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The Journal of Psychiatry & Law/Fall 1993
By John G. Watkins, Ph. D.
Memories of child abuse have frequently been uncovered during psychotherapy by clinicians using hypnosis and other procedures. Experimentalists, working in laboratories, have discovered that such memories can be false. Individuals accused of abuse have cited these studies in their defense. Courts are placed in conflict as to whether testimony based on such memories should be admitted into evidence. The controversy is reviewed here, and suggestions are made as to how research might contribute to the retrieval of memories with greater veridicality.
In his early work Freud believed he had discovered that sexual seduction in childhood was the cause of hysterical symptoms in grown women. In 1897, he rescinded this conclusion by reporting that such seductions had not actually happened, but were childhood "fantasies." 1 This problem has again become most acute in recent times with the increasing recognition of the incidence of child abuse, as reported by many therapists in cases of dissociation and other disorders. 2 Court decisions have been issued requiring that abuse and hazards to third parties when discovered must be reported. 3
This requirement (which varies greatly from state to state) has confronted therapists with a no-win dilemma. For example, suppose within the treatment of a multiple personality patient the therapist learns that a destructive alter has been abusing the patient's children, sexually or otherwise. By law in some states the therapist should report this abuse to legal authorities. However, other alters within the patient's personality are nurturing and loving of the children, often providing the only support received by the children within a dysfunctional family. If the therapist does not report the abuse, he/she is in danger of running afoul of the law. If the abuse is reported, the children may be removed from the home, with the resulting loss of the supporting care that the patient does provide the children and the breakup of another severely impaired although still functioning home. Sometimes, the removal of the children may even be the added stress on the MPD mother that precipitates a suicide, with all the long range consequences to the whole family.
The above problem is now compounded by the publication of considerable experimental data to the effect that the "memories" and reports of child abuse discovered in therapy may quite possibly be "false memories," as claimed by Freud.
Recently, adult children, reporting the recall of early memories, have been confronting their parents and charging them in court with child abuse. 4 Parents have labeled these accusations as false, and experimental findings regarding "false memories" have been cited in court as a defense. 5 Therapists have been accused of creating "pseudo-memories" through suggestion, hypnotic or otherwise. 6, 7
The entire situation is no-win, not only to many patients and their therapists, but also to the parents and families of these patients. On the one hand, should parents not be held accountable for abuse, even though perpetrated many years ago? On the other hand, what if parents are falsely accused by their children and humiliated in public court actions, while
the offspring are awarded damages for implied behavior of which the parents are not guilty? This controversy at the present time is quite acute, pitting children against parents and therapists against experimental researchers.
It is in the interests of society that justice be done between parents and children and that families that have enjoyed acceptable, if not harmonious, relationships in the past not be disrupted by new legal battles involving accusations, denials and counter-accusations. Therapists must also be protected when treating abused individuals, and research should seek truths that can improve constructive interventions in treatment. This is a dilemma confronting courts today.
There have been many recent reports of "Satanic" cult abuse during the recalled childhood of MPD patients, accompanied by considerable discussion as to how to treat them. 8 Since the data for such statements rest largely on clinical findings that have emerged in the confidentiality of the treatment office, to which the average person and the legal profession are not generally privy, there have been doubts among the public as to the reality of these accusations, especially since we do not want to believe such horrors. Both law enforcement officers and some clinicians 9 have challenged the extent of their reality.
The validity of therapeutic procedures has come under question, especially the use of hypnosis in the gathering of memories, and some jurisdictions (such as California) have ruled that hypnotically elicited memories cannot be used in court. 10
Courts in other states followed California, including Arizona, Maryland, Michigan, Minnesota and Nebraska. 11
Some recent rulings do permit such memories, but under restricted conditions. 12, 13, 14, 15 Courts have long held that observations based on procedures accepted and employed by a profession in general can be reported in expert testimony. 16 This
ruling has recently been liberalized and superseded by a Supreme Court ruling. 17 Unfortunately, certain procedures (hypnosis and various other psychological methods) are accepted by some members of the psychological disciplines and rejected by others. Thus battles of "the experts" occur in courts.
Science enjoys considerable prestige these days. Psychological reports based on "laboratory findings" carry much weight with courts. They appear to be more objective and verifiable than clinical opinions, which must rely so much on the knowledge and skill of a therapist. Courts like to be able to make clean-cut decisions, and laboratory studies lend themselves to this. The weight of such studies has shown the undependability of hypnotically elicited memories and their vulnerability to suggestive influence -- and, in fact, the vulnerability of all memories, hypnotic or otherwise.
Other contributors 18 have challenged the "scientific" objectivity on which many of these laboratory studies are based and the fact that "laboratory" results may not be applicable or even relevant to the clinical treatment situation. Researchers run the risk that their "findings" will be proved invalid by other investigators, but they are not threatened with the possibilities of failing to help patients, malpractice suits, and suicides. Therapists are much more at risk than researchers in the present controversy. Their livelihoods and entire careers can be at stake.
Although some parents may be falsely accused, it is not in the interest of society that therapists be discouraged from helping suffering patients who recall memories of abuse during their treatment. The actual number of falsely accused parents is likely to be far fewer than the number of abused children.
Abusive parents, however, may be highly respected members of the community and active churchgoers. Even after the discovery of remembered abuse, patients are reluctant to con-
front such parents, in court or otherwise. If they do, they are usually called "liars." Standing forth and claiming abuse is an ordeal that few patients are willing to endure.
Therapists have often contributed to the present controversy. First, it must be conceded that patients, desperately needing approval and support, are especially vulnerable to suggestive influence from their doctors. Therapists, who are very aware of the prevalence and perniciousness of child abuse, may at times "push" their clients to recall such incidents. To the extent to which they do, they are not practicing sound therapeutic techniques.
Granted that abused patients are often very fearful of recalling and reporting such abuse, the therapist must still not suggest it, but patiently provide the trusting and supportive conditions that facilitate the patient's discovery, release and report. Certainly part of the controversy today is the fault of overeager therapists who have too suggestively championed the possibility of child abuse. This is especially true in the treatment of MPD conditions, 19 which have almost always been found to be rooted in child abuse. 20
Since hypnotized patients are particularly suggestible, therapists who use this treatment modality must be especially circumspect to avoid instilling false memories. Procedures that would minimize this likelihood have been published by Orne. 21 They have been employed by the FBI and have received court recognition. 22
Another source of difficulty has been the belief of some therapists that patients can get well only if they "confront the abuser." To a certain extent this is true, but the source that is keeping the patient suffering today is seldom the actual abuser of childhood. The abuser is probably now an elderly person who no longer lives with or has power over the patient. In fact, confrontation with that real person of today may be very counterproductive to the patient. The likely
response is a denial, and perhaps a renewal of doubt about the reality of the abuse in the mind of the patient. The decision whether to confront the abuser directly in person or in court should be made by the victim only after a full consideration of all possible consequences, and without any suggestion or pressure from the therapist.
If a potential abuser is accused and subsequently denies it when confronted, there is a limited number of possibilities:
1. The abuse did not occur. The accusation is false, and the accuser is deliberately lying.
2. The accusation is false but is based upon pseudo-memory, fantasy, or confabulation within the accuser, and without volitional intent.
3. The abuse actually occurred, but the abuser is knowingly lying when denying it. No great scientific evidence is necessary to convince courts and law enforcement officers that culprits frequently lie.
4. The accusation is partly true, based on an incomplete veridical memory that has been elaborated by some fantasy or through contamination by some other memory from a different but similar situation.
5. The abuse did occur, but the perpetrator has simply forgotten it. We commonly forget actions after many years have elapsed, especially if the remembering would reinstate a feeling of guilt.
6. The process of "normal" forgetting may well have been carried further, into the actual defense of "repression." The fact of the process of repression, contrary to assertions by some researchers, 23 has been well supported, not only by the weight of thousands of patients in analytic therapies over the past 70 years, but also by solid experimental laboratory findings. 24, 25
7. The abuser, like the victim, may have also dissociated memories of the abuse. Dissociation often runs in families. Destructive alters in the abuser may have inflicted violent abuse on the child without the awareness of the abuser's primary ego state. The primary state of the abuser, on resuming the "executive" position, may indeed include no recollection of the destructive alter's behavior because of the amnestic barrier between them. In this case the abuser would not be consciously "lying" when denying the abuse.
Any or all of the above can figure in the denial of culpability by an accused "abuser." Each has a good psychological rationale for its possibility. This brings us back as to whether confronting the abuser directly in the here and now is in the best interests of the patient. Monetary compensation from a suit (other than to pay for treatment) seldom compensates for the suffering such abuse has caused. Sometimes it causes more disruption to a partially functioning family, with severe consequences to the patient.
Furthermore, the revealing of memories of abuse in therapy is not without hazard to the therapist. 26 These usually emerge only after much resistance, since the amnesia for them through dissociation has been a long-term defense of the patient. Their disclosure frequently causes the patient great distress. Sometimes the patient then turns against the therapist. Comstock and Vickery 27 have reported an increase in suits and destructive "acting out" by patients toward their therapists, especially when unresolved negative transferences have been activated through the patient's discomfort in recalling the abuse. These possibilities demand the utmost of the therapist in regard to maturity, integrity, incorruptibility and commitment to the patient. Even this may not be sufficient to counter the mischief of malevolent alters in MPD cases. 28
However, confronting the abuser may be a sound therapeutic procedure if it is recognized that it is not primarily the elderly
real individual of today who is causing the patient's continuing pain (depression, anxiety, psychosomatic symptoms, dissociation, etc.). It is the much younger "internalized representation" of that abuser from yesterday. This problem can and should be resolved therapeutically within the therapist's office. In fact, if the patient is to be freed of the past, it is essential that this internal therapeutic confrontation be undertaken, whether or not an external one takes place.
Therapists should restrict themselves to the psychotherapeutic treatment of the patient and not try to be legal counselors. The problem occurred in the past. For relief of suffering the patient must resolve it in a reliving of the past through a therapeutic regression, hypnotic or otherwise. 29
The mistreatment was not mastered by the abused child of the past. The patient must now, with the added ego strength of the therapist, be induced to reexperience the abusive events, followed by a "confrontation" with the "abuser's representation" and a mastering of that abuser. The patient thereby gets his/her power back and no longer needs to be the helpless victim of a malevolent ego state, introjected and dissociated for sheer survival at the time of the abuse.
The accusations of self-guilt, so often reiterated as "I'm to blame for what Daddy did to me," represent the unresolved influence (and introjected voice) of that abuser and a continuing source of the patient's misery. It is there, in the unconscious "then" -- not in the conscious, legal "here and now" -- that the therapist can help the patient. If that fact were more realized and practiced by therapists, there would be much less possibility of "false memory" and "false suits," and the current professional conflict between researchers and therapists would be ameliorated. Those who treat should restrict themselves to therapy. It is the "experiential" truth that helps patients.
The job of researchers and forensic examiners, however, is to try to discover "veridical truth." Such truth is especially necessary for witnesses in the courtroom, but academic experimenters should not engage in second-guessing therapists regarding treatment under conditions that may be very different from those in the scientific laboratory.
When therapists and their patients attempt to prove "veridical truth" to laypeople in the courtroom, they are likely to be met by judges and juries who would like to "shove the whole mess under the rug," since the purported memories, having arisen in the privacy of the doctor's office, represent events of long ago and are the result of procedures (perhaps psychoanalytic or hypnotic) that are widely misunderstood and distrusted. They are usually not verifiable externally.
This popular distrust of therapeutic procedures is fostered and further nurtured by reports of laboratory studies that attack their validity. Society would prefer to deny or ignore such horrors, and the courtroom then becomes a battleground between family members (as well as judges and juries), who are often split concerning whom to believe.
It is natural for therapists to empathize with their clients and through resonance to understand them emotionally. If they treat them only as objects (as one can do with experimental subjects), then they would not be good therapists. Unlike researchers, therapists must constantly be concerned with trust, understanding, problems of transference and countertransference, and their own natural tendency to believe (and to transmit that willingness to believe) to their patients. If they did not, they could never gain the position of trust that enables the patient to reveal, confront and resolve the terrors involved in early childhood abuse.
However, the same willingness to believe and to resonate with patients is also a source of difficulty. A therapist can overresonate, become an "advocate for the defense" and thus
accept and champion false memories and false beliefs. The therapist, with "one foot" resonating within the patient's internal milieu, must be certain that the "other foot" is firmly planted in reality if the patient is to be helped to cross that gulf and emerge as a mature and reality-oriented individual. 30 It is precisely the failure of some practitioners to maintain this balance that has lent weight to the accusations that they uncritically accept and promote "false memories."
The discipline of therapy will not be advanced by simply ignoring or challenging accusations of overzealous bias, since some of them may well be true. Therapists must strive for objectivity in their clinical reports, while still recognizing that "experiential reality" can be therapeutically helpful to the patient even when not objectively verifiable.
Therapists' treatment missions often require them to question research findings to the to extent to which these were derived primarily from the conscious, cognitive behavior of college students who were not emotionally ill, but who had volunteered for controlled (often artificially contrived) laboratory studies. However, when this "experiential reality" in the treatment situation cannot be verified by "objective reality," therapists can expect that their testimony will be challenged in court.
The public (including jury members) must be fully informed about the wealth of clinical observations over decades involving patient memory, and the therapeutic results that have been secured through their application, in spite of laboratory studies to the contrary. The observations of several thousand practitioners over many years should carry at least equal weight with the conclusions of a handful of laboratory studies, many of which do not meet the "scientific" criteria, the sampling, the design, the freedom from bias, etc., to which all researchers should aspire. Even as clinicians are often blind to their own therapeutic zeal, leading them to accept patient
memories uncritically and ignore their own possible suggestive influence, researchers too have their personal scotoma.
In the university, great significance is ascribed to the experimental method as the "sine qua non" for the discovery and validation of "fact." Salaries and promotions of researchers are based largely on that position. They practice a nomothetic science involving highly controlled, isolated factors, objectively evaluated on few criteria and analyzed mathematically. They tend to discount findings derived from more subjective observations of patients (idiographic science) on a wide range of (less well controlled) criteria.
We must not forget that many of the great truths of science were first revealed by direct (anecdotal) observation, such as Darwin's origin of species or the discoveries of archaeologists. Galileo's discovery of the moons of Jupiter used no laboratory methods, but involved simple, direct eye observations through a primitive telescope. And in psychology, Freud has been more quoted than any other investigator. His monumental discovery of unconscious processes resulted almost exclusively from direct observation. While Freud has been shown to be wrong in many ways, there is today a considerable body of experimental studies validating many facets of his work. 31, 32 Thousands of patients have benefited by his observations. Moreover, fruitful research hypotheses have often been initiated by the relatively uncontrolled observations of a gifted practitioner.
While clinicians need to be familiar with recent research and understand the limitations of generalizations based upon small samples, experimentalists need to understand what is meant by recovered memories in the treatment situation. These "memories" are very different from the unemotional, conscious, cognitive verbalized responses of subjects in a laboratory. In therapy, they are often highly emotionalized cries for help that are remembered not only cognitively and verbally, but behaviorally, perceptually, and affectively.
A patient in the clinic who is recalling a traumatic memory often appears to be responding in every cell of his/her body to the most severe abuse and terror. The patient's suffering can be so acute as to defy an explanation based on simple confabulation or fantasy creation without genuine cause. While cognitive details of "the memory" may change somewhat the general form, the content and meaning of the reexperiencing are often very prolonged and repeatable. These are the kinds of experiences therapists commonly observe, real traumas suffered by real people. Such experiences are seldom observed in the academic laboratory. Try and tell the screaming, writhing patient during an abreaction that his memory is only a "false confabulation" or to "quit putting on an act."
The "hypnotized research subject" may not be the same as the "hypnotized patient" to whom the experimental findings are supposed to apply. Significant differences between "hypnotized" and "non-hypnotized" groups have been claimed simply because of a differential score on a single "hypnotic susceptibility test" of 12 items, such as the Harvard Susceptibility Scale 33 or the Stanford Scales. 34 These items in no way compare with the behaviors of patients in intensive therapy who have spent hours fighting, sweating through, and finally involving themselves in a painful reliving of childhood traumas.
Another source of experimental bias inheres in "the person" of the researcher. Correctly demanding that forensic examiners using hypnosis should record all contacts with witnesses by videotape to avoid suggestive contaminations, experimentalists seldom tape-record their own recruiting of volunteers or their own "hypnotic" inductions from first contact to end.
Workers in hypnosis tend to be bimodal in their attitude toward hypnotic phenomena. They are usually either "skeptical" or "credulous." 35, 36 Academic researchers are more likely than therapists to be skeptical. Clinicians who are not gener-
ally believers shouldn't be therapists working with patients. Skeptics criticize believers for lack of controls and suggestive influence on patients, but researchers themselves rarely control for the suggestive possibilities of their own skeptical attitudes. Experimenter influence has been well documented in the Rosenthal effect. 37 Negative suggestibility can be as subtle and powerful as positive suggestibility.
Nor, in spite of the recent studies on ego states, hidden observers, 38 and
dissociation in normal individuals, 39 has there been any consideration as to
whether a subject at one time in an experiment is being "controlled" by the same
personality segment as in another. Furthermore, sampling studies, although seeming to meet
statistical (mathematical) probabilities, seldom meet the criteria of randomness and size
that are required in nationwide political polls.
In search of more meaningful and useful research
Science has always tended to move from thesis to antithesis to synthesis. A finding is observed and reported. Other investigators enthusiastically follow with apparently confirming data. Then new researchers begin to find flaws in the original studies. More sophisticated experimental designs often discredit the earlier reports, and "antithesis" becomes the ruling science of the day.
Something of this nature has happened regarding the findings of hypermnesia in hypnotic regression and also in reports regarding the frequency and causes of dissociation and MPD. Early enthusiasms have been replaced by experimental skepticisms. The case for contamination in hypnotic memories (as determined in the laboratory) has been well documented. 40 In fact, the case for the unreliability of all memories has been quite well determined. 41
Recent-day experimentalists have established the limitations and verification difficulties of hypnotically retrieved "memories." However, most researchers now agree that under hypnosis a greater quantity of "memories" is elicited, both veridical ones and pseudo or confabulated ones, such as may emanate from fantasies from operator suggestion, or from contaminations by events experienced at other times.
Therapists who treat cases hypnotically have found much value in the discovery and reexperiencing of early childhood events. Procedures that work therapeutically are not likely to be relinquished, even if we do not know why they work or whether they are supported by laboratory findings.
Accordingly, it is time for us to move to the next stage, "synthesis." The challenge now to researchers is to find ways of distinguishing verifiable from fantasized or contaminated memories. How much of a memory (retrieved hypnotically or otherwise in therapy) is true and how much is not true? Just what parts of a patient's reported memories are veridical? And what procedures could clinicians (or forensic investigators) employ to maximize such memories? It is doubtful that this differentiation can be made 100%. But if a forensic examiner or MPD therapist who (using hypnosis) has elicited a greater quantity of total memory material, some of which is presumed veridical, could specify with increased probability that certain parts are likely to be true, then scientific research would have made a significant contribution to practical application, both in the clinic and in the courtroom. If we stop at the present stage of "antithesis," our studies will have only contributed iconoclastically to the destruction of hope, but not to the improvement of therapeutic practice or equitable adjudication. I do not believe that is where researchers wish to leave their science.
The kind of questions that need asking and investigating include the following: What role does close, empathic relationship (absent in the laboratory) play in securing genuine
and valid memory discovery in the clinic? We know that mood 42 and emotional states 43 can affect recall. Might various "ego states" be isolated that interfere with, contaminate or contribute to veridical memories? How could these be elicited? What procedures most reduce suggestive influence and increase true recall? We already have some answers here as related to the form of questions. 44 Do various induction techniques, deepening procedures, or levels of trance affect veridicality of recall? Sturm 45 and Fisher 46 found that intermediately hypnotized subjects (an area little researched) made fewer memory errors than unhypnotized controls. In other words, the emphasis now in research should move from simply finding the extent of veridical or of false memories in therapies (hypnotic, psychoanalytic or otherwise) to seeking how clinicians can improve their technology and "therapeutic selves" 47 in eliciting more veridical memories. As a start, I would like to suggest several as yet unexplored possibilities.
Federn, a close associate of Freud, 48 devised a helpful approach; when his psychotic patients reported auditory or visual hallucinations, he (unlike many practitioners) did not challenge the reality of their perception with an "It's all in your head" comment. Rather, he would take the patient's report as serious, and then say, "You tell me that you really see and hear these people who are persecuting you, but you can also see me now in this room and hear me speak, can't you?" Upon the patient's agreement, he would then say, "When you see me sitting here and talking to you (and other such people), let us call that 'Reality A.' However, when you see and hear those men who are persecuting you (and others like them), call that 'Reality B.' Now, whenever you have a visual or hearing experience, tell me whether it is Reality A or Reality B." Federn claimed that patients could always distinguish. In other words, even though they experienced both as "reality," the patients could tell whether the experience came from a perception of external stimuli, Reality A, or from the contamination of fantasy by internal stimuli, Reality B.
If psychotic patients can do this (and it needs verification), then why could not other individuals learn to sense the difference between "memories" that originated from the perception of external objects and experiences and those whose origin lay in the internal stimuli of fantasies or in contaminations from other sources? Perhaps we could find out how to "teach" patients to discriminate between veridical memories and false memories. We might then "clean up" hypnotic memories to take advantage of the established fact that under hypnosis people give us more veridical as well as contaminated memory material. If research could help to separate the "wheat" form the "chaff," witness memories could then be presented in court with a possibility or probability evaluation attached.
Another study might be to investigate the effect of control by "normal" ego states in learning and retention -- something apparently not yet attempted. 49 We know that the memory contents of one MPD alter often differ remarkably from those of another, and to recover certain memories, certain alters must be activated. If this is true in the pathological cases of severe dissociation, why might it not also affect memories that had it been learned when one normal ego state was dominant but were being retrieved when another state was currently "executive"?
I once asked my psychology department's expert in research design what would be the situation under the following circumstances: An experimental subject was presented with an item to be learned when his Ego-State A was executive. Then, some time later, the experimental procedure was applied to him when Ego-State B showed up at the laboratory. Finally, the terminal examination was given at a time when Ego-State C was dominant. My scientific colleague exclaimed, "My God. You've just invalidated 90% of all psychological research." Whether or not such a situation can have that much effect, apparently to date no study has even attempted to control this factor. We know that if this factor
were uncontrolled, it would certainly invalidate learning studies based on changing ego states that were true multiple personality alters.
Ego states in normal subjects vary primarily in the rigidity or permeability of the boundaries that separate them, 50 thus influencing amnesia or memory between different personality segments. We have no data whatsoever on whether this could invalidate a study based on student volunteers with different ego states, such as we have reported in some of our own experiments. 51, 52
One final note regarding "false memories." An individual may report a "false" memory for a true experience because of the structuring of personality. Example: On the basis of dreams, projective test data and associations, I once interpreted to a patient that he had an unconscious hatred for his father. With apparent surprise he accepted the interpretation, stating, "You're right, Doctor, I understand now. I'm depressed because I hate my father." During the next few weeks there was no change in his depression, until the day he came rushing into my office, tearing his hair and screaming, "My God, I really do hate my father!" Then, and not before, did the depression lift. What had been only a "pseudo-insight," hence a "pseudo-memory," became a veridical memory as his understanding changed from superficial and intellectual to genuine, affective and meaningful. The words "I hate my father" finally became attached to the real, repressed hatred, now experienced consciously. His understanding and memories concerning his relationship to his father not only became more veridical, but also more therapeutic.
There may be many such patients who respond to a therapist's suggestion in the form of a "memory" that is false (as a memory) even when the therapist's suggestion (or interpretation) was really true. In between the externally reported false
memory and a possible (identical) veridical memory for the same event may lie a wall of unconscious denial.
I cite these possibilities simply to indicate that it is time learning and memory
studies became more sophisticated. Experimental investigators could make a more positive
contribution to the applications of psychological science in both therapy and forensic
consultation if they would now turn from the typical thesis-antithesis studies of the
past, in which the focus was on the extent to which memories were veridical or false, and
start finding out how we can increase the securing of more veridical memory
material while reducing that of false memories. Many fruitful hypotheses for
research could come from (even uncontrolled) observations of patients in treatment. Better
communication between clinicians and researchers needs to encouraged. Such communication
could result in more effective treatment and in better adjudication of legal cases
involving witness memory.
© 1994 by Federal Legal Publications, Inc.
John G. Watkins, Ph.D., 413 Evans Street, Missoula, MT 59801.
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