Recovered Memories of Alleged Sexual Abuse: an Analysis of the Theory of Repressed Memories Under the Washington Rules of Evidence
| Publication year | 1994 |
TABLE OF CONTENTS
Prelude .................................................... 52
I. Introduction.......................................... 54
II. History of Repressed Memory Claims of Childhood Sexual Abuse in Washington.......................... 56
A.
B. RCW 4.16.340. Actions Based on Childhood Sexual Abuse............................................ 58
III. The Debate Within the Scientific Community.......... 60
A. The Memories are Accurate....................... 60
B. The Memories are False........................... 63
IV. The Applicable Standard of Admissibility:
A. The
B.
C. Division I's Refusal to Follow the Washington Supreme Court's Lead:
1. Contrary to Division I's assertion, the courts of Washington have discussed and applied the
2. Contrary to Division I's assertion, the Washington Supreme Court has adequately supported its application of the
3. Contrary to Division I's assertion, the Washington Supreme Court has never drawn a distinction between criminal and civil cases in determining the applicability of novel scientific evidence...................................... 72
D. The
V. Admissibility Under Washington Rule of Evidence 703 . 75
A. Qualifications of Expert........................... 76
B. Expert Testimony is Helpful to the Trier of Fact...... 77
VI. Examples of the
A. Battered Woman Syndrome ....................... 78
B. Battered Child Syndrome.......................... 79
C. Rape Trauma Syndrome........................... 80
D. Hypnotically Aided Testimony.................... 82
VII. How the Washington Supreme Court's Previous Frye
Analyses May Help to Determine the Admissibility of "Repressed Memory" Evidence........................ 84
A. Recognized Phenomenon or Questionable Means of Identifying Victims? .............................. 85
B. Explanation of Phenomenon Helpful to the Trier of Fact?............................................. 85
C. Therapeutic Device Only or Corroborated Recall?... 86
D. Opinion of Guilt? ................................ 87
E. Sufficiently Reliable Means of Enhancing Recall or Susceptible to Influence and Distortion?............ 87
F. Victims Incompetent to Testify?.................... 89
G. Battle of Experts?................................. 89
VIII. Conclusion........................................... 90
The problems began shortly after the birth of her first child: depression, crying jags brought on by little annoyances, inexplicable feelings of guilt, a feeling that she no longer belonged in her body, and periods of compulsive over-eating.(fn1) Jill no longer wanted her husband to touch her and was overcome with feelings of repulsion whenever he initiated intimate contact.
Determined to overcome these problems, Jill began therapy. After a number of sessions, Jill's therapist asked if she had ever been sexually abused as a child. Jill was shocked and angered by the suggestion; she came from a "good" family. Her parents were upper middle class, college educated, and active in their community. Jill remembered family picnics, Christmas dinners, and backyard football games. Generally, she felt feelings of love and security when she recalled her childhood. Jill and her siblings had completed their college educations and were now married, with children of their own.(fn2)
The more Jill attempted to deny the suggestion that she had been abused, however, the more she was convinced that her therapist's suggestion might explain her inability to function properly. She read "The Courage to Heal,"(fn3) a book recommended by her therapist. She was profoundly struck by the following passages:
Jill returned to her therapist and shortly thereafter, she began having nightmares involving a shadowy male figure. Jill would waken with a feeling of having been sexually threatened. The figure soon took on the face of her father and, with the help of her therapist, Jill began to recall a period of abuse spanning at least five years, from the time she was two years old until her seventh birthday. Her therapist encouraged her to confront her father, convincing Jill that her healing process could not begin until her father acknowledged that he had abused her.
The confrontation served only to alienate her parents and siblings, who responded to Jill's accusations with shocked disbelief. Jill's husband claimed he did not know who she was any more, and Jill contemplated suicide on more than one occasion.
Convinced that her memories were true, but with no other corroborating evidence, Jill brought a civil action against her father. She was convinced that she could put her life back together only after her father acknowledged what he had done to her and had taken responsibility for his actions.
Jill alleges that the trauma of the sexual abuse caused her to completely repress memory of the abuse and that she was unable to connect the abuse to any injury until her memory was restored through therapy. Jill is now 30 years old. Additionally, Jill alleges that her father's acts have caused her severe emotional distress and injury, including depression, anxiety, and suicidal tendencies. Jill's father has denied the allegations.
I. Introduction
One can hardly pick up a magazine or newspaper or turn on the television without reading or hearing about claims of repressed memories. A fifty-one year old man in Redwood City, California, was recently convicted of a murder that occurred over twenty years ago. The critical evidence against him was provided by his daughter who, for over twenty years, had repressed the memory of witnessing the murder.(fn8) In 1991, Roseanne Barr Arnold announced that her mother abused her from the time she was an infant until she was six or seven years old and that her memories had suddenly returned after having been repressed since her childhood.(fn9) Similarly, former Miss America Marilyn Van Derbur publicly stated that her father had sexually abused her and that she had repressed any knowledge of it until she was twenty-four years old.(fn10)
More recently, a thirty-four year old man claimed that Chicago's Roman Catholic Cardinal Joseph Bernardin sexually abused him when he was a seventeen year old seminary student and that he had repressed the memory of the abuse for seventeen years.(fn11) Paul McHugh, Director of the Department of Psychiatry and Behavioral Sciences at Johns Hopkins Medical Institution in Baltimore, receives approximately one telephone call per day from attorneys wanting to discuss a repressed -memory case. McHugh believes this issue has grown to epidemic proportions.(fn12)
Civil litigation by adults claiming recovered memories has increased sharply over recent years following changes in statutes of limitation, parental immunity laws, redefinition of the term "negligence," and the differentiation between "intentional infliction of injury" and "intentional act."(fn13)
The rise in reported sexual abuse cases has created an intense desire for scientific verification as to how people recall past sexual abuse.(fn14) Meanwhile, the scientific community has split into opposing camps hotly debating the validity of repressed memories. At this time, it appears that the legal community cannot rely with any certainty upon the validity of these types of claims absent agreement among the scientific community.
This Comment explores whether testimony regarding repressed memories is admissible under Washington rules of evidence. This Comment concludes that the process of repression and accurate recall of memories has not been proven to be a sufficiently reliable and trustworthy phenomenon to justify admission of evidence that abuse occurred.
Section II of this Comment sets forth the historical and legal background of civil lawsuits claiming repressed memories of childhood sexual abuse in the State of Washington. Section III of this Comment describes the debate within the scientific community over whether memories can be...
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