Law, Memory, and the Memory Wars

Our system of law entitles those accused of a crime to be judged by a jury of peers. Jury members are often asked to make judgments of the veracity of various witnesses’ recollections of events. Two issues must be considered: is the witness being truthful, and are the recollections of the witness accurate. People have much experience in dealing with those who would seek to deceive them and might feel comfortable in making a judgment as to whether or not truth is being told, but what about the accuracy of memory? What guidance do ordinary people have in assessing whether or not a person’s memories might be accurate?

Alison Winter has produced an excellent discussion of these issues in her book Memory: Fragments of a Modern History. She provides a history of the various fads and beliefs regarding memory that have come and gone over the past century. Two contending views of memory have battled for supremacy over the years. One view has it that:

"....in principle one is capable of remembering every scrap of experience—such as the shape of a crack in the ceiling in the bedroom where you slept when you were five....This kind of claim has in fact been a theme of many of the projects discussed....It is no less present now."

Not everyone can recover these memories on demand, but there were always those who claimed to be able to assist in recalling these inaccessible experiences using hypnosis, drugs, psychoanalysis, or combinations of all three.

The opposing school of thought viewed memory as a complex phenomenon highly subject to conscious and, more importantly, subconscious biases and mechanisms that confounded any claim to accuracy. These people liked to use the term "confabulation" to describe the process in the context of legal proceedings.

."Confabulation was a psychoanalytic term dating back to the early years of psychoanalysis, referring to a process that knitted memories of past experiences together with fantasies or suggestions to form an imaginative construction that appeared to be a memory. In this context it meant a constructive, imaginative filling-in-the-blanks in which incoming suggestions from an interlocutor played a key role."

Winter does not come out and declare a winner between these two views, but she presents a sequence of confrontations between the two in which the latter view always seems to come out the victor. Given the important role memory can play in legal proceedings it is not surprising that the battle between these two sides was often waged in that arena.

This struggle for dominance reached an apex in the 1980s and 1990s when a rash of claims by adults of "repressed" memories of childhood sexual abuse, usually by parents, emerged as an important legal issue. One view of memory supported the accuser, the other supported the accused. In such an emotionally-charged context the confrontation was intense and came to be referred to as "the memory wars."

A typical case might involve a woman in her twenties or thirties who had no memory of such a childhood experience until it suddenly emerged in adulthood. The construct that supported the validity of such recovered memories emerged from considerations of posttraumatic stress disorder (PTSD). In these cases, the traumatic memories were supposedly suppressed or consciously rejected and stored in a "disassociated" form until brought back to consciousness at a later date when recall was triggered in some way.

As more people came forward with similar stories of sexual abuse, this phenomenon acquired the trappings of a medical disease. Support groups were formed. Diagnoses and cures were proposed. A political dimension was added as feminist groups got involved and described these cases as the outcome of a patriarchal society.

The net effect was to provide a great deal of publicity and to suggest to other women that such an instance of abuse could have happened to them even though they could not remember it at the time. Psychologists and psychoanalysts began to claim that such suppressed memories had specific physical manifestations in later life. Eating disorders became a convenient choice as a symptom that a therapist could use to pursue a connection to parental abuse as a child.

The heart-rending stories that emerged elicited much sympathy for the presumed victims. They were encouraged to confront their parents and even take legal action against them as a means of bringing their therapy to a conclusion. Needless to say, the courts had a problem dealing with these suddenly-appearing memories of past events.

Statutes of limitation originally limited most opportunities to seek legal punishment for the abusive parent. The growing number of cases and the sympathy aroused by the victims generated public pressure to provide a path for redress. The courts have wisely been conservative in the face of unusual feats of memory. Eventually, many states modified legal codes to allow memories of long past abuse to be entered as evidence in civil cases, but only if they were of the recently-recalled variety.

This tortuous logic prohibited those adults with a definite and continuous memory from access to the courts, but provided a path for those who claimed only a recent recollection. Courts also usually assume that old memories are less reliable than fresh memories. This legal reasoning implicitly acquiesced to the controversial notion that repressed memories were somehow equivalent to fresh memories as if they had been kept stored in some safe container for all those years.

As the number of women who claimed abuse grew dramatically, those who doubted the validity of such memories became more alarmed. Certainly, such cases were not impossible, but the possibility that they were generated by the power of suggestion seemed the more likely explanation. Organizing for opposition was difficult because to cast doubt was often interpreted as an attack on a helpless victim.

Eventually the accused began to fight back. Peter and Pamela Freyd found themselves suddenly estranged from an adult daughter who accused Peter of having sexually abused her as a child. They convinced themselves that the accusation could not be true, and concluded that if this could be happening to them, then it could also be happening to others. They responded by forming an organization that was intended to provide the exact counter to the ever more prevalent recovered memory syndrome. They called their organization the False Memory Syndrome Foundation (FMSF). It became active in the early 1990s. The memory wars were on!

FMSF formed support groups, encouraged other accused to share their stories with each other and publicly, and provided a rallying point for specialists who were dubious of recovered memories and were interested in research that would demonstrate the ways by which false memories could be generated. Since memory is something about which everyone has an opinion, and popular conceptions were important in fashioning legal standards, their cause also took on the features of a public relations campaign. The idea was to wage the battle on the same platforms where recovered memory syndrome had received public blessing years earlier.

There was a legal aspect to the FMSF strategy, and it turned out to be a very effective one. Those who believed themselves to have been falsely accused were encouraged to countersue—not only against their own children, but also against the therapists who had treated their children.

A famous case, and a turning point in the memory wars, involved Gary Ramona who had been accused of incest by his daughter.

"Holly Ramona had been treated by psychotherapist Marche Isabella in 1989. Isabella gave Ramona the old truth drug sodium amytal in order to recover memories of suspected abuse. After the memories returned, Holly Ramona decided to sue her father. The initial suit was unsuccessful, but this was not the end of the matter. The accusations cost Ramona his marriage, his job, and his reputation. He blamed her therapist. In 1991 he brought suit against Isabella and her medical center, alleging that their irresponsible treatment of his daughter had injured him."

Such third-party suits are difficult to win. Ramona had an advantage in that the therapist’s records concerning his daughter had already been made publically accessible in the course of his daughter’s suit against him.

The jury ruled in Ramona’s favor and held the therapist liable. They were uncomfortable with the fact that Holly Ramona went to a therapist looking for help with bulimia and depression and ended up being guided towards a diagnosis of childhood incest. Isabella defended her actions by claiming that bulimia and depression were the body’s response to childhood incest and she was merely following where the symptoms led her.

Isabella was being guided by an unproven assumption which she had no need to justify. Her only responsibility was to her patient. The result of Ramona’s victory in court was to radically alter the terms of engagement for therapists.

"....it was assumed that psychotherapists did not have formal obligations to the wider world surrounding their clients. The Ramona decision asserted that they did. It was now impossible to separate the individual biography being developed in the consulting room from the collective memory of the family, or indeed the broader collective memory of the patient’s wider community. The ruling legitimized a popular assumption that all these kinds of memory must align before their representation of the past could be considered ‘true.’ And if they did not, the therapist could be held responsible for injuries."

More cases like that of Ramona were to come. Public, legal, and scientific opinions were beginning to shift.

"In 1993 the American Medical Association declared that recovered memories were ‘of uncertain authenticity’ and needed ‘external verification.’ The American Psychiatric Association warned that it was impossible to distinguish false memories from true ones."

The combination of a less welcoming public response to claims of victimhood and a more risky environment for therapists led to a calming of what some had described as "mass hysteria."

"In the late 1990s, repressed memory syndrome was in disgrace. Therapists struggled to defend themselves as parents sued them for damages. Survivors who had once found it comforting and energizing to speak out publicly now felt isolated. Indeed, while professional false memory proponents continued to be outspoken, it became all but impossible to connect with survivor communities. These communities—or at least individual survivors and probably informal networks of mutual support—still exist, but they are reclusive. It seems that the memory wars ended, and that false memory won."

The false memory believers won, but surely it must feel a bit of a hollow victory. Given that all things are possible, it is likely that there are some valid victims of childhood sexual abuse who are now denied even the sympathy that society would accord them. "Victory" may merely mean that society has moved from one extreme to another.

The lesson to be learned from the memory wars is that memory is unreliable, and it is easily manipulated.

If one takes the admonition of the American Psychiatric Association at face value, no individual’s memory can be verified as being "true" in a court of law. Yet, decisions of life and death are being based on such judgments. It is difficult to see how society can proceed without making such decisions, but it should be able to proceed is if under the assumption that any legal decision might be proven wrong. The elusiveness and unreliability of memory would seem to make the death penalty unwise, if not absurd.

Winter’s book begins with the story of a man who confessed to murder under questioning by police. He continued to profess his guilt even though there were twelve people who provided an alibi for him that indicated he could not have committed the crime—another example of false memory syndrome. His case is not unique. If even confessions of guilt are not to be trusted, the legal system has a responsibility to recognize that fact.

Why make an irreversible decision if you don’t have to?