False Memory Syndrome Foundation News Alert 1/3/13

The False Memory Syndrome Foundation is updating their website so permission was granted to this blogger to publish this News Alert compiled by the False Memory Syndrome Foundation Staff.

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Dear Friends of the FMSF:

 The end of 2012 marks a time to thank FMSF members for your support for so many years, a time to send good wishes to you for the New Year, and a time to reflect on the past year.

 The past year turned out to be an eventful one for the False Memory Syndrome Foundation:  A move from an office space to an electronic operation; a meeting of 150 members in October; and positive results in several legal decisions that make the case law regarding recovered memories even stronger.

 We have finally completed our move from the rental space to an electronically-based environment.   We are using email to communicate with our members – old and new – and are working to update our FMSFonline.org website soon.   Regular email News Alerts have replaced the quarterly newsletters. We’re also pleased to see that some or our supporters have created an independent site on the popular social network Facebook where those who join can share news and other information related to this phenomenon.  (The Facebook site “The False Memory Syndrome Action Network” is not controlled or officially sanctioned by the FMSF).

 The Tribute for the Executive Director in October featured outstanding talks by Harrison Pope, M.D., Elizabeth Loftus, PhD., and Paul McHugh.  A write up of that meeting will be forthcoming. In the meanwhile, if you would like a copy of Dr. McHugh’s paper write to JBeanfmsf@gmail.com with Subject Line: “McHugh Talk”.  The conference also resulted in a new cadre of volunteers working on FMS issues!

 ~~~~~

On the legal front there are two decisions of special interest in the past couple of years.  (Details of each are included in under Legal Issues.)

 The North Carolina case was a family tragedy in which the accuser became convinced through therapy that she was abused.  In that case, the state could have proceeded if they’d had real evidence.  They could not because the only evidence was the therapy-induced “memories” which the court found to be unreliable. 

 Minnesota’s case was one of clergy abuse in which someone came forward after hearing of large settlements in other lawsuits against his former priest.  Whether the plaintiff was abused or not was never an issue heard by the court- perhaps he was.  The only issue heard was whether the court would toll the statute of limitations based on the claim that the plaintiff had suffered 20 years of amnesia.   In the end, the court did not believe the amnesia. 

 We look forward to more positive changes in 2013 with renewed hope and energy.

*****

LEGAL ISSUES

MN v Doe 76C v Archdioceses of Saint Paul and Minneapolis, A10-1951, State of Minnesota Supreme Ct, July 25, 2012

 

Early in 2012, attorneys contacted the FMSF to ask if the Foundation would file an amicus brief in this case for the Archdioceses. We agreed but not without reflection. The problem was that the priest who was sued, Fr. Adamson, had a history of abusing children. Some of his victims sued the Dioceses in the 1980s and the cases received much publicity at that time – more than 130 newspaper articles. Doe’s parents testified that they discussed the issue with him at the time. Yet Doe claimed he was unaware of the abuse until 2002 when he had “a series of flashbacks” about Adamson touching him.  Doe claimed that in therapy he remembered other incidents of abuse.

 

The issue in this case was that John Doe 76C filed his case past the Minnesota statute of limitations. In filing his case he wanted to present expert testimony to show that the theory of repressed memory would explain that the abuse caused a disability, his memory loss of the 1980s’ abuse, and that is why he did not file within the time frame.

 

We agreed to file an amicus brief because the unscientific nature of the theory of repressed and recovered memories ought not to be used to circumvent the statute of limitations.

 

Doe filed the claim in 2006, and a district court, after a hearing in 2009, “concluded that Doe’s expert testimony was inadmissible under the Frye-Mack standard. The rule governing admission of scientific evidence in Minnesota states (Rule 702):

 

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The opinion must have foundational reliability. In addition, if the opinion or evidence involves novel scientific theory, the proponent must establish that the underlying scientific evidence is generally accepted in the relevant scientific community.”

The experts at the 2009 hearing for John Doe were Dr. James A. Chu, M.D. and Dr. Constance Dalenberg, Ph.D.  The experts for the Dioceses were Dr. Harrison G. Pope, Jr., M.D., Dr. William M. Grove, Ph.D., and Dr. Elizabeth F. Loftus, Ph.D. We encourage you to read the Supreme Court decision in this case for a summary of that hearing and the court’s evaluation of the experts. It can be found at    http://caselaw.findlaw.com/mn-supreme-court/1607268.html

Doe appealed the district court decision and the appeals court overturned the district court opinion. The Dioceses then appealed to the Minnesota Supreme Court.  The Minnesota Supreme Court concluded that the expert testimony was inadmissible “because it lacks foundational reliability.” Doe could not bring his case to court.

 

Some comments from the Minnesota Supreme Court opinion:


“In other words, the court concluded that, because of serious methodological flaws, the scientific literature relied upon by Doe’s experts simply did not support an argument that “someone could have a terrible trauma and then be literally unable to remember it for a period of time.” The studies did not successfully differentiate repressed memory from other types of memory loss that would not delay the accrual of a cause of action, which is a critical distinction.”

“Moreover, the district court found that “the accuracy of the recovered memories has not been scientifically established,” and Doe’s experts conceded that there was no way to tell whether a person was actually suffering from repressed memories in any given case. “

 

“In judging the overall reliability of the theory, the court found that while there are hundreds of studies on the theory of repressed and recovered memory, it was unconvinced that any of the studies had proved the existence of, much less the accuracy or reliability of, repressed and recovered memories.”

 

* * *

 

North Carolina v King  No COA10-1237, Ct Appeals NC, Aug. 2, 2011

 

This case began in 2005, but was influenced by the 1997 decision in Barrett vs Hydlburg.

 

In February of 1993, 45 year old Sandra Barrett watched the televised movie “Not in My Family”, the fictional account of a depressed woman who suddenly recovers memories of having been abused by her father.    Shortly after seeing this film, Ms. Barrett says she began having spontaneous recall of being molested by her father 40 years prior.  Ms. Barrett filed a civil suit against her father for her mental and emotional distress.  

 

  Barrett’s case ambled through the system.  Finally in 1997, the court decided that Ms. Barrett could not testify about any “newly recovered memories” unless the she obtained an expert who could explain the repression phenomenon to a jury.    Rather than seek this expert testimony, Ms. Barrett appealed the decision. 

 

The lower court was ultimately upheld by the superior courts, citing a similar decision in NH v Hungerford: “To argue that a jury could consider such a phenomenon, evaluate it and draw conclusions as to its accuracy or credibility, without the aid of expert testimony is disingenuous to say the least.” 

 

Eight years later, in 2005, 17 year- old A. King, began having unexplained fainting spells.  No medical cause for the symptoms could be determined.  Shortly thereafter, Miss King began entering fugue-like states, and superficially cutting herself.  Two psychiatrists diagnosed this as a psychosomatic illness, or “conversion disorder”.   Miss King was assigned to a psychiatric nurse named Liz Watson for additional therapy. 

 

Therapist Watson asked Miss King to journal the memory of any traumatic event from her childhood.  Miss King wrote about a time when, on a visitation with her father at the age of 7, she had fallen while getting out of the bathtub.  She couldn’t recall much more about the incident, except that she’d sustained  some genital injury, and was taken to the emergency room to treat the laceration.  

 

The therapist asked what Miss King would think if a friend told her that story.  Miss King said she would probably suspect sexual abuse, but that her father would never do anything like that.   Therapist Watson then told Miss King, “sometimes the mind will go someplace else when something very difficult or painful might be happening.”  

 

Approximately one month after this appointment, Miss King had a “flashback” of being raped by her father in the bathroom.   Therapist Watson had Miss King report this “flashback” to both the Department of Social Services and to the local Sheriff’s Department.   The allegations were then forwarded to the local DA, who filed criminal charges against Miss King’s father. 

 

Four years after his 2005 arrest, Mr. King refused the state’s offer of a plea deal.  He immediately found several additional charges levied against him, all based on the same alleged event.

 

Since it is required by the precedent in Barrett, the prosecution was allowed state funding to secure an “expert” to testify that repression of traumatic event is possible.  

 

Rather than having an expert to simply counter those claims, the defense hired an expert to show the flaws in the research, the extreme amount of disagreement in the scientific community, and to explain why no jury should ever hear such unproven theories in an American courtroom. 

The court agreed with the defense, stating, “The scientific aura surrounding repressed memory theory and an expert who would testify about it might become so firmly established in the minds of potential jurors that they may assign undue credibility to repressed memory evidence.”

 

On August 2, 2011, the appellate court affirmed that decision. 

 

All testimony which relies on repressed/recovered memory is now effectively barred from courtrooms in the state of North Carolina. 

 

Barrett v Hyldburg:  http://caselaw.findlaw.com/nc-court-of-appeals/1235159.html 

 State v King: http://caselaw.findlaw.com/nc-court-of-appeals/1576370.html


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4 Comments

  1. Hi Jeanette,

    My website (alexstraaik.com) is one of the many included in the directory of those writing on DID—a single essay among 70 others, some of which are originally self-published, and others that were professionally published by mental health professionals. While I do not agree with your thesis in toto, I believe in freedom of speech, especially by those who are writing from places of genuine care and not that of malice. I am sorry to see your blog (and you, really) have had truly nasty and unhelpful remarks leveled against you. Writing in a public sphere is challenging on many fronts, and the various types of backlash that can occur (naturally, I suppose, I’ve had my share of mean-spirited comments left for me, and as I do not believe in censorship (except in cases where comments are starkly obvious and useless trolling), they are left for others to interpret as they will. The article I wrote on DID was predicated on research, as well as primary source experiences—but as there is research in most cases that points to opposite conclusions, I try to take stock of that as well. Like you, I have studied and worked as a writer and in behavioral health, and have also engaged in litigation against a psychiatric hospital for incorrect diagnosis and, respectively, outrageously dangerous decisions regarding medication that left me in far worse states than I was originally in (and even resulted in my right arm being severely broken in six places and left that way for days on end, until I was released and able to go to another hospital for actual care). I’m sorry you’ve had to deal with what sounds horrific, and am glad you too took steps to counter it, as it’s not easy and seems to go on just about forever.

    It would be helpful to note that my website currently contains over 70 essays, and just ones deals with DID. For the most part, I write on a wide variety of mental health issues, and the way they play out in various forums (e.g., employment issues, economic challenges, recovery efforts, and so on). It would be nice to include this information when including my work in your directory. I don’t object to it—as a public site, I agree that it is meant to be shared, and I understand the pros and cons of that decision. I simply do not want my website to be incorrectly pigeon-holed as being some class of exploration of DID, as it is not. Interesting, the article I wrote on DID has received the most hits, and generated the majority of feedback, which I was not expecting. The comments and emails about that piece have been overwhelmingly positive and grateful—something else I did not anticipate. I do not think one diagnosis fits everyone, and certainly believe there are people truly suffering from DID and repressed memories. My closest friend, who holds an extremely high-ranking position in the Department of Public Health has been able to uncover memories of abuse via EMDR—she does not have DID, but the fact that her memories were found to be accurate is undeniable. It’s certainly a greatly complex issue, and I appreciate your perspective. I hope you’ll read some of the other work on my website, and find at least an essay or two to be helpful to the greater community we both are in some way a part of.

    I hope any attacks against you—especially personal ones and not constructive critiques of your writings—cease, as they are always inappropriate and useless. Unfortunately, the relative anonymity of the Internet seems to bring out the worst in people at times. I’m glad you’ve not let it silence you—I refuse to allow it to silence me—as every voice is needed in this essential dialogue.

    Take care and be well,
    Alex

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    Reply
    • Jeanette Bartha

       /  01/05/2013

      Hello Alex, What a pleasant surprise to have you visit. As you’ve noted, support for my work.

      I took a quick look at your website and will do more reading. I think your article on employment, is a topic many mental health patients cope with.

      While this blog targets Dissociative Identity Disorder, the sub-title is “A Matter of Mental Health”. It affords me the opportunity to educate and offer information on a variety of subjects.

      I too, am sorry to learn of your horrific experiences with mental health care. I have also suffered broken bones, chipped teeth and many bruises and other injuries.

      Personal attacks on me will not likely cease and I have no expectations that they will. DID is about thought reform, mind control, and entrenched belief systems. When some people find what I say too upsetting or when comments challenge their thinking – they often strike out and are unable to hold rational conversations – or perhaps they are unwilling to do so because name-calling and character assassinations are easier.

      Thank you again for stopping by – I look forward to reading your work. Best. JB

      Like

      Reply
  2. I wonder if my abusers, who are suing me for defamation (blog), filed the Complaint in North Carolina because of how negative the courts there view recovered memories. Regardless, I still feel that my case would blow the lid off their cover. I do have bits of evidence including the corroboration of one witness. I feel, too, that people would come out of the woodwork, since there are many who remember the event.

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    Reply
    • Jeanette Bartha

       /  01/05/2013

      First, know I am not a lawyer, but have some experience with lawsuits.

      Maybe your abusers choose NC to sue you for the reasons you stated – it makes sense. It could be a whole lot of other reasons like the support the defense team will get in that location, the good standing of the defendant, the increased cost to you if you do not live in NC, etc.

      People may “come out of the woodwork as you say” – they may not. In my experience, people do not put themselves on the witness stand or back up a defendant because of the hardship it can cause them. They may support you verbally and emotionally, and supply your attorney with information, but depending on them to do what they commit to in court is iffy. People are not eager to be associated with sexual assault cases, may fear courts, exposure of a past their families don’t know about, don’t want to tarnish their reputations, jeopardize jobs, etc.

      Your case will indeed shed light on an event you allege occurred in your life. Just remember, you can present all the facts in the world and still lose your case on some technicality or prejudice.

      Lastly, the expert witnesses for the plaintiff will likely argue that the event occurred decades ago and cannot be recalled accurately.

      You might want to read up on cases like yours and case law if you haven’t already. You can go to the False Memory Syndrome Foundation website http://www.fmsfonline.org or to state legal orgs to read about cases and judges.

      Just my experiences.

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      Reply

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