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TO: FROM: The article by Bowman and Mertz in the Fall 1996 issue of this journal is part of a tenacious effort by the authors to influence the juggernaut of so-called recovered memory cases now rolling through U.S. courts. I have watched the authors carry their argument to other prestigious forums: the Harvard Law Review, the Chicago Tribune, and the conference podium. But their arguments are spurious and misleading, and I feel compelled to respond. I see their cry for "a balanced approach" to these volatile issues shaped and colored by an agenda which might not be readily visible to judges perhaps unfamiliar with the political dynamics of the "memory wars." I have spent three years intimately involved with them, attending every day of the seven-week third party malpractice trial which has become the authors' bete noir, the landmark Ramona v Isabella, and then researching and writing a book on the trial and its backdrop of social issues. Ramona is the Napa Valley case which, for the first time, gave a father, Gary Ramona, the right to sue the therapists he blamed for planting false memories of childhood sexual abuse in his daughter Holly's mind. Holly's "flashbacks" of twelve years of rape and forced bestiality with the family dog had erupted from a void while the depressed and bulimic 19-year old was under the care of a therapist. Holly confronted and sued her father for rape, he counter-sued and won a $500,000 malpractice case against the therapists. The jury found Holly's memories false and the therapists guilty of reinforcing, if not of implanting, the memories. Holly is currently pursuing her own case to its conclusion in a Los Angeles Superior Court, the tragic climax to the Ramonas' Seven Years War. Before challenging the authors' arguments, it is important to point out several vital points they omit. First, they fail to mention the epic social context of these cases &emdash; that these so-called "recovered memories" are not ordinary memory cases, like an eyewitness to a car wreck, but a virulent epidemic that, for a decade, has swept the North American continent, Australia and the U.S. What judges and courts face is the phenomenon of a unique kind of allegedly "repressed" and "recovered" memory that went unreported in the vast trove of psychotherapy literature until the late 1980s, when it burst forth in a flood. The authors omit mention that these memories, although radiantly believed by the young Holly Ramonas who retrieve them, are now broadly viewed as the psuedomemories of a classic psychogenic hysteria &emdash; an hysteria which has created an estimated several million adult "victims" of childhood sexual abuse, at least 900 lawsuits that have gone to the trial or appeals court level, and that has ravaged countless thousands of lives and families. These memories are increasingly being relegated to the mental health dustbin with such other epidemics of our day as satanic ritual abuse, alien abductions, and multiple personality. They fail to mention, too, that the memory wars are a politically-driven movement fanned to a destructive firestorm by, principally, two forces: the struggle of one hundred years of Freudian psychotherapeutic theory to survive withering attack, and the feminist movement's ongoing war against the patriarchy. Even as distinguished feminist author Anne Roiphe writes, "The view of the world as a giant evil patriarchal system seems headed for eventual ridicule and oblivion," this arm of the women's movement makes no secret of its goal to destroy all lingering vestiges of the patriarchal system which, it claims, lies at the root of the voicelessness, abuse and victimization of women. But it fails to report or admit that an army of suffering "survivors" is being exploited as cannon fodder for this larger war &emdash; vulnerable young women encouraged to seek and find memories of abuse as proof of the danger in every home of patriarchal tyrants disguised as regular dads. It is my strong opinion, too, that the survivor movement's fervent loyalty to increasingly discredited memories of childhood sexual abuse do a disservice, also, to the very group it claims to champion &emdash; the children who have been genuinely abused, sexually, physically, or emotionally. The reasonabless of the authors' style does not alter the fact that they are political pamphleteers fighting a battle of desperation to save a movement dying of its own unhealthy weight. Following the classic life cycle of mass hysterias, the number of reported memories, accusations and lawsuits is reportedly in sharp decline; since the 1994 Ramona case, the numbers have plunged as precipitously as they climbed to their peak in 1992 and '93, and have cooled down to the relative trickle with which the hysteria began around 1986. All 17 of 1996's state appellate decisions dismissed the accusing plaintiff's charges of remembered abuse. Of 35 cases in the past two years involving third party lawsuits against therapists and/or the scientific acceptability of recovered memories, 25 went against the memories, 4 supported them, and 6 have not been concluded. There has been a cascade of multi-million dollar jury awards and settlements against therapists, and a growing trend to test the beleaguered memories' admissibility in pre-trial Daubert and Frey hearings before permitting them before a jury. The medical and psychological associations of four nations have issued official cautions regarding the untrustworthiness of recovered memories. Although fierce last-ditch courtroom battles still rage, the "incest survivor machine" (a term coined by another disillusioned feminist, social psychologist Carol Tavris) has apparently lost the intellectual/scientific war and is now trying to save the remaining cases by disguising them as routine "memory cases like any other," as the authors do in this article. The arguments made by Bowman and Mertz must be seen in this larger context. Which brings me, now, to what the authors do say. First, they charge the media with giving an unbalanced picture of the memory wars. Has it occurred to them that the growing media skepticism they see as so unfair may not be the product of brainwashing by the False Memory Syndrome Foundation, but simply the product of journalists doing a responsible job of reporting the news, which has been largely negative for recovered memories like Holly Ramona's? Why do they complain to judges? Any judge should find it insulting to have it suggested that he should go soft on recovered memories to even things up. My own skepticism as a journalist has certainly grown since the gullible, awestruck days of the Franklin murder trial in California in 1990, when both media and public unabashedly embraced George Franklin's conviction of murder solely on the strength of his daughter Eileen's vivid flashbacks. Bowman and Mertz report, here, a 1995 decision that stated that the reversal of Franklin's conviction was categorically not a rejection of recovered memories, per se. And yet they did not report the dramatic final denouement of the Franklin case a year later, which indeed cast doubt on recovered memories: on July 3, 1996, George Franklin was freed, the caseagainst him fully dismissed, because of new charges by Eileen's sister that the memories had emerged from hypnosis &emdash; and because of behind-the-scenes revelations by the defense that it had found a fool-proof alibi for Franklin for another years-old murder his daughter had "remembered" him committing. These events were the final "nail in the coffin" as Eileen's credibility sputtered out in disgrace. The authors themselves can be criticized for selectively using media stories to make their arguments. I am dismayed to see, in their work, survivor rhetoric replacing the academic rigor I expect; they read no Ramona trial transcripts, though tapes could easily have been acquird, but relied heavily instead on "voluminous press coverage" of the Ramona trial--largely on an L.A. Times Magazine article by a writer with demonstrated sympathy for the recovered memory side (a contributing editor to the Family Therapy Networker). Second, the authors argue that proof of repression and recovery of memory has been found in abundance. They cite a series of much-quoted studies by clinician-reearches as one of their proofs. Others have dismantled this claim in detail, but I shall just reiterate that, applying the four fundamental criteria any study of repression must meet to be considered proven, none of the many quoted studies have yet met that standard. The methodological flaws found by such fastidious scientists as Dr. Harrison Pope of Harvard Medical School in the cognitive studies cited by the authors cannot be ignored. Next, the authors find supportive evidence for repressed memory, too, in the biological science of memory, especially in new findings in the field of traumatic and emotional memory. In my book Spectral Evidence, I took their 96-page Harvard Law Review polemic against third party lawsuits to task as "the classic example of skillful co-opting of reputable science, social policy, and legal theory to make the political argument for recovered memory." However, their Judges' Journal piece reveals a shift in their strategy. In it, the authors' scientific defense of recovered memories has shrunk from the 20-plus pages it received in the Harvard Law Review to a few columns, reflecting a change in political realities: As the Daubert and Frye pre-trial hearings have generally proven unforgiving to recovered memories, the authors now try to avoid pre-trial tests which scrutinize the elaborate traumatic memory/dissociation theory currently being put forward as the favored scientific explanation for the memories. Although drawing on provocative research into hippocampal shutdown and PET scan studies, that theory founders on the fuzzy and elusive mechanism by which unconscious memories can be transformed into a reliable conscious account of real events -- a theory dismissed by unassailably credible memory scientists like Harvard's Daniel Schacter as "just speculation." Emerging in the Journal as their central argument is the thesis that recovered memory cases are not special &emdash; that they fall within the normal range of distortion, from totally or partly true to totally or partly false, and should not be tested as novel scientific theory in pre-trial hearings, but should be put before a jury like any other memory. This time, they focus more on anecdotal cases as proof that recovered memories exist, e.g. Ross Cheit and Marilyn Van Derbur, most of which can be explained, says Schacter, "within the normal rubric of remembering and forgetting." They simply ignore that the real issue is not the handful of apparently corroborated cases of readily-explained lost-and-found memories, but the epidemic of memories like Holly Ramona's for which respected agenda-free scientists such as Schacter, NYU's Joseph LeDoux and UC San Diego's Larry Squire can find no satisfactory explanation. Undeterred, the authors propose leapfrogging over Daubert and Frye and going directly to court: "We are no longer debating delayed recall of sexual abuse. Instead, judges must decide on a case-by-case basis." Bowman and Mertz's smokescreen must not obscure the profound difference between the commonplace "delayed recall" we all experience and the claims of massive amnesia for a singular experience (sexual abuse) and accurate retrieval which are at the heart of the memory wars. These "memories" have no more substance than Salem's mischievous spectral evidence until they have faced the crucible of scientific scrutiny. Finally, I am appalled by their argument against more third party suits. They are plain wrong in some of their comments on the Ramona case. Molien, the case that permitted Ramona into courts, was and is still the binding precedent in California. In arguing that permitting a third party suit was an aberration of California law, the authors' claim that Napa's court is liberal is "ludicrous -- pedagogical manure," scoffs a member of Napa's judiciary. Also uninformed and insensitive to the way the memory wars work is their proposal that, if efforts to communicate with his daughter failed, Ramona could have sued her for defamation. In fact, his repeated efforts to talk to his family were rebuffed; it was Holly who launched the hostilities and sued her father. And suing daughters is unlikely to lead to family healing, or to reform of dangerous therapeutic practices. By suing the therapists, Ramona achieved, with swift efficiency, several desirable social policy ends: it forced accountability on therapists and exposed the terrible damage done to individuals and families by trendy survivor strategies: confrontations, lawsuits, and alienation from family. If it is balance the authors seek, let them implement it in their own program for social justice. The callousnes of their statement in the Harvard Law Review &emdash; their cavalier disregard for the most rudimentary principles of justice &emdash; still haunts their argument against third party suits: "In light of the other remedies available to the person falsely accused, we conclude that the interests of the victims and therapists outweigh the alleged abuser's interests." Even though a jury named Holly's memories false, Gary Ramona's life, career, and reputation have been destroyed; the taint of perpetrator will haunt him forever. Though vindicated, he cannot be made whole. He deserved his day in court; society required it to quell the destructive power of suggestive therapy run amok and of young women free to hurl baseless accusations like thunderbolts from their pointed fingers. I recommend to Bowman and Mertz Increase Mather's much-quoted caution to the Salem witch trials: "It were better that ten suspected witches should escape than that one innocent person should be condemned."
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Columbia Journalism Review Lights a Firestorm | Reviews Get the Book
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