The Validity of Recovered Memory:
Decision of a US District Court

Judge Edward F. Harrington

Presentation by Jim Hopper, Ph.D.


For more evidence and understanding, please see my page
Recovered Memories of Sexual Abuse: Scientific Research & Scholarly Resources

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).

  • small text, this page

                                 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 -
    


    For more evidence and understanding, please see my page
    Recovered Memories of Sexual Abuse: Scientific Research & Scholarly Resources

    
                                 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
    
    
    
    
    
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    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


    Jim Hopper
    www.jimhopper.com
    last revised 8/22/96