty as to whether or not Holly Ramona's memories of abuse are accurate demonstrates the difficulties involved in handling either side of a lawsuit based on recovered memories.  As an accuser, Holly Ramona is an intelligent, articulate, and highly credible witness.  What makes her so believable is what makes cases of this type so difficult — as with many plaintiffs of this type, she appears to honestly believe the horror stories of abuse that she relates with such passion and conviction.

The problems which surround recovered memories stem from the difficulty in ascertaining whether or not the recovered memories reflect actual events. Elizabeth Loftus, professor of psychology and adjunct professor of law at the University of Washington,3 provides a conceptual framework which is valuable in any memory-based claim or testimony can be distorted:

Perhaps we could use a child's analogy and think of memory as a chunk of clay that we hold in our hands, allowing it to warm before we mold it into different shapes.  We can't change the clay into a rock or water or cotton, but we can transform it, push it, dent it, bend it, make animals and shapes, faces and forms, designs and textures.  When we have finished with our manipulations, we put the molded form into the oven of our minds where it bakes until it is hard and firm.

Our distortions have become a hard reality, part fact, part fiction, but in our minds an exact representation of the way things were.4

When prosecuting or defending cases based on recovered memory, it must always be kept in mind how persuasive an honestly believed false or distorted memory can appear to a therapist, social worker, police investigator, judge or jury.

The issues surrounding repressed and recovered memories have historically been considered the exclusive province of the psychological sciences.  However, thousands of cases like Akiki,5 Wade6 and Ramona prove that the issue has transcended the therapeutic arena, and is spreading like a virus through the country's communities, courts and legislatures.  Without coordinated efforts by lawyers, social services professionals, legislators, and psychologists to prevent the perpetration of false and fraudulent molest allegations, cases based on such allegations will continue to ruin thousands of innocent lives, families and communities.

Another of the tragic ironies of the false allegation problem is that it arose, in large measure, out of society's attempts to deal effectively with the horrors of real child abuse.  Our attempts to find solutions have given rise to new horrors that in some ways may threaten to damage nearly as many lives as child abuse itself.  Author and social worker Michael Robin points out that "... as society intervenes into families on behalf of children, it must do so with caution and due regard to the needs and rights of both children and their families ... includ[ing] the right to due process of law as well as protection from those who might bear false witness."7  The 1994 San Diego County, California and Merced County, California Grand Juries recognized that such caution is not being exercised.  The San Diego report admonished that "Because the District Attorney's office is charged not only with pursuing and prosecuting criminals, but also with doing justice, the fine balance that must be struck is easily outweighed by overzealous prosecution. "8

Shielded from liability by absolute immunity statutes which have been enacted in most states,9 many therapists and social services caseworkers have been instrumental in initiating dependency and criminal actions against alleged perpetrators based on limited and inadequate substantial investigation.  This reckless disregard for the truth or falsity of the allegations resulted in the San Diego Grand Jury condemnation of therapists who are "not only trying to treat the children, but [are] also attempting to be criminal investigators."10  To compound the problem, the family and dependency courts often permit the suspension of due process, and frequently allow substantial roadblocks to be thrown in the path of discovery and evidentiary review.  Because all of this is done in the interest of protecting the children, attempts at change are often met with suspicion or disdain.
  

Types of Molest Allegations

Allegations of molestation can be characterized into three distinct types, and each type can potentially give rise to either civil or criminal actions in state or federal court.  The United States Supreme Court has held that parents' rights to visitation with their children constitute a fundamental constitutional right.  The denial of this right to parents wrongfully accused of child abuse is often cited as the grounds for a due process violation.  Federal actions are generally filed under 42 U.S.C. 1983,11 although some creative litigators have also begun filing claims pursuant to 31 U.S.C. 3729 et seq. (the False Claim Act).12

The three categories of molest allegations are:

bulletAllegations based on recent, current or retained memories.  These allegations form the vast majority of accurate accusations of molest.
  
bulletFraudulent allegations, which are simply fabrications that the accuser knows to be untrue at the time the allegations are made.13
  
bulletAllegations based on the recovery of memories which had previously been repressed or forgotten.14  These memories may be accurate, but can be subject to tremendous distortion.  The legal challenges in dealing with this type of allegation go well beyond traditional evidence-based advocacy.

Effectively dealing with cases of false molest allegations requires an understanding of the dynamics which give rise to the false or fraudulent "memories" upon which the allegations are based.  Understanding the dynamics will assist in conducting an effective investigation and preparing a successful case-in-chief.  Between the two categories of false allegations, the psychological community is deeply split as to which is predominant, although all categories of molest allegations are increasing at an alarming rate.

Claims which can be characterized as "fraudulent" are reflective of our society's apparent willingness to embrace the "abuse excuse."15  This powerful tool of unaccountability can be used by an angry or frustrated child or adult in an attempt to punish a parent, relative, or other individual who the accuser rightly or wrongly perceives as having done the accuser harm.  With children, these types of allegations commonly appear in the context of divorce or custody disputes, with the allegations often being induced through heavy coaching or "contamination"16 by one of the parents.  In cases involving older children and adults, the fraudulent allegations are frequently calculated to relieve troubled individuals of personal responsibility for their real or perceived failures in life.

Molest claims arising through recovery of repressed memories represent a far more controversial type of false allegation.  Improperly utilized therapy techniques that plant the seed of a memory, and then guide the patient through a reconstruction of events that may never have taken place, can result in false or distorted "memories" which are virtually impossible to distinguish from accurate memories of actual events.  Although recognized as frequently unreliable by many leading professional organizations, such as the American Medical Association and American Psychiatric Association,17 these therapeutic techniques are continuing to spread throughout the country.

The epidemic of false allegations of abuse has arisen through what psychologist and author Dr. Michael Yapko identifies as a generational proclivity towards finding someone else to blame for one's real or imagined failures in life.18  Yapko cites numerous sources in reaching his conclusion that America is becoming the "land of victims."  Yapko's research revealed that those most often "recovering" memories of abuse are in the 25-45 year old age group.  All too often, these alleged "survivors" were raised to expect that success and happiness would be provided for them.  To many, fulfillment is commonly viewed as an entitlement, rather than an uncertain reward to be obtained through dedication and a lot of hard work.  Concerned and involved parents used to respond to childhood frustrations with "it's okay, life sometimes just isn't fair."  Since the baby-boom generation began having children, and the 60s and 70s emphasis on self-esteem has become predominant, that response has frequently been replaced with "don't worry, it wasn't your fault."

Our society is suffering from an "epidemic of excuses."19  When children grow up and don't experience the happiness to which they feel entitled, they may subconsciously go looking for someone to blame.  All too often, that "someone" is the grown child's parents, and imperfect memory processes allow for reconstruction of non-existent events that fulfill the accuser's suspicion or expectation that early childhood events are to blame for the problems which surfaced later in life.  In recent years, well over 13,000 cases of false memory allegations have been reported, most often against parents or other primary care providers.20
  

The Loss of Accountability

In 1992, the San Diego County, California Grand Jury conducted a comprehensive investigation of this problem.  Their report, Child Sexual Abuse, Assault, and Molest Issues Report No. 8, clearly identifies pervasive inadequacies in the social service and judicial systems.  The Grand Jury concluded that many current methods of dealing with allegations of molestation are resulting in serious and wrongful damage to the accusers, as well as to the accused and other family members.

Following up on the blatant travesties of justice represented by cases such as Wade and Akiki, the 1993-94 San Diego Grand Jury once again investigated the abuses surrounding children's allegations of molestation and abuse.  Their most recent report, Analysis of Child Molestation Issues & Confidential District Attorney's Report, presents another scathing indictment of a social service and judicial system which continues to foster atrocities against innocent families.  The Grand Jury documents what Patrick Clancy describes as a "system out of balance."21  According to their report, numerous lives are being ruined, and families destroyed, by the actions of social workers who base their reports on inconclusive (or non-existent) investigations, biased therapists who often validate predetermination of guilt without any corroborating evidence, and vindictive parents.

In addition to being a highly visible crisis that is closely tied to our judicial system, false allegations represent a fascinating, though disturbing, social phenomenon.  The solution to this crisis will require new professional standards and practices for lawyers, therapists, and departments of social services.  The issues surrounding false allegations cut to the heart of constitutional rights, standards of review, evidentiary rules, and remedies.  The problem threatens to intrude upon the practice of law in the areas of criminal defense, child dependency, federal appeals, family law, malpractice, ethics, and personal injury.  If lawyers wait for someone else to fashion a remedy, the problem will continue to grow.

The epidemic of false allegations has come about through a bizarre interplay of justifiable social outrage, media sensationalism, unsettled judicial policies, and New Age memory-recovery therapeutic techniques.  The proliferation of in cases of this type may be motivated by the plaintiffs' pursuit of vindication for their personal inadequacies, revenge against a neglectful relative, or the desire to achieve a massive personal injury award.  The accusers who form the basis of the false allegation problem are sometimes calculating and malicious; however, even they are most often innocent victims of a psychological theory gone awry.  Sometimes, false molest allegations are based on actual incidents of molestation, with only the identity of the perpetrator or other details being wrongly inserted into the "memories" of the event.  Sometimes, the memories are a confabulation22 of the accuser's real memories, imagination, fears, suspicions, and expectations.  It is important to remember that false allegations are always devastating, regardless of the culpability of the accuser.

A practical understanding the problem of false molest allegations requires an understanding of the underlying source of the allegations.  Understanding these dynamics may be the key to finding a solution.  Many such allegations are either fabricated or enhanced, frequently through one of the burgeoning therapeutic techniques that elicit what proponents describe as "reconstructed" or "recovered memory.  There are numerous studies in the literature that deal with the widespread problems which may arise through improperly administered age-regression therapy, hypnosis, guided imagery, and the administration of alleged "memory enhancing" or "truth inducing" drugs such as Sodium Amytal.  Highly publicized false allegation cases, such as Wade, Akiki, Ramona and Bernardin,23 have focused public attention on the damage that overly zealous or unqualified "therapists" can cause.  The false recollections that can arise through these forms of therapy are referred to as "pseudo-memory" or "false memory syndrome."

Some elements in our society, supported by many therapists and survivor groups,24 seem willing to accept childhood molestation as an excuse for almost any type of anti-social behavior.  Regression therapist and author Alice Givens tells us that our behavior and feelings are governed by repressed memories, which "plac[e] most of the destructive and illegal behavior outside our control."25

Unaccountability reached frightening extremes in the Menendez, Lorena Bobbitt, and Damian Williams (Reginald Denny beating) cases.  Leslie Abramson used psychological "experts" in conjunction with a brilliant maternal presentation to establish that the Menendez murders were justified by the brothers having been molested as children.  Lorena Bobbitt argued that prior spousal abuse drove her just insane enough to justify aggravated mayhem.  And Damian Williams wasn't committing aggravated assault when he dragged Reginald Denny out of a truck and bashed his head in with a brick because, in the words of his attorney, "the mob made him do it. "26

More horrifying than the arguments themselves is the fact that the jurors in these cases were sufficiently persuaded by them to acquit Bobbitt, to result in hung juries in both Menendez cases, and to convict Williams of the lesser charge of simple assault.  Some attorneys argue that these verdicts represent the exception more than the rule.  Nonetheless, commentators have pointed out that "The doctrine of victimology — claiming victim status means you are not responsible for your actions — is beginning to warp the legal system."27  Attorney Alan Dershowitz believes that "Jurors are beginning to behave like social workers."28  This role confusion is much the same as in the investigator role imposed on social workers by the San Diego Model for child abuse investigations.  Such attempts at functional recombination among professionals tends to add confusion to what should properly be surgical precision in the investigation of child abuse allegations.

As with most controversial subjects, the proponents of the self-proclaimed neo-Freudian New Age therapies maintain a radical fringe as well.  This highly vocal radical group, comprised of both psychological professionals and unlicensed "counselors," promotes the belief that most of our problems as adults can be traced back to early sexual abuse.  Author Renee Fredrickson29 mirrors a flexible therapeutic diagnosis of "molest dynamics" by identifying some extremely common behavior as evidence of past molestation.  For example, Fredrickson tells us that "Extraordinary fear of dental visits is quite often a signal of oral sexual abuse, since it is reminiscent of being forced to open your mouth while something painful is done to it."30  Alice Givens states that most problems in life are the result of abuse which occurred during "our prenatal period and birth" and the "life that extends far into the past, even before the time of humans."31

These examples illustrate the inherent danger that lies within the often convincing radical fringes of the recovered memory therapy and survivor movements.  It is important to note, however, that many responsible professionals, mostly Freudian psychotherapists who are more moderate and scientific in their views, also rely on repressed-memory recovery techniques as part of a carefully administered therapeutic regimen.  These therapists focus their practices on what they consider to be the needs of their patients to have therapeutic assistance in recovering their long-lost memories of abuse.  The current crisis threatens to continue until improved therapeutic standards are developed and enforced which can more definitively separate the wheat from the chaff, truth from fabrication, and legitimate memories from confabulations.

In spite of the fact that some therapists have built large followings and publishing fortunes on the reconstruction of repressed memories, some highly respected main-stream professionals completely discount their validity, considering them akin to the brainwashing used in many cults.32  Several noted researchers claim that recovery of repressed memories rarely, if ever, results in memories that accurately and reliably correspond with historical facts.33

More moderate psychologists and psychotherapists believe that there is some validity to memory-recovery therapies.  However, far from offering a blanket endorsement of recovered memory therapies, these professionals are quick to point out that clinical standards and procedures need to be refined in order to avoid perpetuating what have become frighteningly common misapplications.  Fundamental to our understanding of the false memory phenomenon is what Dr. Loftus identifies as "the truly horrifying idea that our memories can be changed, inextricably altered, and that what we think we know, what we believe with all our hearts, is not necessarily the truth."34
  

The Guardians of Our Children

Most attorneys and psychologists understand how terribly difficult it can be to successfully prosecute child molesters.  The prosecution frequently has to rely solely on the uncorroborated testimony of the accuser.  This can enable defense attorneys to establish doubt in the mind of the jury as to the veracity of the allegations.  The frequent and necessary reliance of social workers, law enforcement officials, and courts on the accuser's memories makes establishing the veracity of those memories critically important.  It is society's frustration with the problems attendant to successful prosecution of actual molesters, combined with the increasing prevalence of child abuse crimes, that has contributed to the rise in legislation and prosecutorial practices which support the prosecutorial function.  Ironically, the same legislation and practices also support the prosecution of false allegations.  A balance needs to be struck between the due process rights of the falsely accused, and society's need to get child abusers off the streets.

When child dependency is at issue, child protective caseworkers have been found to contribute to the problem of false allegations.  This is particularly true when the social workers, whose job it is to be committed to the welfare of the children, are placed in the role of investigator, whose job it should be to pursue the truth.  Attorneys who deal with caseworker witnesses frequently encounter a level of well-meaning zealotry that often perverts any attempt at presenting a truthful portrait to a judge or jury.  The devastating effects of this zealotry are compounded by state legislatures which grant these social workers absolute immunity against liability for even the most reckless or malicious of behavior.  With virtually non-existent statutory controls, and inadequate training in investigative techniques, well-meaning caseworkers often begin their "investigations" by presuming that the molest allegations are true.  Both of the San Diego Grand Jury reports pointed out the shocking frequency with which caseworkers fail to conduct even an adequate basic investigation.  In many cases, the investigating social worker does not even interview the accused, and conflicting evidence is either avoided or ignored.  In both Grand Jury reports, as well as in evidence presented by ongoing lawsuits against various social services agencies, caseworkers have even been found to have ignored blatant evidence that would undermine the factual bases of the allegations, or to have intentionally excluded such evidence from their reports.  These are the "professionals" who have been assigned as guardians over the welfare of our children. It is incumbent upon us to ask, Sed Quis Custodient Ipsos Custodes (but who is to guard the guards themselves)?

New terminology has entered the lexicon of child abuse therapists and social workers, who seek to establish patterns of behavior which can be used to instantly identify and categorize alleged perpetrators.  One of the more insidious terms is "molest dynamics."  Since the term does not have a clinical definition, biased county social workers and therapists have been known to mold the definition of "molest dynamics" to support the intended outcome of particular cases.  Some therapist reports have included findings of "molest dynamics" based on such innocent behavior as "putting the child on a pedestal," "treating the child like a queen," "giving the child everything she wants," and "making the child the center of attention."  Something is seriously wrong when doting or overprotective parental behavior becomes equated with child molestation, and when an indulged child can automatically be considered a potential victim.
  

The New Legal Approach

The confrontational and adversarial nature of our court system is not well equipped to promote family preservation or reunification.  In an attempt to deal with this fundamental deficiency, juvenile and social service agencies have promulgated protocols which are designed to serve the interest of family preservation.  Nonetheless, as dependency actions with molestation components pass through the system, these protocols tend to be disregarded.  It is unfortunate for both the parties and the legal profession that, in the interest of confrontational advocacy, many attorneys have contributed to the problem by failing to realize that an adversarial victory may not be what is truly in the best interest of our clients.  Just as social service caseworkers may inadvertently pursue courses of action that damage the very children they seek to protect, so too can attorneys, in pursuing confrontation, inadvertently act contrary to the best long-term interests of their clients.

It is a rare attorney who incorporates therapeutic sensitivities into his or her practice.  Even the wisdom of doing so is open to debate, with many legal practitioners believing that the therapy should be left to the therapists, and the legal advocacy should be the sole focus of the attorney.  Nonetheless, the information presented in this article mandates that the attorneys dealing with molest allegations go beyond the legal and financial issues, and address the unique psychological and emotional needs and interests of clients and their families.

In hopes of reconciling the conflicting elements in cases of this type, several attorneys and therapists have been working cooperatively to develop new standards and procedures for dealing with the special sensitivities that are called for in the defense and mediation of molest allegations.  These committed professionals value justice and healing over potentially massive fees, and prefer reconciliation to confrontation.  The new practitioners in this area of the law maintain a broad and enlightened understanding of the social and psychological issues, in addition to the legal issues impacting on their clients.

Historically, attorneys who provide molestation defense have been reticent to advertise that aspect of their practice.  This reticence is understandable, since society tends to assume the guilt of those accused, and may view their defense as an abhorrent form of self-serving legal behavior.  Yet there is an ever-increasing need for more attorneys to defend those falsely accused, and to assist in seeking recovery from those who recklessly or criminally perpetrate false allegations.  Some attorneys have resolved the conflict between their reticence and this increased need by adopting a new legal specialty.  This specialty limits the practice to representing only those who can demonstrate with a high degree of certainty that they are, in fact, falsely accused.  Attorneys who limit their practice in this way can be reasonably certain that they are not helping to put child molesters back on the streets, and can be proud of the public service they provide.

All cases based on molest allegations involve a complex maze of factual, evidentiary, procedural, and emotional pitfalls.  Lawyers practicing in this area must learn the special rules for navigating through this maze.  Falsely accused individuals face a uniquely difficult burden in vindicating themselves.  Due to the differences in the burdens of proof, vindication is particularly difficult if the allegations take the form of civil, family, or dependency court actions.  Family and child dependency practitioners have learned that civil and family courts may inadvertently or intentionally suspend many of the due process protections that our system has historically provided to permit a fair hearing for those accused.  As discussed earlier, the quasi-criminal nature of civil molest cases can make such suspensions devastating to an innocent defendant.

For attorneys who seek to limit their practice to the defense of those falsely accused, a critical first step is ascertaining, with as high a degree of certainty as possible, whether an accusation is false.  This process should be a prerequisite to the attorney accepting representation.  Three levels of screening are currently utilized in establishing the falsity of allegations.

First, the prospective client must have an in-depth interview with the attorney, combined with a thorough forensic review of the allegations and the evidence.  When commencing the defense of a falsely accused client, or the prosecution of a case based on improperly induced memories, it is essential to lay out a precise timeline of the allegations, reflecting all possible factors that were present at the time the alleged molestation took place.  In the majority of long-delayed recovered memory allegations, there is no corroborating evidence.  The defense counsel is confronted with the need to prove a negative, which, in the absence of conflicting evidence, can be nearly impossible.

In a large number of false allegation cases, however, the allegations can be attacked through meticulous detective work in the form of forensic evidentiary review.  Working with an expert forensic psychologist early in the case is of tremendous value.  The findings of the expert may quite possibly turn out to be the testimony upon which the case ultimately turns.  In addition, a joint review of the allegations in an accurately reconstructed historical context will frequently divulge determinative factual inconsistencies or impossibilities in an accuser's or defendant's story that can form the foundation for a successful defense or prosecution.  Depending on the circumstances, a private investigator may be able to acquire additional critical evidence.

Secondly, the client must take a carefully programmed polygraph.  Just as with improperly administered memory-recovery therapy, an improperly administered polygraph can be highly unreliable.  Nonetheless, many psychological and law enforcement experts believe that polygraphs, though still not admissible in most courts, can be more than 90% accurate if properly administered and evaluated by an unbiased specialist.

Lastly, the accused must have a comprehensive psychological profile administered and evaluated by a non-biased forensic psychologist who specializes in the areas of molestation, recovered memory, and false memory syndrome.  It is absolutely critical that the professionals administering the screening be free of preconceptions as to the possible guilt or innocence of the accused, and have no vested interest or desired result in performing the evaluations.  Penile plethysmographs may be used in certain cases, although the utility and reliability of this test are severely limited.  Only after the accused has "passed" all three screening levels would he or she be considered "falsely accused."

The necessity of requiring all three phases of the screening process is founded in the belief by many professionals that the pathology which might enable a guilty perpetrator to "beat" a polygraph would generally show up through a comprehensive series of psychological profiles.  In the same sense, the pathologies which are often missed in the profiling can often be disclosed by a properly administered polygraph.  This conservative screening process is more likely to result in the refusal of an attorney to take the case of an innocent client than accepting representation of a child molester.  Although it is unfortunate for the honestly innocent accused who may have failed the screening process, such an approach is necessary to provide the ethical attorney with adequate assurance that he or she is not helping to defend a child abuser.

There is impassioned debate among psychologists, attorneys, and law enforcement officials as to the level of certainty that can be achieved through this screening process.  Regardless of the precision of the screening process, simply requiring that prospective clients submit to the process can be tremendously useful.  After the attorney explains to the accused how reliable the screening process is, it is unlikely that the accused will submit to it (and pay for it) unless he or she is truly innocent.  Even though largely inadmissible in court, determination of the falsity of the accusations can be a crucial first step in minimizing the damage to the individual's reputation, in paving the way for reunification with the accuser, in earning the attorney's commitment to the client's cause, and in preparing a successful case.

Another expert that should be brought into the case fairly early is a memory expert.  Well balanced experts, with empirical credibility and a strong courtroom presence, are particularly important in cases of this type.  These experts are necessary to educate the jury as to the fundamental potential for unreliability of recovered memories, and the distortions that can be imparted to the memory process through various therapeutic and interviewing techniques.  Impeccable scientific credentials and an uncompromising dedication to accuracy is vital in establishing a foundation for the witness's testimony.  The problem that may be confronted, however, concerns the nature of the "experts" that might be admitted in opposition.  The relatively new field of memory research does not have well established standards for laying an expert's foundation, and an attorney may confront an opposing "expert" who vehemently supports the veracity of the New Age therapeutic techniques.  There are a host of memory experts" who are willing to adamantly and convincingly present testimony concerning the validity and accuracy of recovered memories.

"Fringe experts" can be very persuasive to a judge or jury, whereas well-reasoned, scientifically based experts may appear to be qualified or uncertain in their presentation.  Careful preparation for exclusion or impeachment of "fringe experts" for lack of scientific foundation can be a critical part of success in recovered memory-based cases.  Managing the "battle of the memory experts" is one of the most important reasons for the attorney to maintain an understanding of the true state of the research involving memory retention and recovery, interviewing techniques, and forensic evidentiary review.

Also critical in molest cases is the often blurred distinction between "suggestions" of abuse in a therapy session and a therapist's "assistance" in recovering repressed memories.  For purposes of deposing and examining therapists, identifying the sometimes elusive distinction between these two closely related therapeutic activities can be of vital importance.  Just as patients honestly believe that their recovered memories are real, well-meaning therapists who induce the memories honestly believe that they are simply facilitating the patient's own recovery of repressed memories of childhood abuse.  These therapists may fail to understand the powerful effect that a patient's suspicions, fears, expectations, religious training, or unrelated life experiences can have on the quality and accuracy of a memory that is reconstructed through facilitated therapy.  The attorney and his or her team must be absolutely meticulous in examining the therapists, all pre-therapeutic communications with the patient, and the therapeutic records themselves, always being alert to any comment or cognitive input that might have implanted an expectation that prior abuse was the underlying cause of the patient's presenting pathology.

The attorney and/or investigator must also be meticulous in identifying and evaluating an accuser's exposure to friends, family members, therapists, religious or social organizations, publications, or television shows which might validate childhood abuse as a hidden source of adult problems.  The religious background of the client can also be critically important, particularly in cases of alleged Satanic Ritual Abuse.

When a private investigator is called for, one should be selected who is familiar with the unique focus required by repressed memory cases, and other cases involving on molest allegations.  Ideally, a defense investigator will be able to construct an honest reality that factually conflicts with the memories reported by the accuser.  At a minimum, the investigation should be able to disclose a history which provides an alternative explanation for construction of the memories upon which the allegations are based.  In the same sense, a plaintiff's investigator may be able to provide valuable factual evidence in support of the allegations.  Combining the investigative findings with a forensic evaluation of all available evidence should provide a strong foundation leading to a successful and just result, for either a plaintiff or defendant.
  

Conclusion

Many legal and psychological professionals believe that the recovery of repressed memories represents the social and mental health crisis of the decade.35  It may also be one of the most significant and complex legal crises.  Courts and social service agencies throughout the country are wrestling with the challenges and problems arising through recovered memory therapy, as are legislatures, therapists, professional organizations, and law enforcement agencies.  The uncertainty which surrounds repressed memory cases represents a tremendous challenge and opportunity for attorneys who are willing to expend the effort in an attempt to truly understand the conflicting interests, opinions and issues involved.

Former Soviet Premier Nikita Khrushchev said that the USSR didn't need to worry about defeating America because America would destroy itself from within.  The prevalence of actual molestation, as well as adults and children making false accusations of abuse, threatens to undermine the already shaky foundation of the American family.  Sociologists tell us that the historical deterioration of the American family is being fed by an unraveling of that portion of our society's moral fabric which mandates preservation of, and reliance on, the traditional family unit.  The dual crises of child molestation and false allegations constitute yet another attack on the family institution.  How many more attacks can such an essential foundation of American society endure before it becomes irreparably shattered?

Attorneys can and should play an active role in helping to prevent the continued escalation of this terrible problem.  The public concept of the legal profession has been tarnished as a result of the public's lack of understanding of the lawyers' advocacy role.  There is no question that the lawyers' primary duty is to aggressively advocate their clients' interests.  What we need to realize, however, is that advocating a client's cause and advocating justice do not have to be mutually exclusive.

As officers of the court, lawyers are among the custodians of our judicial system.  In addition to client advocacy, family lawyers should advocate justice for families. Tort lawyers should advocate justice in the rules governing introduction of evidence and standards for damage awards.  All attorneys should advocate the preservation of due process, and a fair and efficient system of justice for all citizens.  This admonition about professional accountability challenges legal practitioners to reestablish the historical nobility of the profession by setting an example for society.  Lawyers need to become proactive in rectifying the flaws in our legislative and judicial systems that stand in the way of fairness and efficiency in protecting the innocent and punishing the guilty.  We must always remember that "evil triumphs when good people do nothing."
  

Endnotes

1 The McMartin Preschool case became the longest and most costly court battle in California history.  It also represents the first major California case involving a large number of defendants accused of acting in concert to perpetrate a vast and diverse number of sexual and satanic abuses against the children in their care.  The trial disclosed manipulation of most of the child witnesses by overly zealous therapists and parents, as well as induced memories of improbable or impossible events.  Prior to their acquittal, Defendants Peggy and Raymond Buckey spent two and five years, respectively, in prison.
2 Holly Ramona sued her father Gary for having molested her as a child.  The suit was based on memories of abuse that Holly recovered during sodium Amytal and hypnosis treatment for an eating disorder, as well as other psychological disorders.  Prior to Holly's suit being tried, Gary Ramona sued Holly's therapists for having negligently implanted false memories of abuse.  This was the first case in which a third party foreseeable plaintiff was permitted to sue a therapist for injuries sustained by a parent which resulted from therapy administered to the plaintiff's child.  A Napa County jury held in favor of Gary Ramona, awarding him $500,000 in damages.
3 Professor Loftus has been a research psychologist specializing in memory retention and recovery for nearly two decades.  Having established her expertise prior to memory issues becoming the focal point of so much litigation, her unbiased and scientifically-based presentations have made her one of the nation's leading expert witnesses in recovered memory-based cases.  Because the research shows that recovered memories are often unreliable, Professor Loftus generally testifies for the defense.  For this reason, some of the more radical survivor groups have labeled her with such disparaging characterizations as "mercenary," "whore," and "molester sympathizer."
4 Elizabeth Loftus & Katherine Ketcham, Witness for the Defense (Hardcover)(Paperback) 141 (1991).
5 Akiki, a child care worker in San Diego, spent two and a half years in prison as a result of therapeutically induced allegations of abuse, and reckless behavior on the part of child protective workers (as well as malicious behavior by the accusing children's parents).  Before his acquittal, the jury listened to preposterous tales of satanic ritual abuse of both children and animals, including the sacrifice of elephants and giraffes.  The law enforcement and social services abuses surrounding the Akiki case formed the basis for the 1994 San Diego Grand Jury investigation and report.  See infra note 8.
6 James W. v. Superior Court, 17 Cal. App. 4th 246 (4th Dist. 1993).  Reflecting one of the most tragic and appalling examples of therapist and caseworker bias, this San Diego case illustrated one key aspect of the molest allegation problem, raising the argument that "the courts have moved beyond the Child Abuse and Neglect Reporting Act, Penal Code section 11164 et seq., to come full circle so those who abuse children in the name of preventing abuse are immunized by the very law that was meant to protect children." Id. at 252.  In reversing the defendants' demurrer based on absolute immunity, the appellate decision paved the way for the adjudication of critical substantive issues of child protective abuses and immunities,  Unfortunately for procedural reform, the case settled in the Spring of 1994.

The Wade settlement represents one of the major problems of achieving appellate precedents in cases of this type.  The process of attempting to prosecute a civil action based on false allegations, or against a governmental agency, can be a devastatingly painful, costly, and time consuming process.  Few plaintiffs have the financial or emotional resources to sustain such an action, particularly when confronted by opponents who seem to have unlimited resources,

7 Michael Robin, Assessing Child Maltreatment Reports: The Problems of False Allegations 2 (Hardcover)(Paperback) (1991).
8 San Diego County Grand Jury, Analysis of Child Molestation Issues & Confidential District Attorney's Report (1994) [report of investigation into San Diego County's Department of Social Services and District Attorney's handling of cases of alleged molestation, including the Dale Akiki case].
9 Typical of such statutes is California's PENAL CODE 11172 et seq.
10 San Diego Grand Jury, supra note 8.  Many social services agencies have adopted what has become known as the "San Diego Model" of child abuse investigations, whereby social services caseworkers are the individuals assigned to conduct such investigations, frequently in lieu of bona fide police investigations.  See Jason Fine, Seeking Evil: The hell of prosecuting satanic ritual abuse, California Lawyer July 1994, at 50.  Numerous Grand Jury reports have determined that the limited investigative training provided to social service caseworkers is not adequate to ensure just results in such investigations.
11 This statute is commonly referred to as the "Civil Rights" or "Color of Authority" statute, and is implicated whenever a government agency, representative, or other individual acting in concert with, or under the authority of, a governmental agency deprives a plaintiff of one or more of their civil rights.
12 The False Claims Act is commonly referred to as the "Whistleblower" statute, and provides that plaintiffs may sue government or non-government organizations on behalf of the federal government for misapplication of federal funds.  Numerous Departments of Social Services have been sued under this act for wrongfully or fraudulently failing to comply with federal guidelines for implementation and administration of child protective programs.
13 Even in cases which arise through fraudulent allegations, subsequent therapy and reinforcement of the allegations has been found in some cases to actually establish the lie as an honest memory in the mind of the accuser.  When this occurs, the methods for dealing with allegations may have to switch mid-stream to the methods for dealing with allegations of the third type.
14 The clinical distinctions between a "repressed" memory and a "forgotten" memory go beyond the scope of this article.  However, the distinction can be significant from an evidentiary standpoint.  "Repressed memories" are those that are relegated to a consciously inaccessible region of the mind immediately upon the occurrence of a traumatic event.  The repression occurs as a defense against permanent psychological damage being caused by the traumatic event.  A "forgotten memory" is simply one that has faded from conscious recall over a period of time.  Many forms of child abuse are not traumatic to the victim, and are therefore more subject to forgetting than to repression.  Memories that have been forgotten may be easier to validate, since the memories had been retained for some period of time after the event, and may have been shared or recorded.
15 This term became popularized in 1993 when attorney Leslie Abramson managed to convince a handful of Los Angeles jurors that childhood abuse justified Erik Menendez' brutal, premeditated slaying of both his parents.  It should probably come as no surprise that Ms. Abramson was also the defense attorney who won the highly publicized 1989 acquittal of Dr. Khalid Parwe, the Hacienda Heights gynecologist accused of strangling and dismembering his 11-year-old son.
16 The term "contamination" is frequently used by therapists. agencies. and courts to refer to the manipulation of a witness's attitudes. memories, or beliefs through repetition and reinforcement.  Contamination is most commonly used by custodial parents, therapists, or caseworkers to induce or modify the testimony of a child against a non-custodial parent.  In custody or divorce conflicts, parents may use contamination to further their own agenda, frequently at the expense of the child's and non-custodial parent's relationship.  See, e.g. In re: Daniel Z., 10 Cal. App. 4th 1009,1020 (1992); People v. Rios, 9 Cal. App. 4th 692, 700 (1992); In re: Marriage of Seaman, I Cal. App. 4th 1489, 1492 (1991).
17 See, e.g. Report of the American Medical Association, CSA Report 5-A-94, Report of the Council on Scientific Affairs.  This report officially followed the lead of the American Psychiatric Association in concluding that the therapeutic processes that attempt recovery of repressed memories are subject to significant unreliability.  The AMA recommended caution in the use of, or reliance upon. these forms of therapy.
18 Michael Yapko, Suggestions of Abuse (Hardcover) (1994).
19 Bernard Goldberg, CBS Eye to Eye: "Don't Blame Me," May 26, 1994.
20 Pamela Freyd, Introductory Letter, FMS Foundation Newsletter, May 3, 1994, at 1.  Depending on the source, the number of reported false allegations ranges from 13,000 to 50,000.  Unfortunately. the lack of social sympathy for those accused of molestation, combined with a paucity of appellate decisions concerning cases of molest allegations, means there is insufficient reliable statistical data on the actual number or veracity of both true and false molest allegations.  It is uncontroverted in most professional circles, however, that sufficient numbers of both true and false molest allegations are being levied to justify making this issue a judicial and legislative priority.
21 Patrick Clancy is a Walnut Creek, California attorney specializing in child abuse cases.  He and his partners produced a video tape entitled "A System Out of Balance," which was intended to give prospective clients an overview of the terrible emotional and financial burdens that are involved in litigating a case of alleged child abuse, either as a defendant or as a plaintiff.
22 "Confabulations" has been popularized as the term describing the process of reconstructing memories of events that never occurred, or that have been distorted through the memory recovery process.
23 Cardinal Bernardin was accused of having molested Steven Cook decades earlier.  Prior to the case going to trial, the accuser recanted his memories of having been abused by the Cardinal.  Many accusers have subsequently recanted their "memories," giving rise to an entire new wave of malpractice litigation against the therapists responsible for allegedly implanting or inducing memories of events that never took place.  For case histories, see Eleanor Goldstein & Kevin Farmer, True Stories of False Memories (Paperback) (1993).
24 The book most commonly referred to patients by therapists is The Courage to Heal (Paperback)(Audio Cassette), by Ellen Bass and Laura Davis.  This book, and many others like it, have adopted the extreme view that any suspicion of abuse (regardless of the circumstances under which such suspicions arise) should be treated as constituting valid proof that abuse occurred.  These books frequently include catch-all checklists of "symptoms" of abuse.  Not surprisingly, few individuals fail to meet the test for what the authors identify as the tell-tale signs of abuse.
25 Alice Givens, The Process of Healing (Paperback) at 16 (1991).
26 Interview with Edi Faal, attorney for Damian Williams (May 26, 1994), (Eye to Eye: CBS Television broadcast).
27 John Leo, Watching 'As the Jury Turns," U.S. News & World Report. Feb.14, 1994, at 17.
28 28 Id.
29 Renee Fredrickson, Repressed Memories: A Journey to Recovery From Sexual Abuse (Paperback) (1992).
30 Id. at 43.
31 Alice Givens, see supra note 25 at 7.
32 Richard Ofshe, a social psychologist and researcher at U.C. Berkeley, is one of the outspoken critics of recovered memory therapies.
33 Psychiatrist John Hochman has written and lectured widely on the abuses that are being perpetrated under the penumbra of the "recovery" movement.
34 Elizabeth Loftus, see supra note 4 at 13.
35 This position was repeatedly stated by numerous legal and psychological professionals during a seminar on repressed memories presented jointly by The University of San Diego School of Law and Mesa Vista Hospital on April 23,1994.

 

* Philip S. Simmons is an attorney specializing in recovered memory and memory-biased cases at Simmons, Ritchie & Segal, 555 South Flower Street, Suite 4640, Los Angeles, CA 90071-2205.  [Back]

 

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