Ridicule or recourse: parents falsely accused of past sexual abuse fight back.

• Author: Whitesell, Jeffrey M.

1. Introduction II. Psychotherapy: Can These Memories be Trusted? III. Third Party Causes of Action Against

   Psychotherapists

   1. Malpractice and Negligence

   2. Infliction of Emotional Distress

   3. Defamation

   4. Loss of Companionship and Society.

   5. Breach of Contract IV. CONCLUSION

1. INTRODUCTION

   Gary Ramona was falsely accused of sexually molesting his twenty-three year-old daughter, Holly, when she was a child.(1) Unlike many accused of such acts, Gary Ramona fought back. On May 13, 1994, this former winery executive was awarded $500,000 by a California jury and, even more important, he gained vindication. Holly testified that between the ages of five and eight, her father repeatedly raped her.(2) She based these accusations solely on memories recovered during recent psychological therapy for bulimia.(3) She had not remembered any incidents of childhood sexual abuse until her therapists suggested that her bulimia was caused by past sexual abuse.(4) Subsequently, her therapist injected her with sodium amytal (truth serum), and while sedated, Holly accused her father of raping her when she was a child.(5) Her therapists assured her that it was impossible to fabricate stories while under sedation and actively encouraged her to confront her father.(6)

   Mr. Ramona strenuously denied these allegations by his daughter and her therapists. As a result of the allegations, his wife divorced him, his three teen-age daughters refused to speak to him, he was fired from his $500,000/year job, he lost fifteen pounds, and he was forced to sell the family's $3 million house.(7) Mr. Ramona claimed that Holly's therapists had implanted false memories in her mind and therefore were responsible for the injuries to his reputation and his family.(8) He contended that her therapists "suggested a link between bulimia and sexual abuse and had interpreted [Holly's] fleeting images as memories of incest."(9) Mr. Ramona sued Holly's therapists for malpractice.(10)

   Generally, a parent or other third party lacks standing to bring a malpractice claim against a health care provider.(11) However, in an unprecedented decision, the trial court permitted a California jury to find that the therapists breached their duty of care to Mr. Ramona when they treated Holly and encouraged her belief in her recovered memories.(12)

   This was the first successful malpractice case brought by a third party against a therapist in which the court found the therapist, who supposedly implanted the memories, responsible for the innocent party's monumental losses to his or her reputation, marriage, family life and career.(13) It was the first time that someone, other than a patient, successfully sued a therapist for the "increasingly controversial technique of recovered memory therapy"(14) Being labeled as a child abuser is "one of the most loathsome labels in society. . . ."(15) Even if the alleged sexual abuser is innocent, he cannot escape the social stigma of the accusation and its emotional and financial repercussions. Allowing suit and money damages does not rectify the problem. Mr. Ramona's loss was much more than $500,000 even in terms of economics. So, what purpose does allowing suit serve? Although it will not prevent all false claims and will not restore the integrity of the falsely accused, it will deter false implantation and encourage the innocent to fight back.

   In most circumstances, psychotherapy is an invaluable tool in the treatment of many mental disorders.(16) As the public began to realize the frequency of child sexual abuse, there was an increase in the reliance on recovered memory techniques to uncover memories of past sexual abuse.(17) In repressed memory cases, the use of psychotherapy and its techniques has brought about a new controversy regarding its reliability. "Researchers and therapists view the question of repressed memories from disparate vantage points, and with strong disagreements about the phenomena."(18) "[S]cience has simply not evolved to the point that it can give definite guidance in determining whether childhood sexual abuse has occurred in a particular instance."(19)

   Mental health professionals are divided on both sides of this controversy. One side argues that false memories occur frequently and that people are remembering what their therapists suggest to them. The other side argues that people cannot be made to recall sexual abuse that did not happen. Professor Elizabeth F. Loftus of the University of Washington contends that many of the reported cases of repression were the result of well intentioned but misdirected counselors planting the necessary seed in the minds of their patients.(20) Professor Loftus does not doubt the reality of all child abuse, but does doubt the memories that emerge in adulthood after extensive memory work.(21) She describes "memory work" as "therapeutic hypnosis or age regression or suggestive questioning or guided visualization or sexualized dream interpretation. . . ."(22) Professor Loftus claims "there's little science to support the idea that trauma that is regressed can return decades later in pristine form."(23) The key figure on the other side of this debate is Dr. Lenore Terr, a San Francisco psychiatrist and researcher who has worked for thirty years with battered and traumatized children.(24) According to Dr. Terr:

   [C]hildren who survive repeated and secret abuse often learn to put

   themselves in trance states during the rapes or the beatings. Afterward,

   they tell no one, not even themselves, what has happened, and some

   of their memories may never get transferred to the part of the brain

   where stories dwell.(25)

   In addition, Paul McHugh, chairman of the psychiatry department at Johns Hopkins University, says the issue of repressed memories "is the biggest story in psychiatry in a decade. It is a disaster for orthodox psychotherapists who are doing good work."(26) Professors Terr and Loftus' strong views on the subject have made them the most sought after witnesses in civil suits for damages resulting from childhood sexual abuse and more recently, as witnesses in civil suits against psychiatrists and other therapists accused of implanting false memories.

   Even though repressed memories in many cases may be true, the use of controversial and/or suggestive techniques increases the possibility of false accusations and memories. A nineteenth-century psychologist warned of the dangers inherent in the techniques used to recall partial memories: "Total forgetfulness is not serious; but partial forgetfulness is treacherous. . . . We are liable to fill in from our imagination and disjointed fragments furnished by memory. . . We unwittingly become creative artists. "(27)

   The increased frequency of false memory claims has sparked the development of various victim support groups and foundations. The False Memory Syndrome Foundation, an advocacy organization founded by accused parents three years ago, has heard from more than 13,000 people who claim to be victims of false accusations of sexual abuse.(28) Since its commencement, it has also heard from about 300 retractors, those who have recovered memories believed to be true only to later retract them as false and unreliable.(29) Between sixty and seventy percent of these retractors had initiated a lawsuit against their alleged abusers.(30)

   The term "false memory syndrome," coined by the foundation,(31) is "a condition in which a person's identity and relationships are centered around the memory of a traumatic experience which is objectively false but the person strongly believes it to be true."(32) Since the foundation began publicizing its belief that delayed memories of sexual abuse and incest were "too often a result of false memories caused by a disastrous 'therapeutic' program," the American Psychological Association, the American Medical Association and the American Psychiatric Association followed with statements of their uncertainty as to the validity of these recovered memories.(33) In 1993, the American Medical Association (AMA) warned against the use of nontraditional techniques to validate repressed memories.(34) Then in 1994, the AMA further stated that absent corroborating evidence, no completely accurate way of determining the validity of reports based on recovered memories exists.(35) In most false memory situations, the therapists fail to support their diagnosis with any such corroborating evidence. "Only a series of clinical studies on adult memories of confirmed incidents of childhood abuse will resolve the false-memory controversy."(36)

   The term "false memory" is defined as "a strongly imagined memory, a totally distorted memory, a he, or a misconstrued impression."(37) "False memory" has also been used to describe the allegations in lawsuits by former patients and their parents against psychotherapists who utilize controversial and/or suggestive techniques that, critics claim, permit the therapist to implant false memories of childhood sexual and physical abuse in the patient's mind.(38) Claims of implanted ritual abuse, 'baby breeding and animal sacrifice, robes and distant places" have been common in these cases.(39) Other claims have included being forced to consume a human penis or the flesh of a newborn infant.(40) Another patient claimed that she had wires inserted into her ankles "rendering her incapable of wearing 'any other shoes but Birkenstocks.'"(41) Still other patients have been "induced to believe they had children when they were 8 years old, things that are physiologically impossible."(42) There exists little scientific evidence to support the theory that complete repression of memory can occur.(43)

   In addition, self-help books can have the same suggestive effect.(44) The most controversial and best-selling of these self-help books is "The Courage to Heal" by Ellen Bass and Laura Davis which is often considered to be the bible of the recovered-memory movement.(45) "The Courage to Heal" advises...