Appellant ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT BRIEF OF THE COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SJC NO. 10382 AC NO. 2007-P-0886
COMMONWEALTH OF MASSACHUSETTS, Appellee v. PAUL SHANLEY, LEADERSHIP COUNCIL AS AMICUS CURIAE
This Brief explains why Appellant’s position is wholly inaccurate regarding scientific acceptance of dissociative memory loss and why his Court’s determination that testimony on dissociative memory loss and recovery, from an otherwise qualified expert, is admissible without a Lanigan hearing, is correct. See Commonwealth v. Frangipane, 433 Mass. 527, 537-538 (2001)….
This brief provides important updated scientific and legal support further strengthening the Leadership Council’s position in that case. It should also be pointed out that the FMSF brief heavily relies on ad hominem arguments and false accusations of dishonesty and intentional misrepresentation….
That the brain can avoid conscious recall of traumatic information has long been recognized by the American Psychiatric Association and the professional mental health community. Indeed, it is explicitly described as a phenomenon in the 1994 Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, the main diagnostic manual used by psychiatrists and psychologists….
The term “dissociative amnesia” appears as follows in section 300.12 of the DSM-IV: Dissociative amnesia is characterized by an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness. This definition, alone, demonstrates that the concept of recovered memory is generally accepted in the relevant scientific community….
Although some argue that inclusion of a diagnosis in the DSM-IV is not evidence of its scientific validity, the development of the manual was carefully planned and was based on rigorous scientific standards….
The DSM further notes that “[t]he reported duration of the events for which there is amnesia may be minutes to years. . . . Some individuals with chronic amnesia may gradually begin to recall dissociated memories.”….
Dissociative amnesia is also recognized by the World Health
Organization in their inclusion of this disorder in the International Statistical Classification of Diseases and Related Health Problems 10th Revision (ICD-10, 2007). F44.0 Dissociative amnesia
The main feature is loss of memory, usually of important recent events, that is not due to organic mental disorder, and is too great to be explained by ordinary forgetfulness or fatigue. The amnesia is usually centred on traumatic events, such as accidents or unexpected bereavements, and is usually partial and selective.
The ICD-10 is the international standard diagnostic classification for all general epidemiological, many health management purposes, and clinical use….
Delayed recall of abuse memories was also recognized in the American Psychological Association’s Final Report from the Working Group on Investigation of Memories of Childhood Abuse….
FMSF board member Elizabeth Loftus participated in the working group. As the judge in a past case noted:
. . . even Dr. Loftus conceded upon cross-examination that the APA policy which she helped to create notes that “it is possible for memories of abuse that have been forgotten for a long time to be remembered . . .” The language of the APA report indicates that the challenge to recovered memories which is included therein concerns
the mechanism by which the delayed recall occurs, rather than the fact of its occurrence . . . Furthermore, Dr. Loftus acknowledged that dissociation from a traumatic event is a recognized phenomenon….
The most thoughtful report on recovered memories was issued by the British Psychological Society. British Psychological Society, Report by the Working Group on Recovered Memories (1995). After an investigation of the effect of trauma on memory, the Society concluded that “forgetting of certain kinds of trauma is often reported” for very different kinds of trauma ranging from war trauma to childhood sexual abuse. The report further concluded that the available evidence suggests that between one third and two thirds of abuse victims have periods of time when they “totally or partially forgot the abuse.”….
In summary, there is ample evidence that traumatic memory loss and recovery is accepted by the major scientific organizations representing mental health practitioners. This wealth of documentation and professional acknowledgment contrasts sharply with that for so called “false memory syndrome,” which, despite years of attention in the media, has failed to be supported by research and is not recognized as a valid diagnostic entity by any national or international health organization. Thus, those who argue against the mind’s ability to dissociate and later recover memories are in the minority….
In summary, not only is there is ample evidence that traumatic amnesia and recovery of memories is accepted by major scientific organizations, there is also strong support for the conclusion that dissociative amnesia is generally accepted among mental health practitioners. Thus evidence regarding traumatic amnesia and/or recovered memory is reliable and admissible in judicial proceedings….
It is notable that every single one of the studies specifically addressing the issue of substantial forgetting of childhood sexual abuse, researchers found that some sub-group within the sample reported either full or partial substantial forgetting for the childhood sexual abuse. Moreover, in Dr. Loftus’ own study of memories of sexual abuse, designed specifically to eliminate some of the flaws she identified in previous studies, 12% claimed to remember parts but not all of the abuse, while 19% claimed that they forgot the abuse for a period of time, and later the memory returned. Loftus, E. F., et al., Memories of Childhood Sexual Abuse: Remembering and Repressing 18 Psychol. of Women Q. 67 (1994)….
see comments by FMSF advisory board member Hollida Wakefield in a journal that advocates for pedophiles. Wakefield, Interview: Hollida Wakefield and Ralph Underwager, 3 Paidika: J. Paedophilia 12 (1993) (“It would be nice if someone could get some kind of big research grant to do a longitudinal study of let’s say, a hundred twelveyear-old boys in relationships with loving paedophiles”)….
Researchers are also beginning to study dissociative amnesia with sophisticated neuroimaging equipment. A recent study shows persuasive evidence that dissociative amnesia is associated with an altered pattern of neural activity which reverses with memory recovery. Kikuchi, H., Fujii, T., Abe, N., et al., Memory Repression: Brain Mechanisms Underlying Dissociative Amnesia, J Cogn Neurosci. (March 20, 2009) [Epub ahead of print]….
The researchers concluded, “Our findings provide direct evidence that memory repression in dissociative amnesia is associated with an altered pattern of neural activity, and they suggest the possibility that the pFC has an important role in inhibiting the activity of the hippocampus in memory repression.” Id. This study is particularly important as it provides significant biological proof of the existence of dissociative amnesia, thereby taking the debate out of the realm of pure psychological theory….
In summary, numerous studies looking at whether the brain can suffer dissociative memory loss regarding childhood sexual abuse have found that some sub-group within the sample reported either full or partial substantial forgetting for the events. No study that has specifically examined for evidence of memory loss in traumatized population samples has failed to sustain this finding, which has been confirmed by neuroimaging research and laboratory studies that show how people are able to suppress other types of unwanted information from entering their conscious mind. Simply put, the science is clear and overwhelming that dissociative amnesia is a recognized reaction to childhood sexual abuse and other traumas….
Research Indicates that Recovered Memories and Continuous Memories are of Equal Accuracy
The reliability of the information recalled after a period of forgetting has been documented in a number of carefully performed studies. These studies have found that, when subjected to independent corroboration, continuous memories and spontaneously recovered memories (like those recovered by the plaintiff in the current case) are of similar accuracy….
Even Elizabeth Loftus, outspoken advocate for defendants in cases involving traumatic memories, has opined that the Williams study validates the experience of child sexual abuse victims who report an inability to recall memories of the abuse until years after the abuse has ended. Bass, A., Study Finds Traumatic Memories Can Be Recovered, The Boston Globe (January 26, 1995)….
In another study, Elke Geraerts, a postdoctoral fellow at Harvard University, examined the validity of recovered memories by attempting to corroborate the memories through outside sources. Geraerts, E., Schooler, J.W., Merckelbach, H., et al., The Reality of Recovered Memories: Corroborating Continuous and Discontinuous Memories of Childhood Sexual Abuse, Psychological Science 564-568 (2007)….The researchers concluded that abuse memories that are spontaneously recovered may indeed be just as accurate as memories that have persisted since the time the incident took place….
Moreover, and contrary to claims that recovered memories are primarily the result of suggestive psychotherapy, most recovery of traumatic memories have been found to occur outside of therapy. In Wilsnack, S. C., et al.’s study of over 700 women, less than 2% of women with delayed recall reported remembering the abuse with the help of a therapist or other professional person. The vast majority of memories were recovered spontaneously in other contexts….
For example, after reviewing the literature, cognitive psychologists Lindsay and Read concluded: In our reading, scientific evidence has clear implications . . . . there are few grounds to doubt spontaneously recovered memories of common forms of CSA or recovered memories of details of never-forgotten abuse. Lindsay, D. S., & Read, J. D., “Memory Work” and Recovered Memories of Childhood
Sexual Abuse: Scientific Evidence and Public, Professional and Personal Issues, 1 Psychol., Public Policy & L. 846, 894 (1995)….
Testimony based on dissociative amnesia has gained widespread acceptance in courts across the United States. Many state and federal courts have addressed the reliability of delayed memory and related issues involving the statute of limitations. The majority of reported cases directly addressing this issue recognize the existence of the phenomenon of dissociative/traumatic amnesia and the related experience of delayed recovery of traumatic memories.