Santa Clara University

closing arguments

by Alan W. Scheflin, professor, Santa Clara University School of Law

Memories of Abuse

Alan W. Scheflin

A child, six years of age, is called out of his catechism class and is molested by a priest who warns the boy not to tell anyone about it. This sexual abuse reoccurs repeatedly over the next six years. The memories of these events become inaccessible to the child until they return two decades later.

Is it possible that severe and repeated traumatization can be completely blocked from memory? A jury believed this to be true when they convicted Reverend Paul Shanley in February of these hideous acts. The jurors were correct. The phenomenon incorrectly known as “repressed” memory or “recovered” memory, but more accurately called “dissociative amnesia,” has been recognized by psychiatry and well documented for more than 100 years.

Before the 1960s, physical abuse of children went unnoticed until some physicians developed what is now called the “battered child syndrome.” As a result of their research, mandatory reporting laws exist in every state. Before the 1980s, sexual abuse largely remained a hidden “dirty little secret.” Children who claimed to have been abused generally were not believed because the public refused to face the possibility that adults, especially parents, would prey upon the young as sexual targets. During the 1980s, a change in perspective brought about the creation of Child Protective Services (CPS) organizations which began serious investigations into abuse allegations. Not surprising, parents accused of molesting their children complained that the accusations were false. Thus began the first backlash, which had one major virtue—it uncovered serious flaws in the way CPS investigators questioned the children and in the methods used to obtain statements from them. But the backlash also produced one harmful effect—it made adults discredit and disbelieve children’s reports of molestation.

Stories about sexual abuse of children by priests began surfacing in the 1980s. However, as they say, the story “did not have legs,” and so it faded from public attention.

In the 1990s, adults began reporting sexual abuse that occurred when they were children, and the backlash arguments used against CPS now shifted to therapists, who were accused of falsely implanting memories using suggestive questioning methods similar to those practiced by CPS workers. For more than a decade, media stories on so-called “false memory syndrome” have shaped public, and judicial, opinion against believing that these memories could be accurate. Adults reporting sexual abuse that occurred when they were children faced a difficult legal problem. If their memories were continuous, the statute of limitations barred their lawsuits and also barred prosecutions of the perpetrators. If their memories were “repressed,” experts for the defense testified under oath that repressed memory is not accepted by science. In a letter to the Boston Globe after the verdict in the Shanley case, Harvard memory researcher Susan A. Clancy wrote: “I don’t believe repression exists. Second, I don’t believe the abuse at the time it occurred was traumatic. For children, sexual abuse is rarely painful or terrifying at the time it occurs.” According to Clancy, “the only way for victims to bring justice to these crimes is to invoke the mythical concept of repression.”

In fact, however, the concept of repression has existed long before statute of limitations issues involving sexual abuse have been litigated. Furthermore, legislators have recognized the validity of repressed memory and drafted statutes protecting causes of action that would otherwise be barred. Finally, approximately 85 studies, using several different research designs, demonstrate the error of their opinion.

In the early 2000s, the priest abuse cases made headlines again. But this time, the story did not go away, and victims’ reports were verified by church files or confessions by the offending priests. The Shanley verdict, along with similar recent verdicts in cases of returned memories, have initiated the second backlash, this time in favor of believing that trauma memories can be repressed.

In fact, now, as always, there are two classes of victims— those children who were actually molested, and those adults who have been falsely accused. It would be foolish to believe that all memories of abuse are false, or that all denials of abuse are true. Similarly, it would be foolish to believe that all memories of abuse are true, or that all denials of abuse are false. The problem for the legal system, and the challenge for science, is to find a way to ascertain when memories are most likely to be true or most likely to be false.

Scheflin’s writings on memory, suggestion, and hypnosis have received a dozen awards from a variety of professional organizations, including the American Psychiatric Association and the American Psychological Association. He has acted as an expert witness or consultant on these issues in cases in 14 states and Canada.