Judge Edward F. Harrington
Presentation by Jim Hopper, Ph.D.
Some notes on the presented text of Judge Harrington's decision:
The text is just over eight double-spaced pages - a fairly quick read Underlines in the original are represented in the text like this: _underlined words_ There are two versions of the text on this page: one in normal type, the other small The legal documentation citation is: 923 Federal Supplement 286 (D. Mass. 1996)
Some notable quotes from the decision:
"The factors to be considered when deciding if proffered testimony is valid 'scientific knowledge,' and therefore reliable, are. . ." (p.3)
"After considering these factors, this Court finds that the reliability of the phenomenon of repressed memory has been established, and therefore, will permit the plaintiff to introduce evidence which relates to the plaintiff's recovered memories" (p.3).
"In brief, Dr. van der Kolk testified that repressed memories is not a scientific controversy, but merely a political and forensic one" (p.5).
"Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, 1994), which is a widely used manual by psychiatrists to define mental diagnostic categories and is published by the American Psychiatric Association, also recognizes the concept of repressed memories" (p.7).
Final paragraph: "It is important to stress that, in considering the admissibility of repressed memory evidence, it is not the role of the Court to rule on the credibility of this individual plaintiff's memories, but rather on the validity of the theory itself. For the foregoing reasons, the Court hereby denies the Defendant's Motion in Limine to Exclude Repressed Memory Evidence. For the law to reject a diagnostic category generally accepted by those who practice the art and science of psychiatry would be folly. Rules of law are not petrified in the past but flow with the current of expanding knowledge" (p.9).
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
ANN SHAHZADE, )
Plaintiff )
) CIVIL ACTION NO.:
v. ) 92-12139-EFH
)
GEORGE GREGORY, )
Defendant. )
______________________________)
_MEMORANDUM AND ORDER_
May 8, 1996
HARRINGTON, D.J.
This matter is before the Court on the Defendant's Motion in Limine to Exclude
Repressed Memory Evidence. The defendant in this case is Dr. George Gregory, the
plaintiff is Ann Shahzade, the defendant's cousin. For the reasons set forth below, the
Court hereby denies the defendant's motion.
The plaintiff in this case alleges repeated episodes of non-consensual sexual
touching of her by the defendant from 1940 to 1945, more than forty-seven years prior
to her filing a complaint. The plaintiff was between the ages of approximately twelve
and seventeen at this time; the defendant is approximately five years her senior. The
plaintiff claims that these episodes had been completely blocked out and that she had
no memory of them until she recovered so-called "repressed memories" of these
touchings during psychotherapy in November of 1990. The defendant admits to some
degree of sexual activity between himself and the plaintiff, but there is a dispute with
regard to the nature and extent of such activity. The plaintiff now wants to introduce
evidence relating to these alleged repressed memories.
[- 1 -]
When a proffered scientific theory is beyond the general understanding of a
jury, in order to introduce evidence relating to this theory, an individual must rely on
expert testimony as to the validity of the theory. _See United States v. Montas_, 41 F.3d
775, 783 (1st Cir. 1994). The proposed expert must qualify as an expert and must
offer testimony relating to reliable scientific knowledge. _Daubert v. Merrell Dow
Pharmaceuticals, Inc._, 113 S.Ct. 2786, 2796 (1993). The Court acknowledges the
appropriateness of an expert in this type of case and concludes that the plaintiff's
expert, Dr. Bessel van der Kolk, is not only qualified as an expert in the field of
memory, but that he is one of the country's most renowned psychiatrists in this
specialty. 1 For the following reasons, the Court finds the subject matter, repressed
memory syndrome, to be reliable and therefore admissible.
Under Rule 702 of the Federal Rules of Evidence, in order for evidence to be
admissible, the trial court must conclude that "any and all scientific testimony...is
not only relevant, but reliable." _Daubert_, 113 S.Ct. at 2795. The reliability standard is
grounded in Rule 702's requirement that an expert's testimony relate to "scientific
knowledge." _Daubert_, 113 S.Ct. at 2790. To qualify as "scientific," the theory must
be grounded in the methods and procedures of science. _Daubert_, 113 S.Ct. at 2795.
To qualify as "knowledge," the testimony must be more than subjective belief or
________________________
1 Dr. van der Kolk is currently an Associate Professor of Psychiatry at Harvard
Medical School and the Chief of the Trauma Clinic at Massachusetts General Hospital.
He has gained international recognition in the field of trauma and memory and is on
the Board of Directors for the International Society for Traumatic Stress Studies. Dr.
van der Kolk has published many articles on the topic and he is currently writing his
fourth book, _Memory, Trauma and the Integration of Experience_.
- 2 -
unsupported speculation. _Daubert_, 113 S.Ct. at 2795. In addition, "in order to qualify
as 'scientific knowledge,' an inference or assertion must be derived by the scientific
method." _Daubert_, 113 S.Ct. at 2795. In cases dealing with scientific evidence,
reliability is based upon scientific validity. _Daubert_, 113 S.Ct. at 2795, n.9. The
Supreme Court in _Daubert_ set forth several criteria which should be considered when
determining "whether the reasoning or methodology underlying the testimony is
scientifically valid...." _Daubert_, 113 S.Ct. at 2796. The factors to be considered
when deciding if proffered testimony is valid "scientific knowledge," and therefore
reliable, are (1) whether the theory has been tested; (2) whether the theory has been
subjected to peer review and publication; (3) the theory's known or potential rate of
error; and (4) whether the theory has attained general acceptance within the relevant
scientific community. _Daubert_, 113 S.Ct. at 2796-97. After considering these factors,
this Court finds that the reliability of the phenomenon of repressed memory has been
established, and therefore, will permit the plaintiff to introduce evidence which relates
to the plaintiff's recovered memories.
In a case raising the same issue, _Isely v. Capuchin Province_, 877 F.Supp. 1055
(E.D. Mich. 1995), the court stated that in order to introduce repressed memory
evidence, a witness must "testify as to whether that theory can be, or has been, tested
or corroborated and, if so, by whom and under what circumstances; whether the
theory has been proven out or not proven out under clinical tests or some other
accepted procedure for bearing it out; and whether the theory has been subjected to
other types of peer review.... Obviously this part of this foundational element will
- 3 -
include testimony as to whether or not the theory of repressed memory is widely
accepted in the field of psychology." _Isely_, 877 F.Supp. at 1064.
Dr. van der Kolk's testimony sufficiently satisfies these foundational factors. Dr.
van der Kolk discussed in detail several studies which focused on the concept of
repressed memories and ultimately, through their findings, serve to validate the
theory.2 One such study, which Dr. van der Kolk referred to as the Herman and
Schatzow study, looked at victims of sexual abuse and found that only approximately
one-third of the victims remembered all the details of the abuse. Another one-third
of the victims had a partial memory of the abuse, while the final one-third
remembered nothing relating to the abuse. Dr. van der Kolk stated that these figures
represent "the sort of figures that every study comes in, regardless of what the
methodology is..." (Tr.45-46; April 9, 1996).
A study conducted by Linda Meyer Williams, which Dr. van der Kolk referred to
as "the best study on all of this," (Tr. 52; April 9, 1996) further validates the theory of
repressed memories. As a graduate student in psychology at the University of
Pennsylvania from 1973 to 1975, Ms. Williams did her doctoral dissertation on
sexually abused children who had been treated at the Philadelphia Children's Hospital.
She conducted extensive interviews with young women who had been sexually abused,
and her dissertation detailed the experiences which they had undergone. Seventeen
years later, as a research psychologist, Ms. Williams reinterviewed patients who had
_________________
2 See Plaintiff's Exhibit 3, Trauma and Memory, for a detailed analysis of several
experimental studies done on memory performance in traumatized and non-
traumatized populations.
- 4 -
been the subject of her dissertation to see what impact the earlier sexual abuse had on
their later life. She was able to locate about half of her original subjects, and after
reinterviewing them, she found that thirty-eight percent of her patients no longer
remembered the abuse.
Dr. van der Kolk further testified that the majority of _clinical_ psychiatrists
recognize the theory of repressed memories and do not find the _theory_ itself
controversial. He further stated that this is not "a new craze among American
_psychiatrists_... this is a very old issue in psychiatry." (Tr. 32; April 9, 1996). The
issue only became controversial when studies on the issue of repressed memories of
_sexual abuse_, as opposed to repressed memories of natural traumatic events or
wartime incidents, began to surface. People began to say, "You're full of
nonsense. This doesn't happen." (Tr. 42, April 9, 1996). In brief, Dr. van der Kolk
testified that repressed memories is not a scientific controversy, but merely a political
and forensic one.
Dr. van der Kolk stated that currently the major detractors of the theory are so-
called outsiders, "psychologists who do not treat traumatized patients." (Tr. 24, April
9, 1996). Although the defendant's expert, Dr. Bodkin, was a clinical psychiatrist, he
does not specialize in the field of memory. Nor do his credentials and expertise in the
area of memory compare with those of Dr. van der Kolk. Furthermore, Dr. Bodkin did
not claim that the theory of repressed memory was invalid, he merely stated that, in
his opinion, the 52 studies relating to repressed memories which he critiqued
- 5 -
contained methodological deficiencies and therefore could not serve to validate the
theory.
According to the expert who testified in _Isely_, the only controversy among the
majority of _clinical_ psychiatrists with respect to the issue of repressed memory "is
specifically in the area of elicitation of repressed memories, not with the concept
itself." _Isely_, 877 F.Supp. at 1065-66. Dr. van der Kolk expanded on this point in
recognizing that some memories may not be accurate. "I think there has always been
controversies about whether people can trust a patient still. And, particularly, people
have always been concerned whether when people tell them something that happened
maybe a long time ago that suddenly comes up, whether you can really believe what
people, what people tell you." (Tr. 16, April 10, 1996). "Translating [a] sensation into
a story is still subject to ordinary human distortions that we all are capable of... So
at the end, just like every other story you hear, you take your subjective self and
eventually you decide what you believe - whether you believe what people tell you is
true or not, it's how we all make up our minds. So at the end, there is really no
scientific proof whether something is true or not unless there is independent
corroboration, unless there was somebody there taking a movie."3 (Tr. 69-70; April 9,
1996). The testimony of the defendant's second expert, Dr. Ofshe, supported this
point. The elicitation and accuracy of the recovered memory itself, however, is not
the issue currently before the Court. The Court must decide if the _theory_ itself is
__________________
3 The defendant admits to some degree of sexual activity between himself and the
plaintiff.
- 6 -
valid. Dr. Ofshe's testimony did not directly address this issue. It must be also noted
that Dr. Ofshe is not a clinical psychiatrist, but rather a doctor of Social Psychology.
The American Psychiatric Association, which is the major professional
association for psychiatrists in America, recognizes the theory of repressed memories
and believes it to be very common among people who have experienced severe
trauma. In an official statement by the American Psychiatric Association relating to
memories of sexual abuse, the Association stated that "Children and adolescents who
have been abused cope with trauma by using a variety of coping mechanisms. In some
instances these coping mechanisms result in a lack of conscious awareness of the abuse
for varying periods of time. Conscious thoughts and feelings stemming from the abuse
may emerge at a later date." (See Plaintiff's Exhibit 2, Statement on Memories of
Sexual Abuse).
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, 1994), which is
a widely used manual by psychiatrists to define mental diagnostic categories and is
published by the American Psychiatric Association, also recognizes the concept of
repressed memories. The term "Dissociative Amnesia," however, is the true technical
psychiatric or medical term for the theory and is the term used when defining the
condition in the manual. Repressed memories is the popular term. The two terms
were used interchangeably in the hearing. The manual states that "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." (DSM-IV at 477). "Dissociative Amnesia can be distinguished
- 7 -
from normal gaps in memory by the intermittent and involuntary nature of the inability
to recall and by the presence of significant distress or impairment." (DSM-IV at 481).
The manual goes on to state that "Dissociative Amnesia most commonly presents as a
retrospectively reported gap or series of gaps in recall for aspects of the individual's
life history. These gaps are usually related to traumatic or extremely stressful events."
(DSM-IV at 478). Particularly relevant to the issue presently before the Court, the
manual recognizes that "In recent years in the United States, there has been an
increase in reported cases of Dissociative Amnesia that involves previously forgotten
early childhood traumas." (DSM-IV at 479). The manual lists criteria used in
diagnosing Dissociative Amnesia: (1) one or more episodes of memory loss relating to
a traumatic personal experience which is too extensive to be ordinary forgetfulness;
(2) The disturbance does not happen exclusively while the person is suffering from a
psychiatric disorder or other general medical condition; (3) The symptoms cause
significant distress in important areas of functioning. (DSM-IV at 481). The fact that
Dissociative Amnesia is included and discussed in such depth within the DSM-IV is
significant, and, speaking as a member of the Psychiatric Association, Dr.
van der Kolk said that listing Dissociative Amnesia in DSM-IV "means that at this point
in time we recognize that [Dissociative Amnesia] exists." (Tr. 37; April 9, 1996).
Based on the evidence and testimony of Dr. van der Kolk, the Court finds that
the plaintiff has satisfied the four foundational factors which are to be considered,
although not independently determinative, in order to introduce evidence relating to
repressed memories. The plaintiff has presented sufficient evidence through both Dr.
- 8 -
van der Kolk's testimony and various submissions to the Court that (1) the theory has
been the subject of various tests; (2) the _theory_ has been subjected to peer-review and
publication; (3) that repressed memory, as is true with ordinary memories, "cannot be
tested empirically," and may not always be accurate, however, the theory itself has
been established to be valid through various studies. _Isely_, 877 F.-Supp. at 1065; and
(4) the theory has attained general acceptance within the relevant scientific
community, namely, that of clinical psychiatrists.
It is important to stress that, in considering the admissibility of repressed
memory evidence, it is not the role of the Court to rule on the credibility of this
individual plaintiff's memories, but rather on the validity of the theory itself. For the
foregoing reasons, the Court hereby denies the Defendant's Motion in Limine to
Exclude Repressed Memory Evidence. For the law to reject a diagnostic category
generally accepted by those who practice the art and science of psychiatry would be
folly. Rules of law are not petrified in the past but flow with the current of expanding
knowledge.
SO ORDERED.
_______________________
EDWARD F. HARRINGTON
United States District Judge
- 9 -
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
ANN SHAHZADE, )
Plaintiff )
) CIVIL ACTION NO.:
v. ) 92-12139-EFH
)
GEORGE GREGORY, )
Defendant. )
______________________________)
_MEMORANDUM AND ORDER_
May 8, 1996
HARRINGTON, D.J.
This matter is before the Court on the Defendant's Motion in Limine to Exclude
Repressed Memory Evidence. The defendant in this case is Dr. George Gregory, the
plaintiff is Ann Shahzade, the defendant's cousin. For the reasons set forth below, the
Court hereby denies the defendant's motion.
The plaintiff in this case alleges repeated episodes of non-consensual sexual
touching of her by the defendant from 1940 to 1945, more than forty-seven years prior
to her filing a complaint. The plaintiff was between the ages of approximately twelve
and seventeen at this time; the defendant is approximately five years her senior. The
plaintiff claims that these episodes had been completely blocked out and that she had
no memory of them until she recovered so-called "repressed memories" of these
touchings during psychotherapy in November of 1990. The defendant admits to some
degree of sexual activity between himself and the plaintiff, but there is a dispute with
regard to the nature and extent of such activity. The plaintiff now wants to introduce
evidence relating to these alleged repressed memories.
[- 1 -]
When a proffered scientific theory is beyond the general understanding of a
jury, in order to introduce evidence relating to this theory, an individual must rely on
expert testimony as to the validity of the theory. _See United States v. Montas_, 41 F.3d
775, 783 (1st Cir. 1994). The proposed expert must qualify as an expert and must
offer testimony relating to reliable scientific knowledge. _Daubert v. Merrell Dow
Pharmaceuticals, Inc._, 113 S.Ct. 2786, 2796 (1993). The Court acknowledges the
appropriateness of an expert in this type of case and concludes that the plaintiff's
expert, Dr. Bessel van der Kolk, is not only qualified as an expert in the field of
memory, but that he is one of the country's most renowned psychiatrists in this
specialty. 1 For the following reasons, the Court finds the subject matter, repressed
memory syndrome, to be reliable and therefore admissible.
Under Rule 702 of the Federal Rules of Evidence, in order for evidence to be
admissible, the trial court must conclude that "any and all scientific testimony...is
not only relevant, but reliable." _Daubert_, 113 S.Ct. at 2795. The reliability standard is
grounded in Rule 702's requirement that an expert's testimony relate to "scientific
knowledge." _Daubert_, 113 S.Ct. at 2790. To qualify as "scientific," the theory must
be grounded in the methods and procedures of science. _Daubert_, 113 S.Ct. at 2795.
To qualify as "knowledge," the testimony must be more than subjective belief or
________________________
1 Dr. van der Kolk is currently an Associate Professor of Psychiatry at Harvard
Medical School and the Chief of the Trauma Clinic at Massachusetts General Hospital.
He has gained international recognition in the field of trauma and memory and is on
the Board of Directors for the International Society for Traumatic Stress Studies. Dr.
van der Kolk has published many articles on the topic and he is currently writing his
fourth book, _Memory, Trauma and the Integration of Experience_.
- 2 -
unsupported speculation. _Daubert_, 113 S.Ct. at 2795. In addition, "in order to qualify
as 'scientific knowledge,' an inference or assertion must be derived by the scientific
method." _Daubert_, 113 S.Ct. at 2795. In cases dealing with scientific evidence,
reliability is based upon scientific validity. _Daubert_, 113 S.Ct. at 2795, n.9. The
Supreme Court in _Daubert_ set forth several criteria which should be considered when
determining "whether the reasoning or methodology underlying the testimony is
scientifically valid...." _Daubert_, 113 S.Ct. at 2796. The factors to be considered
when deciding if proffered testimony is valid "scientific knowledge," and therefore
reliable, are (1) whether the theory has been tested; (2) whether the theory has been
subjected to peer review and publication; (3) the theory's known or potential rate of
error; and (4) whether the theory has attained general acceptance within the relevant
scientific community. _Daubert_, 113 S.Ct. at 2796-97. After considering these factors,
this Court finds that the reliability of the phenomenon of repressed memory has been
established, and therefore, will permit the plaintiff to introduce evidence which relates
to the plaintiff's recovered memories.
In a case raising the same issue, _Isely v. Capuchin Province_, 877 F.Supp. 1055
(E.D. Mich. 1995), the court stated that in order to introduce repressed memory
evidence, a witness must "testify as to whether that theory can be, or has been, tested
or corroborated and, if so, by whom and under what circumstances; whether the
theory has been proven out or not proven out under clinical tests or some other
accepted procedure for bearing it out; and whether the theory has been subjected to
other types of peer review.... Obviously this part of this foundational element will
- 3 -
include testimony as to whether or not the theory of repressed memory is widely
accepted in the field of psychology." _Isely_, 877 F.Supp. at 1064.
Dr. van der Kolk's testimony sufficiently satisfies these foundational factors. Dr.
van der Kolk discussed in detail several studies which focused on the concept of
repressed memories and ultimately, through their findings, serve to validate the
theory.2 One such study, which Dr. van der Kolk referred to as the Herman and
Schatzow study, looked at victims of sexual abuse and found that only approximately
one-third of the victims remembered all the details of the abuse. Another one-third
of the victims had a partial memory of the abuse, while the final one-third
remembered nothing relating to the abuse. Dr. van der Kolk stated that these figures
represent "the sort of figures that every study comes in, regardless of what the
methodology is..." (Tr.45-46; April 9, 1996).
A study conducted by Linda Meyer Williams, which Dr. van der Kolk referred to
as "the best study on all of this," (Tr. 52; April 9, 1996) further validates the theory of
repressed memories. As a graduate student in psychology at the University of
Pennsylvania from 1973 to 1975, Ms. Williams did her doctoral dissertation on
sexually abused children who had been treated at the Philadelphia Children's Hospital.
She conducted extensive interviews with young women who had been sexually abused,
and her dissertation detailed the experiences which they had undergone. Seventeen
years later, as a research psychologist, Ms. Williams reinterviewed patients who had
_________________
2 See Plaintiff's Exhibit 3, Trauma and Memory, for a detailed analysis of several
experimental studies done on memory performance in traumatized and non-
traumatized populations.
- 4 -
been the subject of her dissertation to see what impact the earlier sexual abuse had on
their later life. She was able to locate about half of her original subjects, and after
reinterviewing them, she found that thirty-eight percent of her patients no longer
remembered the abuse.
Dr. van der Kolk further testified that the majority of _clinical_ psychiatrists
recognize the theory of repressed memories and do not find the _theory_ itself
controversial. He further stated that this is not "a new craze among American
_psychiatrists_... this is a very old issue in psychiatry." (Tr. 32; April 9, 1996). The
issue only became controversial when studies on the issue of repressed memories of
_sexual abuse_, as opposed to repressed memories of natural traumatic events or
wartime incidents, began to surface. People began to say, "You're full of
nonsense. This doesn't happen." (Tr. 42, April 9, 1996). In brief, Dr. van der Kolk
testified that repressed memories is not a scientific controversy, but merely a political
and forensic one.
Dr. van der Kolk stated that currently the major detractors of the theory are so-
called outsiders, "psychologists who do not treat traumatized patients." (Tr. 24, April
9, 1996). Although the defendant's expert, Dr. Bodkin, was a clinical psychiatrist, he
does not specialize in the field of memory. Nor do his credentials and expertise in the
area of memory compare with those of Dr. van der Kolk. Furthermore, Dr. Bodkin did
not claim that the theory of repressed memory was invalid, he merely stated that, in
his opinion, the 52 studies relating to repressed memories which he critiqued
- 5 -
contained methodological deficiencies and therefore could not serve to validate the
theory.
According to the expert who testified in _Isely_, the only controversy among the
majority of _clinical_ psychiatrists with respect to the issue of repressed memory "is
specifically in the area of elicitation of repressed memories, not with the concept
itself." _Isely_, 877 F.Supp. at 1065-66. Dr. van der Kolk expanded on this point in
recognizing that some memories may not be accurate. "I think there has always been
controversies about whether people can trust a patient still. And, particularly, people
have always been concerned whether when people tell them something that happened
maybe a long time ago that suddenly comes up, whether you can really believe what
people, what people tell you." (Tr. 16, April 10, 1996). "Translating [a] sensation into
a story is still subject to ordinary human distortions that we all are capable of... So
at the end, just like every other story you hear, you take your subjective self and
eventually you decide what you believe - whether you believe what people tell you is
true or not, it's how we all make up our minds. So at the end, there is really no
scientific proof whether something is true or not unless there is independent
corroboration, unless there was somebody there taking a movie."3 (Tr. 69-70; April 9,
1996). The testimony of the defendant's second expert, Dr. Ofshe, supported this
point. The elicitation and accuracy of the recovered memory itself, however, is not
the issue currently before the Court. The Court must decide if the _theory_ itself is
__________________
3 The defendant admits to some degree of sexual activity between himself and the
plaintiff.
- 6 -
valid. Dr. Ofshe's testimony did not directly address this issue. It must be also noted
that Dr. Ofshe is not a clinical psychiatrist, but rather a doctor of Social Psychology.
The American Psychiatric Association, which is the major professional
association for psychiatrists in America, recognizes the theory of repressed memories
and believes it to be very common among people who have experienced severe
trauma. In an official statement by the American Psychiatric Association relating to
memories of sexual abuse, the Association stated that "Children and adolescents who
have been abused cope with trauma by using a variety of coping mechanisms. In some
instances these coping mechanisms result in a lack of conscious awareness of the abuse
for varying periods of time. Conscious thoughts and feelings stemming from the abuse
may emerge at a later date." (See Plaintiff's Exhibit 2, Statement on Memories of
Sexual Abuse).
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, 1994), which is
a widely used manual by psychiatrists to define mental diagnostic categories and is
published by the American Psychiatric Association, also recognizes the concept of
repressed memories. The term "Dissociative Amnesia," however, is the true technical
psychiatric or medical term for the theory and is the term used when defining the
condition in the manual. Repressed memories is the popular term. The two terms
were used interchangeably in the hearing. The manual states that "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." (DSM-IV at 477). "Dissociative Amnesia can be distinguished
- 7 -
from normal gaps in memory by the intermittent and involuntary nature of the inability
to recall and by the presence of significant distress or impairment." (DSM-IV at 481).
The manual goes on to state that "Dissociative Amnesia most commonly presents as a
retrospectively reported gap or series of gaps in recall for aspects of the individual's
life history. These gaps are usually related to traumatic or extremely stressful events."
(DSM-IV at 478). Particularly relevant to the issue presently before the Court, the
manual recognizes that "In recent years in the United States, there has been an
increase in reported cases of Dissociative Amnesia that involves previously forgotten
early childhood traumas." (DSM-IV at 479). The manual lists criteria used in
diagnosing Dissociative Amnesia: (1) one or more episodes of memory loss relating to
a traumatic personal experience which is too extensive to be ordinary forgetfulness;
(2) The disturbance does not happen exclusively while the person is suffering from a
psychiatric disorder or other general medical condition; (3) The symptoms cause
significant distress in important areas of functioning. (DSM-IV at 481). The fact that
Dissociative Amnesia is included and discussed in such depth within the DSM-IV is
significant, and, speaking as a member of the Psychiatric Association, Dr.
van der Kolk said that listing Dissociative Amnesia in DSM-IV "means that at this point
in time we recognize that [Dissociative Amnesia] exists." (Tr. 37; April 9, 1996).
Based on the evidence and testimony of Dr. van der Kolk, the Court finds that
the plaintiff has satisfied the four foundational factors which are to be considered,
although not independently determinative, in order to introduce evidence relating to
repressed memories. The plaintiff has presented sufficient evidence through both Dr.
- 8 -
van der Kolk's testimony and various submissions to the Court that (1) the theory has
been the subject of various tests; (2) the _theory_ has been subjected to peer-review and
publication; (3) that repressed memory, as is true with ordinary memories, "cannot be
tested empirically," and may not always be accurate, however, the theory itself has
been established to be valid through various studies. _Isely_, 877 F.-Supp. at 1065; and
(4) the theory has attained general acceptance within the relevant scientific
community, namely, that of clinical psychiatrists.
It is important to stress that, in considering the admissibility of repressed
memory evidence, it is not the role of the Court to rule on the credibility of this
individual plaintiff's memories, but rather on the validity of the theory itself. For the
foregoing reasons, the Court hereby denies the Defendant's Motion in Limine to
Exclude Repressed Memory Evidence. For the law to reject a diagnostic category
generally accepted by those who practice the art and science of psychiatry would be
folly. Rules of law are not petrified in the past but flow with the current of expanding
knowledge.
SO ORDERED.
_______________________
EDWARD F. HARRINGTON
United States District Judge
- 9 -
This page is maintained by Jim Hopper, Ph.D., as are these related pages:
Recovered Memories of Sexual Abuse: Scientific Research & Scholarly Resources
Child Abuse: Statistics, Research, and Resources
Sexual Abuse of Males: Prevalence, Lasting Effects, and Resources
Factors in the Cycle of Violence - Abused Boys, Gender Socialization, and Violent Men