Over the past few years, the "false
memory" movement has manifested primarily as a media presence that
discounts sexual abuse survivors as first-hand witnesses to their own
experiences. Its message of disbelief has compromised the healing process
of many and placed more children at risk by helping perpetrators escape
accountability.
The Truth and Responsibility in Mental Health Practices
Act (TRMP Act) represents a new watermark in the false memory movement as
its most concrete and potentially far-reaching expression to date. This article
considers the implications of the TRMP Act and, in the process, analyzes
the false memory position on which it is predicated. As a direct outgrowth
of the false memory movement, this legislation can provide some important
lessons about the movement and its goals.
IN RESPONSE TO an alleged epidemic
of "dangerous" and "experimental" psychotherapies that are based on
"unsubstantiated pseudoscientific myths," the newly formed National Association
for Consumer Protection in Mental Health Practices (NACPMHP) drafted model
legislation to end "widespread and fraudulent practices" in the mental health
field.[1] In January of this year [1995], initiative
supporters began a nationwide campaign to enact a revised version of their
bill known as "The Truth and Responsibility in Mental Health Practices Act"[2]
(TRMP Act). Thus far, the TRMP Act has been introduced under various names
in New Hampshire,[3] Illinois, [4] and Missouri.[5]
With a stated purpose of consumer protection — primarily against so-called
"false memory syndrome"[6] — the TRMP Act proposes radical changes in
mental health practice, including a rigorous and unwieldy informed consent
procedure warning of the "risks and hazards" of treatment, and license suspension
or revocation for therapists who do not comply with the new mandates. As
his moral substrate, TRMP Act author Christopher Barden, Ph.D., J.D., invokes
the Nuremberg Code — along with the implication that therapists subject
the public to atrocities on a par with Nazi war crimes.[7]
A Catch-22 for Therapists
At the core of the proposed reforms is a redefinition of "science" for the
field of clinical psychology. This redefinition is achieved by borrowing
criteria unique to research in the physical sciences and applying
them to behavioral science and clinical practice. With this change,
the TRMP Act erects a Catch-22 for therapists: they would be required to
provide a body of professional literature that establishes the scientific
validity of their clinical practices; however, under the TRMP Act's standard
of scientific validity, such literature would be largely nonexistent.
Issues in Treatment Validity Research
The informed consent form required by this bill must include journal citations
of "treatment outcome research comparing the proposed treatment to alternative
treatments and control subjects receiving no treatment."[8] The Appendix
to the TRMP Act explains further:
Not only can such research be done, it is not particularly
difficult. To offer a simple example, one gives Treatment X to one randomly
chosen group, Treatment Y to another, Treatment Z to another and assigns
the final group to a no-treatment waiting list. Reliable tests of symptoms
and other goals of treatment are taken before and after treatment. What could
be simpler?[9]
This research design is not simple, though, because it does not account
for some basic clinical realities. For example, it assumes that diagnosis
and psychotherapy are always separate processes, which is not the case. It
also assumes, erroneously, that the goals of treatment are fixed at the beginning
of treatment and do not change during the course of the therapeutic process.[10]
Selection of Study Subjects Evaluation of treatment
efficacy using the above criteria would require that treatment outcome reflect
the treatment alone and not some factor(s) unique to the client, the therapist,
or the client-therapist relationship. Thus, at the very least, subjects
participating in a study of this design would have to be very similar in
clinically important ways. Treatment that is relevant to sexual abuse cannot
be studied in this manner because it would be virtually impossible to locate
subjects who are well-matched in terms of specific trauma history,
symptomatology, and many other complex variables.
Control (No Treatment) Group In addition to matching
other study subjects on clinically important variables, control subjects,
by definition, would have to remain treatment-free for the duration of the
study period, which could last for many years. Furthermore, this abstinance
could not be imposed or encouraged by researchers because no such injunction
would be ethical. Thus, the likelihood of finding volunteers who could fulfill
these criteria is at least as small as the chances of enlisting suitable
volunteers for treatment.
These issues alone make research fitting the above description impossible
and, hence, undocumentable. Under the TRMP Act, then, therapists who treat
survivors of childhood sexual abuse would almost certainly violate the bill's
mandate to show that their "proposed treatment has been proven reasonably
safe and effective."[11]
In many cases, the literature required to substantiate the "scientific" basis
of treatment would be nonexistent, yet therapists would be denied insurance
reimbursement without it. Even if clients could afford to pay out of their
own pockets, therapists would still commit fraud under this bill if they
begin therapy without first giving clients this same documentation of treatment
validity. These provisions would effectively outlaw a substantial portion
of mainstream psychotherapy—including that relevant to childhood sexual
abuse.
People who might benefit from what little else remains as "legal" treatment
would face a formidable and intimidating informed consent process. (The original
version of the TRMP Act would have required all informed consent sessions
to be audio- or videotaped.[12] Although none of the current versions of
this bill contains this provision, it is not yet clear whether the early
plan to include this requirement has been abandoned.) The preparation and
long-term storage of informed consent records would present therapists with
an additional operating expense, and the discharge of the more detailed paperwork
to the insurance company would contribute to the loss of patient-therapist
confidentiality.
Proposed Changes in Confidentiality: A Way Toward Third-Party Lawsuits
In addition to this broad frontal attack on psychotherapy, the TRMP Act has
other provisions that would serve collateral objectives of the "false memory"
movement. One of these objectives is the ability to bring third-party lawsuits
against therapists.
Third-party lawsuits were clearly planned in the TRMP Act's predecessor as
one of its chief goals: [13]
The Mental Health Consumer Protection Act would specifically
permit lawsuits by third parties injured by negligent therapy. . . . All
"reasonably foreseeable victims of the willful and/or reckless use of hazardous
therapy techniques or procedures" (e.g., families of patients subjected to
"recovered memory" therapy) shall have a cause of action for legal redress
through malpractice suits. Third party suits will be screened by a three
person panel composed of a citizen, lawyer and licensed therapists to insure
against frivolous suits. One affirmative vote from among the three is needed
to proceed to sue. [14]
The TRMP Act itself, however, is much less obvious in the way it could facilitate
such lawsuits. The confidentiality clause in the bill's boilerplate informed
consent form would play a key role:
Your mental health care provider has a duty to share
otherwise confidential information in the following situations: 1 –
If the provider has reason to believe you are a victim or perpetrator of child abuse [author's
emphasis], 2 – the situation is life threatening,
that is if the provider believes there is a serious threat of imminent, serious
harm to you or others, 3 – a court or duly authorized agent of the state
has ordered your records released. [15]
The above text appears to be consistent with existing mandatory reporting
laws, but it is not. Mandatory reporting laws for child abuse do not apply to adult therapy clients who report past abuse. As written, the
TRMP Act would deny this one group of clients the fundamental and longstanding
principle of doctor-patient confidentiality. Therapists would actually have
a duty to share confidential information about any adult they suspected
of having had an abusive childhood.
At present, therapists have no duty to persons with whom they have had no
professional contact. The language of the TRMP Act's confidentiality clause
would provide a basis for arguing that the state legislature enacting this
bill recognized therapists' "duty" to their clients' families in cases that
involve child abuse allegations. If this argument succeeded, incestuous parents
who objected to their children talking about their abuse histories in therapy
could sue therapists for damages by alleging professional negligence and
claiming to have suffered as a result. "Evidence" of negligence could be
found in the therapy records, which, as explained earlier, would likely reveal
that therapists had not planned to use "safe and effective" treatment methods.
Accessing a client's therapy records would not only facilitate a distracting
lawsuit against the therapist, but would likely result in termination of
the client's therapy. An anticipated scenario would involve a father who
had been privately accused of sexual abuse by his now-adult daughter. The
father could request his daughter's therapy records, and her therapist would
have a legally imposed duty to provide them. The loss of privacy that would
accompany this access would devastate the therapeutic relationship and,
consequently, the healing process. It would also open the door to disciplinary
action against the therapist by his or her licensing board.
Further Proposals: Fundamental Changes in Legal Proceedings
The TRMP Act would also undermine victims' ability to sue accused perpetrators,
and it would do so in ways that might not be immediately apparent.
The Road to Eliminating Litigation Privilege
Another provision of the TRMP Act would change a fundamental aspect of legal
proceedings. Under current law, any expert asked to consult on a legal action
is protected by the "litigation privilege" and cannot be sued for the opinions
and testimony he or she gives. This privilege applies to all witnesses and
parties in a legal proceeding. The TRMP Act would redefine mental health
expert witness consultations and testimony as a "psychological service,"[16]
which is a term of legal significance. This change would lay the foundation
to argue that mental health expert witnesses are no longer protected by the
litigation privilege and may therefore be sued for their opinions. This
vulnerability would greatly discourage consultation and testimony by mental
health experts, which are usually needed in actions involving allegations
of childhood sexual abuse.
Extra Requirements for Mental Health Experts
In addition to deterring expert witness testimony, the TRMP Act would require
that mental health experts and treating therapists submit published literature
establishing the scientific validity of the "method or procedure" they used
to arrive at their opinions. As explained earlier, it is not possible to
scientifically test and validate the bulk of mainstream clinical
treatment—including clinical forensic evaluations—in the manner
described in the TRMP Act. Thus, this provision would effectively eliminate
all clinically based expert testimony in cases of alleged sexual abuse.
Placing a Presumption of Wrongdoing on Therapists
Any one of the aforementioned provisions would serve as an obstacle to the
identification and adjudication of sex offenders. However, an amendment to
the TRMP Act in New Hampshire would go even further. If an accused sex offender
were to be convicted in that state and delayed memories of abuse were part
of the evidence in the case, this amendment would require the accuser's therapist
to be subjected to review by his or her licensing board.[17] From a legal
standpoint, this amendment would place a presumption of wrongdoing on therapists
that could cause them to lose their licenses without due process. For that
reason, a court would likely find this amendment unconstitutional. Its apparent
intention, though, is to further discourage therapists from working with
survivors of childhood sexual abuse. It is also a strong indication that
the TRMP Act is not concerned with mental health services per se but
with therapy that is relevant to childhood sexual abuse.
The very existence of the TRMP Act and the severity of its measures suggest
that standards of care for protecting consumers are not only inadequate but
completely lacking in the area of mental health. However, in New Hampshire
and most other states,
The law provides for public representation on the Board
of Examiners, standards for certification (education, character, supervised
experience, examination), continuing education requirements, consultation
with physicians when necessary, ethical standards, privileged communications
with between client and therapist, prohibition of sexual misconduct, a consumer
complaint process, investigation of alleged misconduct, and disciplinary
proceedings. [18]
If the situation alleged by the National Association of Consumer Protection
in Mental Health Practices (NACPMHP) is as grave as it claims, why has Herman
Ohme, national co-chairman of the NACPMHP, instructed campaigners to "keep
[the bill] as quiet as possible"?[19] Any such circumstance involving the
public welfare is best studied openly, so why has he cautioned against publicity?
The answers to these questions are found in a pattern that becomes clear
when the origins of the TRMP Act are carefully examined.
Who is behind the TRMP Act?
The TRMP Act emerged from the efforts of organizations closely allied with
the Philadelphia-based False Memory Syndrome Foundation (FMSF)—an advocacy
group for people who claim to have been falsely accused of sexual child abuse
as a result of "false memory syndrome" (FMS).
The distinction between the FMSF and the TRMP Act's parent organization,
the NACPMHP, is somewhat blurred. Three members of the FMSF's scientific
advisory board also sit on the scientific advisory board of the NACPMHP.
Robert M. Koscielny, formerly of the FMSF's Legal Task Force Clearinghouse,
is a state chair for the NACPMHP in Ohio, and numerous other state chairs
for the NACPMHP are also contact people for state meetings of the FMSF. The
NACPMHP shares the address of the Illinois FMS Society.
What is "false memory syndrome" and where does it come from?
FMSF scientific advisory board member John Kihlstrom, Ph.D., has suggested that FMS is
a condition in which a person's identity and interpersonal
relationships are centered around a memory of traumatic experience which
is objectively false but in which the person strongly believes. Note that
the syndrome is not characterized by false memories as such. We all have
memories that are inaccurate. Rather, the syndrome may be diagnosed when
the memory is so deeply ingrained that it orients the individual's entire
personality and lifestyle, in turn disrupting all sorts of other adaptive
behavior. The analogy to personality disorder is intentional. False Memory
Syndrome is especially destructive because the person assiduously avoids
confrontation with any evidence that might challenge the memory. Thus it
takes on a life of its own, encapsulated and resistant to correction. The
person may become so focused on memory that he or she may be effectively
distracted from coping with the real problems in his or her life. [20]
The problem with this definition is that it has no true clinical meaning.
A "deeply ingrained" memory that "orients the individual's entire personality
and lifestyle . . ." is not a diagnostic criterion but a conclusion about
the veracity of contested memories that is based on unspecified criteria.
More importantly, sufferers of "FMS" are virtually indistinguishable from
clients with posttraumatic stress disorder (Table 1)—a condition prevalent
among victims of childhood sexual abuse. Although FMS proponents may argue
that therapy itself causes posttraumatic stress disorder, there is no evidence
to support such a claim.
There are no tests to measure FMS, and there is no way to determine if someone
has it. Because it cannot be identified, it cannot be scientifically
investigated, which is why no studies or case reports of it have been published
in the peer-reviewed professional literature.[21]
FMS purportedly arises from "recovered memory therapy," a theoretical practice
said to be capable of creating memories of childhood sexual abuse in
psychotherapy patients. The "diagnosis" of FMS was introduced in 1992 by
Pamela Freyd, Ph.D. (an educator) and her husband Peter Freyd, Ph.D. (a
mathematician). The Freyds conceived the idea of FMS not after years of dedicated
study and research in psychology, but, rather, soon after their daughter
(Jennifer Freyd, Ph.D.) privately confronted them with memories of incest
perpetrated by her father. (Ironically, Jennifer is a respected research
psychologist specializing in memory and perception.) In 1993, the Freyds,
who are co-founders of the FMSF, filed a complaint against Jennifer's former
therapist, but the Oregon State Board of Psychologist Examiners dismissed
the case "in its entirety."
FMS is not recognized by experts in sexual abuse trauma. It does not appear
in the American Psychiatric Association's official compendium of mental disorders
and is not being considered for inclusion in that manual.
TABLE 1. Comparison of Posttraumatic Stress Disorder
with "False Memory Syndrome"
DSM-IV Criteria for Posttraumatic Stress Disorder* |
Features of "Accusing Adults" as described by the FMSF** |
| "The . . . associated constellation of symptoms may occur and are more
commonly seen in association with an interpersonal stressor . . ." |
"In virtually every situation of which the Foundation is aware, the accusing
adult was facing emotional and psychological distress. Often, there was a
precipitating event such as a job loss or change, divorce, eating disorder,
relationship problem, or birth or death in the family" |
| "Persistent avoidance of stimuli associated with the trauma and numbing
of general responsiveness (not present before the trauma), as indicated by
three or more of the following: (1) efforts to avoid thoughts, feelings,
or conversations associated with the trauma; (2) efforts to avoid activities,
places, or people that arouse recollections of the trauma; . . . (5) feeling
of detachment or estrangement from others . . ." |
"assuming a new identity and refusing to have contact with anyone who
did not share the beliefs of abuse" |
| "The following associated constellation of symptoms may occur . . . a
change from the individual's previous personality characteristics." |
"radically changed behavior" |
| "The following associated constellation of symptoms may occur . . . a
loss of previously sustained beliefs." |
"redefining personal history" |
| "The traumatic event is persistently reexperienced in one (or more) of
the following ways: (1) recurrent and intrusive distressing recollections
of the event, including images, thoughts, or perceptions . . . (2) recurrent
distressing dreams of the event . . . (3) acting or feeling as if the traumatic
event were recurring . . . (4) intense psychological distress at exposure
to internal or external cues that symbolize or resemble an aspect of the
traumatic event; (5) physiological reactivity on exposure to internal or
external cues that symbolize or resemble an aspect of the traumatic event." |
"claiming a new malady of repressed memory syndrome" |
* American Psychiatric Association (1994). Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition. Washington, D.C.: APA, pp 424-9.
Posttraumatic stress disorder may be acute (the symptoms last for less than
3 months), chronic (the symptoms last for 3 months or longer), or have a
delayed onset (the symptoms appear 6 months or more after the traumatic
event).
** False Memory Syndrome Foundation (1995). "Frequently Asked Questions."
Sept.
Information and misinformation in the recovered memory
controversy
Recovered Memory Therapy: Hazardous Threat or a Straw Man?
"Recovered memory therapy" (RMT) is another scientific-sounding term that
originated alongside FMS and has been given the following definition:
"Recovered memory therapy" is a term covering a wide variety
of therapeutic techniques which assume that the patient's current symptoms
are caused by traumatic events which have been lost to conscious recollection;
these therapies further assume that restoration of conscious recollection
(or at least acknowledgment that the trauma occurred) is essential to the
successful treatment of the patient's symptoms. [22]
This definition also does not appear anywhere in the scientific literature
and does not refer to any process recognized by the mental health professions.
Again, it originates with John Kihlstrom, who goes on to say that RMT is
a kind of continuum of therapies which are concerned with
the patient's memories (however they are recovered). . . . Outside the continuum
entirely are . . . therapies that don't make reference to memory, or use
memory, in any formal way, and which don't make assumptions about the historical
causes of present symptoms. [23]
According to FMS theory, then, therapy clients have been subjected to RMT
if they remember or talk about anything from their past — an activity
that is "hazardous" because it can result in "false memory syndrome."
Where does the American Medical Association stand on the use of hypnosis
in therapy?
Appendix A of the TRMP Act explains how this bill would require therapists
"who offer hypnosis as a means of 'recovering repressed memories' " to be
aware of "the 1985 public warning by the AMA that such a procedure is likely
to produce false memories which may be damaging to the patient."[24] However,
a spokesperson for the AMA said that he recalls no such warning ever being
issued. He indicated that the AMA regards the therapeutic use of hypnosis
as "successful and should be practiced by trained professionals."[25]
In a 1984 report on refreshing recollection through hypnosis, the AMA reaffirmed
its longstanding recognition of hypnosis as a valid therapeutic modality:
As a therapeutic technique hypnosis may be helpful in
dealing with the emotional consequences of a traumatic event; that is, a
recollection may have emotional validity even if it may not be historically
accurate. Thus, it is not important for the therapist to concern himself
with the veracity of what is remembered under hypnosis, but rather to help
the patient integrate this material in an ego syntonic way to deal with the
traumatic events that are presumed to have occurred. [26]
This report made a distinction between the use of hypnosis to refresh memory
in psychotherapy patients and its use to refresh recall in victims and witnesses
of crime who participate in police investigations.[27] With respect to the
former, the AMA summarized its findings:
Hypnosis can be effective in helping some individuals
provide memory reports pertaining to events about which they are amnestic.
Such recollections, however, may or may not be accurate, although they may
be profoundly important in the psychotherapeutic treatment of the individual. [28]
The AMA acknowledged the legal ramifications of hypnotically refreshed memory,
which can vary by jurisdiction.[29]
Most therapists who work with trauma survivors understand that it is important
for clients not to confront or distance themselves from important figures
in their lives solely on the basis of material obtained through hypnosis.
When dealing with memories of childhood abuse, the AMA advises physicians
to "address the therapeutic needs of patients" who report such memories,
and that "these [therapeutic] needs exist quite apart from the truth or falsity
of any claim."[30]
Suggestibility and "The Abuse Excuse"
FMS proponents argue that some people are so suggestible that they can be
influenced into believing they were sexually abused in childhood when actually
they were not. This assertion, however, has little scientific basis. According
to a recent review of the scientific literature on this subject sponsored
by the National Institute of Mental Health:
The case for the suggestibility of real-life emotional
memory to intrusions from postevent information is weak. Studies of actual
victims and witnesses to crimes show no evidence of suggestibility, and diary
studies rarely reveal overt errors or confabulations. [31]
FMS proponents also frequently claim that many therapy clients are looking
for someone else to blame for their problems when they view their upbringing
as a source of current difficulty in life. However, an exhaustive review
of the literature on this subject found quite the opposite:
These data also help to rebut suggestions that depressed
individuals report more adverse childhood experiences for motivational reasons,
for example, because they wish to justify their current symptoms or to comply
with the wishes of their therapist . . . or because they have internalized
common ideas about links between parenting and psychopathology, which lead
them to "rewrite" their autobiographies to fit in with societal expectations
. . . . In any case, it would be inconsistent for depressed persons, who
in general tend to blame internal causal factors for their misfortunes .
. . to blame external factors such as their upbringing unless there were
good reasons for them to do so. [32]
Legitimate Concepts in Trauma Psychology: Repression and
Dissociation
While FMS proponents claim the existence of phenomena (i.e., FMS and RMT)
that are unknown to science, they correspondingly ignore the wealth of clinical
and experimental data supporting traumatic amnesia. There is indisputable
evidence that traumatic childhood events can be accurately recalled after
a period of apparent amnesia, yet they deny this ability by asserting that
there is no proof for the existence of repression — the burying
of intact memories that are too painful for conscious awareness. This assertion
is based on a single literature review that lacks direct relevance to the
recovered memory controversy and has been cited out of context.[33] Further,
it erroneously assumes that there is but one theoretical mechanism by which
traumatic amnesia can occur.
Trauma experts generally agree that dissociation — the fragmenting
of awareness into elements of behavior, emotional feeling, sensation, and
knowledge[34] — explains the broad range of clinical phenomena that
are consistently observed in trauma survivors, regardless of whether the
trauma is associated with combat in war, a natural disaster, sexual violation,
or other types of personal assault. Terror appears to shatter the unity of
awareness into pieces that are actually constantly remembered as intrusive
or avoidant symptoms until the experience can be integrated into "a fully
developed life narrative."[35]
Most mental health professionals who specialize in treating trauma survivors
understand the complex way in which humans respond to emotionally overwhelming
events, and they are skilled in recognizing what others are likely to
misinterpret or not notice. For example, many of the major features of
posttraumatic stress disorder (e.g., restricted range of affect, inability
to recall important aspects of the trauma) are actually dissociative
symptoms.[36]
Is there really an "epidemic" of child sexual abuse
accusations?
Sexual child abuse is still a highly underreported crime[37] and there are
no reliable statistics on its true incidence. We do know the number
of documented cases, though—152,400 in 1993 alone (these represent 15%
of all substantiated cases of child maltreatment in the United States for
that year).[38] Assuming that the incidence of sexual child abuse has remained
fairly constant over the past 45 years,[39] we can estimate the current
population of adult survivors between 25 and 45 (the age range of adults
most likely to seek therapy for abuse-related problems) by regarding this
figure as an annual rate of incidence and multiplying it by 20 years.
Conservatively, the population numbers 3,048,000.
In contrast, the FMSF claims to have been notified of 17,000 "complaints,"
[40] which, even if valid, represent only 0.6% of the estimated population
of adult survivors.
The FMSF has implied that the number of inquiries it has received since its
inception (17,000) is the same as its dues-paying membership (3,070 as of
March 15, 1995), fostering an exaggerated public perception of it's size.[41]
If the FMSF's actual membership is used in the above computation, the "epidemic"
of allegedly false child abuse accusations dwindles to 0.1% of the
conservatively estimated population of adult survivors. Naturally, this figure
assumes that each FMSF member represents a memory of abuse that is demonstrably
false.
What evidence is offered to prove that "dangerous" therapy is being
practiced?
Proponents of the TRMP Act claim that thousands of "families" have been destroyed
by "false memory syndrome." Many of these "families" belong to the FMSF.
The FMSF relies on two main sources of "proof" for its contention that consumers
have received bad therapy: (1) simple denial of guilt by those who have been
accused of sex crimes, and (2) the dramatic accounts of people who have recanted
their disclosures of abuse.[42]
Denial in sex offenders is a particularly well-documented phenomenon[43]
and has been studied in terms of its degree,[44] underlying motivation,[45]
accompanying pathology,[46] and other variables. Researchers in Great Britain
have actually been able to identify five distinct patterns of denial in sex
offenders.[47] One of these patterns features "externalizers," which are
offenders who are most likely to blame the victim or third parties:
Group 2, the 'externalizers', was composed predominantly
of offenders against young females. They tended to blame the victim for the
offence, and also blamed other, third parties such as their spouses.
Interestingly, in spite of this, a large minority in the group were recidivists
and many also admitted to other paraphilias. This group was most likely to
harbour a sense of injustice against the way people like themselves are dealt
with by the legal system, and their projective style of attribution often
took on a persecutory tone when turned on the police or the courts. [48]
Offenders may be subject to other types of perceptual distortion that free
them of guilt.[49] Indeed, some not only deny harming their victims but actually
claim to have helped them in a way.[50] Psychologist Daniel McIvor, Ph.D.,
observed a group of offenders who viewed themselves as "good family men":
They experienced no guilt, lied by omission, and effortlessly
utilized compartmentalization and rationalization . . . When they started
with one lie by omission, it soon spread to hundreds of lies. But they did
not feel they were "lying." They did not feel they were doing anything against
the law . . . [51]
Persistent denial on the part of perpetrators can actually be a factor in
the recanting of abuse disclosures, as some survivors capitulate when they
lack adequate emotional support to cope with the reality of their traumas.
Experts who treat victims of sexual abuse recognize that recantation is also
a psychological defense and can be part of the gradual and uneven process
of coming to terms with overwhelming trauma.[52] The American Psychiatric
Association acknowledged this clinical reality in their official statement
on memories of sexual abuse:
. . . hesitancy in making a report, and recanting following
the report can occur in victims of documented abuse. Therefore, these seemingly
contradictory findings do not exclude the possibility that the report is
based on a true event. [53]
In contrast, FMS proponents accept denials and recantations at face value.
Typically, they ascribe the long and troubled clinical histories of recanters
to benign causes — that is, if they acknowledge recanters' histories
at all. Often, FMS proponents portray the family lives of recanters as idyllic
prior to therapy and "destroyed" or "shattered" afterward, identifying mental
health services rather than sexual child abuse as a threat to a "sacred American
institution."
Polling for Evidence of "Dangerous" Therapy
The FMSF's efforts to substantiate member claims of "false" memory "implantation"
by therapists took the form of a survey in 1993. Of 487 questionnaires sent
to accused parents, 284 were returned. The results were given the following
interpretation:
The accusations are based on recovered "repressed" memories. [54]
The categorical nature of these results, achieved without direct or objective
evaluation of the primary subjects by trained professionals, was questioned:
I asked Dr. [Pamela] Freyd if any of the members' accusers
came about their memory in any other way. She responded, "There are a few
people who don't fit the demographic information." But did that mean their
memories were spontaneous? "I really can't answer that," was her
response. [55]
What, then, can be known about the "epidemic" from 284 self reports of
individuals accused of sex crimes? Only that the FMSF has yet to provide
data of scientific value.
In a recent article, psychiatrist Michael Good, M.D., made an important
observation: "Apart from anecdotal material, I . . . have been unable to
locate published analytic case reports in which a patient's plausible memory
of early trauma turned out to be essentially and verifiably false."[56]
According to psychiatrist Judith Herman, M.D., of Harvard Medical School,
"The very name FMS is prejudicial and misleading . . . we have no evidence
that the reported memories are false. We only know that they are disputed."[57]
Misrepresentations of Court Decisions
With no scientific evidence for "false memory syndrome," FMS proponents have
resorted to arguing their claims on the basis of activity in the courts.
They often assert that people alleging abuse can win "recovered memory" cases
on the strength of their memories alone. However, due process requires a
high standard of evidence, and substantial corroboration of the recalled
abuse must be presented for a lawsuit to be successful. FMS proponents typically
discount or ignore this corroborating evidence or else misrepresent the facts
of a case altogether.
For example, in her article, "Remembering Dangerously,"[58] FMSF advisory
board member Elizabeth Loftus, Ph.D., warns readers to "beware that . . .
case 'proofs' may leave out critical information," yet her own description
of Hoult v. Hoult ("The Case of Jennifer H.") fails to mention the
critical testimony of several witnesses, including the defendant's admission
of having sexually abused another child. Loftus implies that there was no
independent corroboration of the abuse:
These experts were apparently unaware of, or unwilling
to heed, Yapko's (1994) warnings about the impossibility, without independent
corroboration, of distinguishing reality from invention and his urging that
symptoms by themselves cannot establish the existence of past abuse. [59]
Yet the corroborative evidence in this case was overwhelming. (Significantly,
the decision in favor of Jennifer Hoult was upheld by the First Circuit Appellate
Court.)
Loftus writes that Jennifer "had 'experts' to say they believed [author's
emphasis] her memories [of sexual abuse by her father] were real." Actually,
the expert witnesses testifying on behalf of Jennifer indicated that her
clinical profile was consistent with having been sexually abused in
childhood, which is testimony of a very different kind.[60] Loftus fails
to mention that Jennifer's therapy did not involve hypnosis, drugs, suggestions
of abuse, or a diagnosis of abuse - all supposed hallmarks of "recovered
memory therapy." She writes that Jennifer "paid her therapist $19,329.59
. . . to acquire [the] knowledge"[61] of her father's sexually abusive acts,
yet the majority of Jennifer's therapy concerned issues other than abuse,
and most of her memories of abuse spontaneously emerged outside of
therapy.
Near the end of the article, Loftus writes that "Many of us would have serious
reservations about the kinds of therapy activities engaged in by Jennifer"[62]
— an ambiguous statement inviting the erroneous conclusion that Jennifer's
therapy involved practices similar to those Loftus describes early in her
article (e.g., age regression, guided visualization, trance writing). The
reader can find other examples of this kind of reporting throughout the text.
One of the most frequently cited cases by FMS proponents is Ramona v.
Isabella et al. In this action, non-patient Gary Ramona brought suit
against his daughter's therapists after events that transpired in the wake
of her reporting memories of his sexual abuse of her as a child. The jury's
decision in this complex case is often touted as a vindication of the false
memory hypothesis, but it actually reflected consideration of other issues.
This case was primarily concerned with the duty of care owed to Mr. Ramona
as a result of his presence in the office of his daughter's therapist during
a family confrontation. Importantly, Holly Ramona did not agree with her
father's claim of therapist malpractice, and the case did not address Holly's
memories or whether she had been abused by her father. As the jury foreman
remarked after the trial:
We were rather disturbed when Mr. Ramona captured the
headlines by claiming a victory of sorts, when we knew the case did not prove
he did not do it. I want to make it clear that we did not believe, as Gary
indicates, that these therapists had given Holly a wonder drug and implanted
these memories. It was a very uneasy decision and there were a lot of unanswered
questions. [63]
Does the TRMP Act address a real crisis in mental health
care?
The alleged "epidemic" of "dangerous" psychotherapy practices that are based
on "unsubstantiated pseudoscientific myths" appears itself to be a myth,
voiding the TRMP Act of its purported raison d'être. What, then,
is the true purpose of this legislation? The answer to this question may
be found in the bill's net effect.
An exhaustive medico-legal analysis of the TRMP Act in New Hampshire described
this legislation as "unnecessary" and "unworkable," and concluded that it
"would be the kind of radical surgery from whose very 'success' the patient
would bleed to death."[64] Indeed, the destructive impact of this bill would
be so profound that the American Psychological Association has issued a
resolution against it:
. . . the [APA] is opposed to the enactment of legislation
that, while seeming to protect the consumer, actually creates a bureaucracy
and unnecessary barriers that interfere with consumer access to mental health
services and fails to protect consumers. [65]
The TRMP Act is cloaked in the mantle of consumer protection, but its end
result speaks to another objective. Far from protecting consumers, this
legislation would sharply curtail the delivery of mental health services
by severely impairing the ability of therapists to provide adequate care
while mandating impediments to insurance reimbursement.
This bill would effectively eliminate the already-limited clinical resources
available to survivors of childhood sexual abuse, and it would severely hamper
the ability of survivors to obtain redress from their perpetrators. These
"reforms" sponsored by individuals accused of sex crimes would provide an
indirect means by which offenders could silence their victims and avoid
accountability. Considering the fact that victims of childhood sexual abuse
comprise a high proportion of psychiatric patients,[66] the homeless,[67]
drug and alcohol abusers,[68] pregnant teens,[69] runaway youth, and
prostitutes,[70] the TRMP Act would only complicate some of the most troubling
problems in society that directly or indirectly affect us all.
Acknowledgment
I am grateful to Mary R. Williams, J.D., for her invaluable help in
preparing portions of the manuscript.
ENDNOTES
[1] R. Christopher Barden (1994a). "A Proposal to Finance Preparation of
Model Legislation Titled Mental Health Consumer Protection Act." August, p 2.
[2] R.C. Barden (1995). "Draft of Truth and Resp. in MHP Act — State
Version. January 14.
[3] As originally introduced, the bill was entitled, "An Act Relative to
the Recovered Memory Syndrome" (HB 236).
[4] "Mental Health Providers Act" (HB 0966).
[5] "An Act Relating to Mental Health Treatment" (HB 669).
[6] Barden, 1994a, p 5.
[7] R. Christopher Barden (1994b). "Truth, Professional Responsibility and
Consumer Protection in Mental Health: Legal, Scientific, Historical, Social
and Legislative Aspects." 1994 Presidential Address to the National Association
for Consumer Protection in Mental Health Practices.
[8] HB 236 (New Hampshire), p 3; HB 0966 (Illinois), p 4. Nearly identical
wording appears in the Missouri version (HB 669, p 2) and the boilerplate
for the state version (Barden, 1995, pp 5-6).
[9] Barden, 1995, p 12.
[10] Leifer R (1966). Psychotherapy, scientific method and ethics. American
Journal of Psychotherapy 20: 295-304.
[11] Barden, 1995, p 5; HB 236 (New Hampshire), p 3; HB 0966 (Illinois),
p 4. Nearly identical wording appears in the Missouri version (HB 669, p
2).
[12] Barden, 1994a, p 5.
[13] Ibid.
[14] Barden, 1994a, p 6.
[15] Barden, 1995, p 10.
[16] Ibid, p 8.
[17] Subdivision 330-A25: Recovered Memory Cases. HB 236, p 1.
[18] Saunders LS, Buraztajn HJ, Brodsky A (1995). Recovered memory and managed
care: HB 236's post-Daubert "science" junket. Trial Bar News (New
Hampshire) 17: 30.
[19] Herman Ohme (1994). "Lobbying Made Easy." July 18, p 9.
[20] False Memory Syndrome Foundation. "Frequently Asked Questions." September
1995.
[21] Professional literature has the important distinction of requiring
legitimate scholarship, which is achieved through critical peer review by
academicians who are prominent in their areas of expertise.
[22] John F. Kihlstrom. "Recovered Memory Therapy defined."
Traumatic-stress@netcom.com, Wed, Jan 18, 1995 4:40 AM EDT; Message-Id:
Pine.SOL.3.91.950117112532.9979B-100000@minerva.
[23] John F. Kihlstrom. "Belated Reply to Goodrich on Recovered Memories."
Traumatic-stress@netcom.com, Wed, May 17, 1995 4:06 PM EDT; Message-Id:
Pine.SOL.3.91.950517144624.24676B-100000@minerva.
[24] Barden, 1995, p 14.
[25] Interview with Judith M. Simon, September 19, 1995.
[26] AMA Council on Scientific Affairs (1984). Scientific status of refreshing
recollection by the use of hypnosis. CSA Report K (I-84), p 321.
[27] Ibid, p 318.
[28] Ibid, p 323.
[29] Ibid, p 317.
[30] AMA Council on Scientific Affairs (1994). Memories of childhood abuse.
CSA Report 5-A-94, p 4.
[31] Koss MP, Tromp S, Tharan M (1995). Traumatic memories: Empirical
Foundations, forensic and clinical implications. Clinical Psychology:
Science and Practice 2: 127.
[32] Brewin CR, Andrews B, Gotlib IH (1993). Psychopathology and early
experience: A reappraisal of retrospective reports. Psychological
Bulletin 113(1): 91.
[33] Gleaves DH (1996). The evidence for 'repression': An examination of
Holmes (1990) and the implications for the recovered memory controversy. Journal of Child Sexual Abuse 5: 1-19.
[34] Braun BG (1988). The BASK model of dissociation. Dissociation 1(1): 4-23.
[35] Herman JL (1992). Trauma and Recovery. New York: BasicBooks,
p 184.
An example of this therapeutic dynamic is described by psychologists Dori
Laub and Nannette Auerhahn in their case presentation of A. When A came upon an
accident scene, he felt compelled to apologize to the injured party for not
saving his or her life. Difficulty concentrating, somatic complaints, and
the inability to establish a stable relationship with a woman eventually
prompted him to seek professional help. With treatment, A was able to remember an experience from his youth
in which he discovered the body of a loved one whose death he felt he contributed
to. Subsequently, his symptoms resolved and he was able to begin a relationship.
(Laub D, Auerhahn NC [1993]. Knowing and not knowing massive psychic trauma:
Forms of traumatic memory. International Journal of Psycho-Analysis 74: 287-302).
[36] Braun, p 8; van der Kolk BA (1987). Psychological Trauma. Washington,
D.C.: American Psychiatric Press, p 17.
[37] Peters SD, Wyatt GE, Finkelhor (1986). "Prevalence." In D Finkelhor, A Sourcebook on Child Sexual Abuse. Newbury Park, CA: Sage, p 18.
[38] McCurdy K, Daro D (1994). Current trends in child abuse reporting and
fatalities: The results of the 1993 annual fifty state survey. Chicago: National
Committee for the Prevention of Child Abuse.
[39] A nationwide poll conducted by the Los Angeles Times 10 years ago indicated
that 22% of the 2,627 adults surveyed (27% of women and 16% of men) had been
sexually abused in childhood (August 25, 1985, p 1; August 26, 1985, p 1),
suggesting that sexual child abuse was at least as prevalent 45 years ago
as it is today.
[40] FMS Foundation Newsletter, March 1, 1995.
[41] Lawrence LR (1995). "False Memory Syndrome Foundation's Membership
Exaggerated: Organization Only Has About 3,100 Members." Moving Forward Vol. 3, No. 3, pp 6-7.
The fact that the FMSF offers "family" and "professional" memberships but
no "individual" memberships further obscures the perception of its size.
[42] Executive Director Pam Freyd claims that the FMS Foundation has been
contacted by "well over 200 recanters" but doesn't keep a precise running
count (interview with Judith M. Simon, July 14, 1995).
[43] Kennedy HG, Grubin DH (1992). Patterns of denial in sex offenders. Psychological Medicine 22: 191-6; Haywood TW, Grossman LS, Kravitz
HM, Wasyliw OE (1994). Profiling psychological distortion in alleged child
molesters. Psychological Reports 75: 915-27; Marshall WL, Eccles A
(1991). Issues in clinical practice with sex offenders. Journal of
Interpersonal Violence 6(1): 68-93; Grossman LS, Cavanaugh JL (1990).
Psychopathology and denial in alleged sex offenders. The Journal of Nervous
and Mental Disorders 178(12): 739-44; Marshall WL (1994). Treatment effects
on denial and minimization in incarcerated sex offenders. Behavior Research
and Therapy 32(5): 559-64.
[44] Langevin R (1988). Defensiveness in sex offenders. In R Rogers
(Ed), Clinical Assessment of Malingering and Deception. New York:
Guilford Press, pp 269-90.
[45] Rogers R, Dicky R (1990). Denial and minimization among sex offenders:
A review of competing models of deception. Annals of Sex Research 4: 49-63.
[46] Grossman & Cavanaugh.
[47] Kennedy & Grubin.
[48] Ibid, p 195.
[49] McIvor DL (1993). How do non-adjudicated sex offenders think? Treating
Abuse Today 3(6): 28-30.
[50] Ibid, pp 28-29; Kennedy & Grubin, p 195.
[51] McIvor, p 28.
[52] Summit R (1983). The child sexual abuse accommodation syndrome. Child
Abuse & Neglect 7:177-93; Sorenson T, Snow B (1991). How children
tell: The process of disclosure in child sex abuse. Child Welfare 70(1):3-15.
[53] American Psychiatric Association. Statement on memories of sexual abuse.
December 12, 1993.
[54] False Memory Syndrome Foundation (1993). Family Survey Results. Summer,
p 1.
[55] Abern A (1995). Sexual abuse: When is it real? Unpublished manuscript,
on file at Treating Abuse Today, p 12.
[56] Good MI (1994). The reconstruction of early childhood trauma: Fantasy,
reality, and verification. Journal of the American Psychoanalytic
Association 42(1):81.
[57] Herman JL. "Adult Memories of Childhood Trauma: Current Controversies."
Position paper presented at the annual meeting of the American Psychiatric
Association, San Francisco, May 26, 1993.
[58] Skeptical Inquirer, March/April 1995, pp 20-9.
[59] Ibid, p 27.
[60] Despite defense counsel's repeated attempts to induce Renee Brant, M.D.,
to testify about whether she believed Jennifer, Brant adamantly and unequivocally
refused to do so.
[61] Skeptical Inquirer, p 27.
[62] Ibid, p 28.
[63] Butler K: Clashing memories, mixed messages. Los Angeles Times
Magazine, June 26, 1994, p 12.
[64] Saunders et al, p 37.
[65] American Psychological Association. Resolution on "Mental Health Consumer
Protection" Acts. February 18, 1995.
[66] Craine LS, Henson CE, Colliver JA, MacLean DG (1988). Prevalence of
a history of sexual abuse among female psychiatric patients in a state hospital
system. Hospital and Community Psychiatry 39(3): 300-4; Bryer JB,
Nelson BA, Miller JB, Krol PA (1987). Childhood sexual and physical abuse
as factors in adult psychiatric illness. American Journal of Psychiatry 144: 1426-30; Swett C Jr, Surrey J, Cohen C (1990). Sexual and physical abuse
histories and psychiatric symptoms among male psychiatric outpatients. American Journal of Psychiatry 147: 632-6.
[67] Goodman L, Saxe L, Harvey M (1991). Homelessness as psychological trauma
— Broadening perspectives. American Psychologist 46(11): 1219-25.
[68] Craine et al.; Briere J, Runtz M (1988). Post sexual abuse trauma. In GE Wyatt & G Powell (Eds.), Lasting Effects of Child Sexual
Abuse. Newbury Park, CA: Sage, pp 85-99.
[69] Jennifer Steinhauer. "Study Cites Adult Males for Most of Teen-Age Births." New York Times, August 2, 1995, Section A, p 10.
[70] Wurtele SK, Miller-Perrin CL (1992). Preventing Child Sexual Abuse — Sharing the Responsibility. Lincoln: University of Nebraska Press, pp 8-10.
FURTHER READING
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Related information: 
False Memory Syndrome: The Big Lie
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