|Judge Rules Against
By Todd Cooper
Omaha World-Herald, carried by Opus Bono Sacerdotii
November 29, 2005
A Douglas County District judge has declared the notion of repressed memory unscientific and unreliable - effectively gutting a former Boys Town student's lawsuit claiming that a priest molested him in the 1980s.
In an order filed Monday, Judge Sandra Dougherty ruled that Todd Rivers of Omaha could not present expert testimony that he had repressed memories of abuse. She said Rivers' expert had not proved that such a diagnosis is scientifically valid.
But even if repressed memories do exist, Dougherty said, she questions whether such a diagnosis applied to Rivers.
Rivers alleges that the Rev. James Kelly made him drop his pants during confession and re-enact how he would masturbate. Rivers alleged that Kelly touched his crotch after he pulled up his pants.
But Rivers said he didn't remember the incident until he "recovered" the memory in a dream in 2002 - nearly 20 years after the alleged abuse.
Dougherty is the first Nebraska judge and just the sixth judge nationally to rule on repressed memories, an issue that is critical to some of the claims of people alleging sexual abuse.
Otherwise barred by statutes of limitations, many sexual assault victims take one of two paths when they file claims years after alleged abuse. They say a disability, such as a mental illness, precluded them from taking action. Or they assert that they suffered from a repressed memory.
Of the five other rulings on the issue, two federal judges and a Louisiana judge have recognized repressed memory as an acceptable diagnosis. But two state courts have rejected the idea as unscientific.
Dougherty joined the fray. But her decision might not be the final say.
U.S. District Judge Laurie Smith Camp of Nebraska is expected to decide the same issue after a hearing next month in another man's lawsuit against Kelly and Boys Town.
Rivers' attorney, Patrick Noaker of St. Paul, Minn., said Rivers was "very disappointed" in Dougherty's order.
"Todd knows what happened and he stands by (his account)," Noaker said. "He has made it very clear that we've got to make sure this decision doesn't deter others from coming forward and getting help."
James Martin Davis, an attorney for Girls and Boys Town, said he will ask Dougherty to dismiss Rivers' case, arguing that, without being able to claim a repressed memory, the statute of limitations has passed.
Davis said the judge was correct in scrutinizing the medical community's stance on whether the repressed memory notion is scientific or speculative.
"This is daytime talk-show science," Davis said. "It's not bona fide psychological or psychiatric theory."
Dougherty noted that the psychiatric community is sharply divided on whether repressed memory exists. Some doctors swear by it; others classify it as unsupported.
In her 25-page order, Dougherty detailed the views of psychiatric and medical groups. The American Medical Association, for example, "considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification," she wrote.
The American Psychiatric Association, Dougherty noted, said that some abuse survivor's "coping mechanisms result in a lack of conscious awareness of the abuse for varying periods of time. . . . The only way to prove the accuracy of a recovered memory report is to produce corroborating evidence."
Noaker said Rivers has corroboration. He said Rivers' account matched two other students' accounts of Kelly's behavior. (Kelly has denied the claims.)
But Dougherty noted that an investigator working on Duffy's case called Rivers to question him about possible abuse. Only after that call, Dougherty said, did Rivers first tell his wife of his "recovered" memories.
The judge ruled that there was no evidence as to when Rivers repressed the alleged molestation. She noted that Rivers stopped going to confession after the incident.
"So it is clear that for some period of time Rivers remembered the incident," she wrote.
Even if Rivers' mind produced a buried memory, Dougherty questioned how anyone could attest to the veracity of his account.
"The fact that there is approximately 20 years between the alleged events and the 'recovered' memories increases the unreliability of the memory," she wrote.
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