Book Review - Memory-Trauma Treatment and the Law
Cultic Studies Journal,16, (1), 1999, 70-73
Book Review - Memory, Trauma Treatment, and the Law.
Daniel Brown, Alan W. Scheflin and D. Corydon Hammond, W. W. Norton & Company, New York, London, 1998, 737 pages.
A comprehensive review of the literature and research on trauma, memory, post-traumatic stress, dissociative amnesia, hypnosis and related legal cases, Memory, Trauma Treatment and the Law received the American Psychiatric Association's 1998 Manfred S. Guttmacher Award as the most outstanding publication in forensic psychiatry. The award is well deserved. This book represents the combined knowledge of three prominent experts in the fields of memory, trauma, post-traumatic stress, suggestibility, hypnosis, mind control and behavior control. An extensive bibliography allows the serious researcher to consult original source materials and provides the opportunity for further study. This book is an excellent reference for mental health providers, legal experts, child abuse investigators, researchers, policy makers, attorneys, and judges involved in legal cases where issues concerning memory, suggestibility, or hypnosis arise.
A central focus of this book is the debate that revolves around allegations of childhood sexual abuse, otherwise known as the "false memory controversy." The authors provide a balanced and creative overview of the debate. They expose the false logic underlying some theoretical models of false memory. They provide constructive guidelines to minimize the risk of suggestibility in therapeutic and investigative settings. And they propose their own phase-oriented trauma treatment model.
The authors review in depth the current state of the science of memory, suggestibility, and hypnosis, as well as several recent legal cases involving repressed memory and hypnosis. They describe the historical origins of what has been called "the false memory debate" through the recent rise of the False Memory Syndrome Foundation and other groups. This debate revolves around the validity of "repressed memories," or more appropriately, dissociative amnesia, for childhood trauma. The authors cite authorities on both sides of the debate, highlighting the definitional problems created by false memory advocates in their misleading use of ambiguous terminology such as "robust repression" and "recovered memory therapy." In extensive detail, the authors review thirty recent studies, every one of which documents that a subgroup of traumatized patients are amnesic for childhood sexual abuse.
The authors suggest that a possible motivation for denying the existence of repression is to challenge the discovery rule that in many states suspends the expiration of the statute of limitations for filing legal claims arising from child sexual abuse. In instances where memories of abuse have been repressed, a majority of the states have extended the time limit for filing suit until discovery of the abuse. If repression is shown to be unscientific as claimed by false memory advocates, the delayed discovery doctrine would no longer assist the alleged adult victim in holding alleged abusers accountable in court. After an extensive review of memory literature the authors conclude that extensions in the statutes of limitation for claims arising from child sexual abuse are justified.
This book contains a concise review of the voluminous memory literature, including the origins of trace and constructionist theories of memory, the development of memory in early childhood, the differences between explicit and implicit memories, and recent studies of the neurobiology of traumatic memory. Scientific advances through the use of PET scans, which demonstrate that traumatic memory is processed differently from normal verbal memory, are described. The authors postulate that a partial constructivist theory might apply to trauma. Neurobiological advances suggest that traumatic memory is very different from unstressed memory for nonmeaningful material studied by "false memory" laboratory researchers. The authors condemn the unscientific extrapolation of laboratory studies dealing with memory completeness for peripheral details in nontraumatic situations to memories for central details involving traumatic events. Their review of several problematic court cases influenced by these erroneous views suggests that great harm was caused to individual litigants and to legal theory.
The authors review studies on different types of memories, such as flashbulb memories (e.g. the explosion of the Challenger), autobiographical memories, memories for events of impact, and memories for traumatic events. They also review studies that demonstrate the existence of partial or full amnesia for disasters, combat experience, torture experiences, prisoner experiences, physical abuse, and rape.
Most significant to the "false memory" debate, the authors review in detail thirty studies using a variety of designs that demonstrate amnesia for childhood sexual abuse. A table summarizing the findings of these studies appears on pages 195-196. While base rates varied, the average rate of full amnesia across all thirty studies was found to be approximately 29.6%. The authors also review the research on memory accuracy, concluding that the gist of recovered memories is generally accurate although perhaps not the peripheral details.
The distinctions between misinformation suggestibility, interrogatory suggestibility, and brainwashing are explained in Chapter 9 and 11. False memory advocates, who typically study misinformation suggestibility and effect, claim that therapists implant false memories of childhood sexual abuse in the minds of their patients. The authors criticize those who generalize findings on misinformation effect to possible suggestive influences in psychotherapy. The authors found no convincing evidence that specific memory representations for fictitious childhood events can be implanted in adults outside of hypnosis. After a review of the literature on coercive persuasion and the ideological conversion which can take place as part of religious cult social behavior, the authors describe a very specific set of conditions necessary to create false beliefs of abuse that did not happen, which most psychotherapy fails to approximate.
Several chapters of the book are dedicated to the subject of hypnosis, making this book essential reading for professionals who use hypnosis. After a detailed review of hypnosis studies, the authors conclude that hypnotic procedures, when used appropriately, are no more likely to contaminate memory than techniques such as routine interviewing or questioning, the results of which are admissible in courts. A critical review of the 1985 American Medical Association's Council on Scientific Affairs report on hypnosis is included in Chapters 10 and 18. The authors point out that the most sophisticated scientific research on hypnosis has occurred since the 1985 AMA report. They provide several recommendations including the use of informed consent forms and adherence to the guidelines published by the American Society of Clinical Hypnosis to minimize the risk of suggestibility and to prevent the inadvertent forfeiture of legal rights.
In chapters 13, 14 and 15, the authors dispel the claim that "memory recovery therapy" is commonplace in trauma treatment, as suggested by false memory advocates. Rather, the treatment generally accepted by trauma experts involves three major stages of phase-oriented treatment: (1) stabilization; (2) integration; (3) post-integration of self and relational development. These three chapters will be particularly useful for trauma clinicians. The authors offer their own phase-oriented treatment model, which incorporates the step-wise approach recommended in child abuse investigations. They recommend that clinicians document therapeutic work and abide by ethical rules and licensing statutes in order to preserve patient's legal rights and protect the clinician from possible third-party claims and claims of malpractice.
The final three chapters discuss the relationship of the law, trauma treatment, dissociative amnesia, hypnosis, and the false memory debate. The legal system's treatment of memory issues and the standard of care for clinicians are discussed in the context of a variety of legal cases, including cases brought by alleged victims of sexual abuse against alleged perpetrators, third-party claims brought by the accused against therapists, recanter suits against therapists, criminal cases involving repressed memories, and several cases involving the complex legal rules concerning post-hypnotic testimony. The authors convincingly demonstrate that the science has evolved to the point of documenting that dissociative amnesia is experienced by a significant minority of victims of child sexual abuse and that hypnosis, when properly used, is not a memory contaminant. A review of several problematic court cases illustrates that some legal decisions lag behind the current state of memory science. The authors urge the courts, legislatures, public, and media to educate themselves about the current state of the science on memory and hypnosis so that legal and policy decisions are not based upon erroneous unscientific views.
Helen L. McGonigle, Esq.
Helen L. McGonigle, Esq. is an attorney having practice law before Connecticut state and federal courts since 1986. She earned her Juris Doctorate from Loyola University School of Law and is a member of the American Bar Association, Association of Trial Lawyers of America, Connecticut Bar Association and Connecticut Trial Lawyers Association. She is also the 1998-1999 Chair of the Connecticut Bar Association's Victim's Rights Committee, an advisory board member of the International Council on Cultism and Ritual Trauma, and an advisory board member of the International Association of Forensic Hypnosis. Attorney McGonigle was the plaintiff's lawyer in the landmark case of Borawick vs Shay, which set a legal precedent in the U.S. Court of Appeals for the Second Circuit adopting the totality of the circumstances test of admissibility for post-hypnotic testimony