Therapists' liability to the falsely accused for inducing illusory memories of childhood sexual abuse - current remedies and a proposed statute.

Author:Finer, Joel Jay
 
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A father hired a private investigator after his [adult] daughter reportedly uncovered a repressed memory and accused him of incest. The investigator [visited] the therapist complaining [of] nightmares and trouble sleeping. On the third visit, the therapist told [her] that she was an incest survivor. `She [said] I could not remember because my brain had blocked the memory that was too painful to deal with.'

She read the list of symptoms of incest survivors, [shook] her head yes as if this was confirmation of her diagnosis. She recommended incest survivor groups. In the fourth session, the diagnosis of probable incest victim was confirmed [based on] "classic symptoms" of body memory and sleep disorders. Men [I claimed] no memory of such events, the therapist assured me that this was often the case.(2)

  1. INTRODUCTION

  2. RECOVERED MEMORY: CURRENT LITIGATION

    1. Suits By Survivors of Childhood Sexual Abuse

    2. Suits By Patients Against Therapists

    3. Suits By Accused Child Molesters Against

    Therapists

  3. DEVASTATING IMPACT OF FALSE ACCUSATIONS

  4. PREMISES OF RECOVERED MEMORY THERAPY

  5. REPRESSION AND MEMORY RECOVERY

    1. Input/Perception

    2. Storage

    3. Retrieval/Recall

  6. RISKING INDUCEMENT OF FALSE MEMORIES OF ABUSE

    1. Untenable Diagnostic Assumptions of Recovered

      Memory Therapy

    2. Suggestive Aspects of Recovered Memory Therapy

      1. Situational Factors

      2. Hypersuggestive Practices

      a. Hypnosis and Drugs

      b. Guided Imagery and Visualization

      c. Use of "Support" Groups

      d. Communications by Therapist

    3. Inducement of Illusory Memories

  7. THE BOWMAN & MERTZ/(HARVARD LAW REVIEW)

    THESIS

  8. UNDUE SUGGESTIVENESS IN OTHER AREAS OF THE LAW

  9. ANALYSIS OF LEGAL DOCTRINE

    1. Physicians' Duties to Third Parties

      1. Tarasoff

      2. Communicable Diseases

      3. Other Duties to Third Parties

    2. Negligent Infliction of Emotional Distress

    3. Reckless Infliction/Tort of Outrage

    4. Defamation

    5. Other Arguably Relevant Doctrines

      1. Informed Consent

      2. Harm to Family

      3. Contract

  10. THE CONCEPT OF DUTY

    1. Foreseeability of Harm to Plaintiff

    2. Degree of Certainty that Plaintiff Suffered Injury

    3. Proximity of the Injury to the Conduct

    4. The Moral Blame Attached to the Defendant's

      Conduct

    5. The Policy of Preventing Future Harm

    6. The Extent of the Burden to the Defendant and

      Consequences to the Community of Imposing

      Liability

  11. REASONS FOR PROPOSED LEGISLATION

  12. AVOIDING A CHILLING EFFECT ON TREATMENT OF POSSIBLE

    ABUSE-SURVIVORS

    1. Leaving Room for Ordinary Error

    2. Desirability of a Bright Line Rule

  13. PROPOSED STATUTE

  14. COMMENTARY ON PROPOSED STATUTE

  15. SOME EVIDENTIARY CONSIDERATIONS

  16. INTRODUCTION

    No issue in law and psychiatry has engendered such controversy as the current debate over whether experiences of childhood sexual abuse (CSA) are subject to repression for decades and eventually "recoverable" in therapy long after the event.(3) One principal legal issue has been whether such "recovery" justifies the application of the "recent discovery" basis for tolling the statute of limitations, an issue which becomes significant when an adult psychotherapy patient sues her ostensible molester (often her father or other family member).

    When these actions first reached the courts, many jurisdictions accepted the claim that the experience of childhood sexual victimization was subject to repression and subsequently recoverable in reliable detail decades later. Soon after these suits were entertained, highly credentialed and widely respected scholars and researchers questioned certain premises of the repressed memory/ recovered memory school. Some questions that have been raised are: a) whether there is a process of repression that removes early traumatic experiences from conscious awareness; b) whether the experiences remain relatively intact in the untapped repressed memory or are subject to unconscious revision and distortion over the years (confabulation); and c) whether such memories can be recovered years later in therapy or, on the other hand, the suggestive techniques used in some therapies are likely to create illusory memories of CSA.

    In view of the emerging scholarly questions, courts have begun to push the pendulum in the other direction, and are increasingly declining to accept recovered memory claims as a basis of tolling statutes of limitations.(4)

    Legal actions have also been brought against therapists by persons accused of child molesting by adult patients.(5) These suits have challenged the concept of repression, contending that the therapist, by use of hypersuggestive techniques such as hypnosis and guided imagery, induced pseudomemories of childhood abuse in the minds of the accusing patients.

    While sexual abuse of children has always been a real and horrific phenomenon(6) (a fact unrecognized until relatively recently), the issue this Article will explore is whether, and under what circumstances, a person wrongly accused has, or should have, one or more causes of action against a therapist for culpably inducing the pseudomemory.(7) To refine and make more rational legal actions by persons falsely accused of childhood sexual molestation (arguably justified under existing legal doctrine), this Article will propose specific legislation authorizing a lawsuit under codified circumstances and conditions.

    The recommended statutory provisions authorize a lawsuit where gross and irresponsibly hypersuggestive techniques and verbalizations are utilized by a therapist, techniques that create substantial risks of inducing specious memories and false accusations of odious sexual crimes purportedly committed by the plaintiff. Liability would not be imposed for ordinary negligence. Nor would it be imposed where the patient presented with some memories of CSA. Certain screening devices are proposed to prevent a non-meritorious suit going forward even to pre-trial discovery stages. Additional devices including in-camera examination of materials are designed to protect the privilege of confidentiality to the extent appropriate. Finally, in any suit by a person claiming to be falsely accused, the therapist may prevail, not only if the plaintiff fails; to prove the charges, but also if the therapist can establish that the plaintiff was indeed culpable of CSA.

    It is important to note at the start, that applying the recommended remedial principles (principles of justice for a wrongly accused person and a shattered family) should have very little, if any, effect on the very important work of providing treatment for actual victims of childhood incest. The vast majority of victims either have always realized that they were victims or at least have fragmentary memories of sexual victimization when they enter therapy. Where the accusing patient is in one of those categories from the start of therapy, no lawsuit is authorized against the therapist under the principles and rules set out below.

  17. RECOVERED MEMORY: CURRENT LITIGATION

    1. Suits by Survivors of Childhood Sexual Abuse

      As noted above, in recent years, courts have permitted lawsuits claiming CSA to be brought years after the occurrence of the alleged abuse. The threshold issue has been whether to treat the statute of limitations as having run or as having been tolled during a period where the experience of abusive behavior was "repressed" in the memory. A number of courts permitting such suits have utilized the "delayed discovery" exception to the statute of limitations. Such courts hold that, since the plaintiff did not discover her injury(8) until she recovered her memory, often in the course of psychotherapy, the statute of limitation did not begin to run until such recovery.(9)

      Courts permitting actions on the theory of discovery analogize to the "delayed discovery" rule as it operates in medical malpractice, product liability, and like cases. A patient who was unaware that sponges were left in his body cavity during surgery fifteen years earlier, and learns of it for the first time during present surgery, is not barred by the statute of limitations. So, too, it is said that the patient in therapy had no awareness of the child abuse until the repressed memory emerged in therapy. Often, these repressed memories ostensibly come to light during hypnosis or when other suggestive techniques are employed which create a substantial risk of inducing "false memories."(10)

      Over half of the states have enacted or amended legislation since the mid 1980s, addressing, and usually lengthening, statutes of limitations, as well as dealing with other issues regarding CSA claims.(11) The latest wave of legislation tends to embody provisions designed to protect against frivolous or fraudulent claims, provisions for example, requiring corroboration,(12) pre-trial certificates of merit,(13) and at least preliminary shielding of the identity of the accused defendant.(14)

      As the number of CSA suits multiplied, and as scholars and researchers gave some of the issues their attention, books were published warning of the dangers of accepting "repressed" memory claims.(15) The significant concerns were: a) the uncertainty regarding the phenomenon of repression; and b) the extremely suggestive techniques utilized by some incest survivor therapists. The scholars expressed considerable worry that apparent memories of abuse could be false or illusory.

      As doubts were expressed about the authenticity and reliability of "recovered memories" of CSA, and as earlier and recent research came to judicial attention, courts increasing expressed concerns about reliability, and began requiring corroborating evidence,(16) and admitting expert testimony.(17)

      Courts and individual judges have been more explicitly questioning the reliability of claims of "recovered memory."(18) For example, the Tennessee Court of Appeals observed:

      we find that there is simply too much indecision in the scientific

      community as to the credibility of repressed memory. In general,

      psychologists have not come to an agreement as to whether repressed

      memories may be accurately...

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