Unearthed memories lose ground in court

0 Comments | Insight on the News, June 12, 1995 | by Chi Chi Sileo

If the courtroom is the symbolic O.K. Corral of the American consciousness, then it's only fitting that it should be the scene of the final showdown over "repressed memory therapy," or RMT - the controversial psychotherapeutic technique that has ripped apart families and therapists in a vitriolic war of words.

Since 1989, believers in RMT have ruled the courts. About 900 cases have gone, to trial on the basis of recovered memories of sexual abuse (many more have been settled out of court), often with those memories as the only evidence. But the last few months have witnessed a dramatic change: RMT is losing its status, as recent decisions at the highest state levels show.

"It is losing credibility very, very rapidly," notes Pamela Freyd, executive director of the False Memory Syndrome Foundation, founded in 1992. "Added to this are the increasing numbers of retractors [adults who recant their accusations] we're seeing lately. We feel very hopeful that things are finally starting to reach a balance."

The first conviction based upon repressed-memory evidence came in the 1989 trial of George Franklin, whose daughter Eileen claimed she had uncovered a long-buried memory that her father had murdered her childhood friend, Susan Nason. The case riveted national attention on this new phenomenon; the jury, relying solely on Eileen's emotional testimony, sentenced George Franklin to life imprisonment. RMT also links up with the more sensational day-care trials including the McMartin Preschool case, since these involve false memories that critics say have been "implanted" in children by overzealous professionals - therapists, social workers and law-enforcement personnel.

In April, however, RMT's legal ground shook when a state court in Washington overturned the Franklin conviction. Within a week, a North Carolina court of appeals followed suit by reversing the convictions of two people sentenced in the Little Rascals trial, a case involving allegations of ritual abuse - including spaceship flights and baby killings - by nine staffers at the day-care center. (Two others plead guilty to lesser charges and the rest are still awaiting trial.) Earlier, the New Jersey Court of Appeals overturned the conviction of former day-care worker Kelly Michaels, who spent five years in jail; children had alleged she made them eat feces and tortured them with knives and spoons.

"State courts are waking up all over," notes Thomas Pavlinic, an Annapolis, Md., attorney who represents family members accused of abuse based upon RMT. As Insight goes to print, a New Hampshire circuit court judge is determining whether repressed memory is admissible in two cases of abuse in which it is the only form of evidence; if he deems RMT to be unreliable, both cases will be thrown out.

"There's no way he can't throw them out, not if he is basing his decision at all scientifically," says Mark Pendergrast, author of Victims of Memory: Incest Accusations and Shattered Lives, who attended the pretrial hearings. Pendergrast tells Insight that press coverage of the hearings was sketchy. For instance, one of the plaintiffs is suing her eighth-grade teacher, claiming he impregnated her and took her for an abortion when she was 12 years old. But she testified during cross-examination that she began menstruating at the age of 14 which, if true, would render her claim physiologically impossible. All kinds of news crews were there," Pendergrast recalls. "CBS, ABC, everyone. I expected to see that all over the next day's news. But they never reported that - or any other inconsistencies in the plaintiffs' testimonies."

Dry facts have a hard time competing with the lurid details and sweeping emotions of recovered-memory testimony, but they're regaining favor. During the last few months, the Alabana Supreme Court has allowed a patient to sue a former therapist for implanting false memories of abuse and federal district courts in Oklahoma and Texas have ruled that therapists are obliged to corroborate their patients' accusations. A Baltimore judge threw out a case against a priest on grounds that repressed memory is not scientifically valid. In Louisiana, the state Supreme Court ruled that expert testimony about repressed memory was inadmissible.

Such skepticism is spreading. The National Center on Child Abuse and Neglect completed a special investigation last month that surveyed allegations of satanic-ritual abuse, or SRA and found no substantiation. PBS' Frontline recently aired a skeptical documentary, Divided Memories, and Hollywood director Oliver Stone has just released a film about the McMartin Preschool case. "Things are coming fast and furious," says Pendergrast. "Everything is happening at once."

But is the repressed-memory craze really reaching its epilogue? Jury decisions still reflect belief in RMT: 70-year-old Violet Amirault and her daughter, owners of a day-care center in Boston, recently were found guilty of abuse and imprisoned. And "satanic panic" - the belief in SRA - slowly debunked in the United States, is flourishing in Canada. Professional mental-health, organizations continue to rally behind RMT practitioners.