Repressed Memory Versus False Memory - Going To Court

Suing Alleged Abusers

According to the False Memory Syndrome Foundation (FMSF), between 1983 and 1998 many individuals who had "recovered" memories of childhood sexual abuse sued their alleged abusers, many at the instigation of their therapists. During those years a total of 589 lawsuits based on repressed memory were filed, of which 506 were civil and 83 were criminal. Following a sharp rise in 1992, the year the FMSF was created, the number of lawsuits dropped rapidly after 1994.

While the courts readily accepted some early cases of child sexual abuse, courts in more and more states are becoming increasingly suspicious of accounts of outrageous abuse. Therapists are being held liable for malpractice not only by their patients, but often by third parties (usually the accused parents of someone who has allegedly recovered memories of sexual abuse).

The Case of Eileen Franklin

In 1990 George Franklin was convicted of killing his daughter Eileen's friend twenty years earlier. Eileen claimed to have recovered memories of her father's murderous act as she was gazing into her own daughter's eyes. She told her secret to her therapist. She then told police she suddenly remembered herself as a nine-year-old watching her father kill her friend. Later on Eileen changed her account of how she recalled the murder, at one point telling police that the details of the killing became clearer to her after she underwent therapy.

Lenore Terr was an influential expert witness at this first criminal trial in the United States involving recovered memory. Terr, who supports the idea of repressed memory, later wrote about Eileen's story in the book Unchained Memories: True Stories of Traumatic Memories, Lost and Found (New York, NY: Basic Books, 1994).

Harry MacLean, who reported on the case in his book Once upon a Time: A True Story of Memory, Murder, and the Law (New York, NY: HarperCollins, 1993), claimed that Professor Terr had repeatedly distorted the facts to suit her purpose. Terr claimed to offer a dramatic proof of Eileen's truthful testimony when she described the "body memory" (a physical manifestation of trauma that the conscious mind has forgotten) of Eileen's repressed trauma. According to Terr, Eileen had a habit of pulling her hair out, resulting in a balding spot on her scalp. Eileen had allegedly seen her father murder her friend with a blow to the head using a large rock.

According to MacLean, in his interviews with Eileen's mother, sisters, school friends, and teachers, no one could remember Eileen's pulling out her hair or having a bleeding spot on her scalp. Dr. Ofshe and Ethan Watters (Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria, New York, NY: Scribners, 1994) found more than forty photos taken of Eileen during the relevant period that were wrongly withheld from the defense and that showed no trace of a bald spot.

In November 1995 a federal appeals court overturned George Franklin's murder conviction. By this time Franklin had served almost seven years of a life sentence. The court ruled that the trial had been tainted by the improper allegation that Franklin had confessed and by the exclusion of crucial evidence: Eileen had been hypnotized by her therapist, Kirk Barrett, prior to the first trial, making her testimony unreliable. The court ordered a retrial. On July 2, 1996, the prosecution dropped the charges, citing the problem of Eileen's hypnosis that, by California law, would probably prevent her from testifying. In addition, new DNA evidence showed that it was impossible for Franklin to have committed the second murder his daughter had accused him of, which she claimed happened when she was fifteen.

In June 1997 George Franklin filed a civil suit in federal court against his daughter, her therapist, Barrett, and county officials, claiming violation of his civil rights. The suit alleged, among other things, that Eileen, Barrett, and county officials conspired to deny George Franklin the due process of law and violated his Fifth, Sixth, and Fourteenth Amendment rights to confront witnesses against him. He also sued Professor Terr for conspiring with Eileen to give false testimony.

In 2000 the court dismissed Franklin's suit against the county officials. The judge for the Ninth Circuit Court of Appeals also threw out the claims against Professor Terr, writing in his opinion, "Terr is absolutely immune … for civil damages based on the allegation that she conspired to present her own and another witness's perjured testimony at Franklin's criminal trial…. Absolute witness immunity is based on the policy of protecting the judicial process" (Franklin v. Terr, No. 98-16843 [2000]). The court dismissed the suit against Barrett because George Franklin failed to state the right claim that the therapist had conspired with a state official to deny him his constitutional rights. Franklin had sought a token $1 award from his daughter, but that, too, was thrown out.

Suing the Therapist

In February 2004 Elizabeth Gale settled a lawsuit against three therapists and the Rush-Presbyterian-St. Luke's Medical Center and Tush North Shore Medical Center in Chicago, Illinois, for $7.5 million. In 1986 Dr. Bennett Braun, a psychiatrist, first diagnosed Gale as having multiple personality disorder when the patient sought treatment for mild depression. Gale was hospitalized for five and a half years and was treated by two other therapists, Doctors Roberta Sachs and Corydon Hammond. Under hypnosis, Gale believed that she was involved in a secret cult that sacrificed children. She was told she had repressed memories of her participation in the cult. She had a tubal ligation, with Braun's approval, so that she would not bear any more children for the cult.

Dr. Bennett Braun settled a similar repressed-memory malpractice suit in 1997, with co-defendants Dr. Elva Poznanski and the Rush-Presbyterian-St. Luke's Medical Center, for $1.6 million. The plaintiff, Patricia Burgus, consulted Braun for postpartum depression in 1986. For the next six years, using hypnosis and medication, Braun convinced his patient that she had developed more than three hundred multiple personalities as a result of child abuse. She believed that she was horribly tortured by her family and had participated in ritual murders, cannibalism, and devil worship. Braun also convinced Burgus and her husband that their two sons, ages four and five, might be predisposed to multiple personality disorder like their mother and should be committed to the hospital psychiatric ward. Doctors Braun and Poznanski helped the children "remember" abuse perpetrated by their mother, exposing them to guns and handcuffs for "therapeutic" purposes.

Third-Party Suits

The courts now often hold therapists liable to a third party, usually the patient's accused parent, when they implant or reinforce false memories in their patients. Social worker Susan L. Jones, while treating Joel Hungerford's daughter Laura, convinced her that her anxiety attacks were the result of sexual abuse by her father. Jones not only advised Laura to cease contact with her father but also convinced the patient to file a complaint of aggravated felonious sexual assault against Joel. In addition Jones contacted the police regarding the alleged assault and aided the prosecution in indicting Joel Hungerford.

Hungerford sued Jones for the misdiagnosis and negligent treatment of his daughter's condition. Jones claimed that she owed Hungerford no duty of care, meaning that since she had treated Laura Hungerford, not Joel Hungerford, Joel Hungerford could not claim that her treatment had hurt him. On December 18, 1998, in Joel Hungerford v. Susan L. Jones (No. 97-657 [1998]), the New Hampshire Supreme Court, in this case of "first impression" (with no existing precedent), ruled:

We hold that a therapist owes an accused parent a duty of care in the diagnosis and treatment of an adult patient for sexual abuse where the therapist or the patient, acting on the encouragement, recommendation, or instruction of the therapist, takes public action concerning the accusation. In such instances, the social utility of detecting and punishing sexual abusers and maintaining the breadth of treatment choices for patients is outweighed by the substantial risk of severe harm to falsely accused parents, the family unit, and society.