True or False? a Ruling in the Case of John Doe Vs. Father Gerald Prinz Sets a State Precedent in the Controversial Use of Recovered Memory
May 28, 2002
Doe, in a suit filed in 1995, alleges that as a prepubescent youngster and again as an adolescent, [Gerald Prinz] fondled him and sodomized him when he slept over at the rectory. What makes Doe vs. Prinz unique in Louisiana is that the lawsuit is built almost exclusively on the controversial use of Doe's "recovered memory" of these events -- making it the first such sex abuse suit seeking damages in the state.
"The evidence for recovered memory is just as powerful as the evidence for false memory," says [Ross Cheit]. "But the false-memory advocates play an interesting trick when it comes to recovered memory -- they require a kind of 'science' that involves lab experiments that nobody can do. Of course, if you hold them to that same standard for false memories, there is no scientific evidence for inducing false memories of sexual abuse, either. You can't do that experiment."
In its appeal, the church challenged five findings of the lower court, most of which focused on the credibility of [Edward Shwery]'s findings and recovered memory treatment in general. But the appellate court dismissed the church's challenge on each of the five points. In her majority opinion, Judge Nadine Ramsey of Civil District Court in New Orleans ruled that Shwery's methodology, from which he determined at least two of the victim's memories were authentic, had met the minimum legal standard. Ramsey said it was "up to the jury" to decide the credibility of Shwery's findings.
On the surface, the civil damages lawsuit of John Doe vs. Father Gerald Prinz reads like many other priestly sex abuse cases splashed across the front pages of newspapers everywhere.
Doe, in a suit filed in 1995, alleges that as a prepubescent youngster and again as an adolescent, Prinz fondled him and sodomized him when he slept over at the rectory. What makes Doe vs. Prinz unique in Louisiana is that the lawsuit is built almost exclusively on the controversial use of Doe's "recovered memory" of these events -- making it the first such sex abuse suit seeking damages in the state.
On May 9, an appeals judge ruled that Doe could use recently recovered repressed memories of sexual abuse at the hands of Prinz in his effort to sue for damages. Last Wednesday, defense attorneys for the Archdiocese of New Orleans and the Diocese of Houma-Thibodeaux filed for a re-hearing with the 4th Circuit Court of Appeal. The ruling, if it stands, could trigger a flood of lingering sex abuse cases by alleged victims who claim to have blocked the painful events from their memory.
Elizabeth Loftus, a Washington psychiatrist who has spent much of the last 20 years writing about memory, says the Prinz case, like similar cases in other states, could set a bad precedent.
"If these Catholic cases start hinging on repressed memory, then we're going to see a new rash of cases brought against the church," says Loftus, author of The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse.
The concept of repressed memory later recovered is widely accepted by psychiatrists, and is the foundation of Freud's psychoanalysis. But a string of court cases in the latter 1990s in which such memories turned out to be false -- encouraged by suggestive questioning by therapists, critics say -- led to a number of courts prohibiting the use of such memories for civil and criminal cases. In fact, several adults who accused parents, teachers and other authority figures of sex abuse based on recovered memory went on to recant their allegations. Some even successfully sued their therapists.
In Doe vs. Prinz, Doe says he recovered the memory of being abused on his own, without the aid of a therapist. But Pamela Freyd, executive director of the Philadelphia-based False Memory Syndrome Foundation, says building any civil or criminal case on recovered memory, in particular when that memory is not corroborated, is dangerous.
"All of the medical associations have said the same thing -- that in the absence of external corroboration there's no way to know the truth or the falsity of any memory," says Freyd. "People recover memories all the time. They recover things that are historically accurate and they very frequently have what seems to be memories that are not historically accurate."
But Ross Cheit, a Brown University professor who maintains the Recovered Memory Project Web site, discounts critics who say recovered memory is unscientific and a figment of the imagination. He charges the same could be said about claims for false memory.
"The evidence for recovered memory is just as powerful as the evidence for false memory," says Cheit. "But the false-memory advocates play an interesting trick when it comes to recovered memory -- they require a kind of 'science' that involves lab experiments that nobody can do. Of course, if you hold them to that same standard for false memories, there is no scientific evidence for inducing false memories of sexual abuse, either. You can't do that experiment."
Cheit has catalogued nearly 100 corroborated cases of recovered memories of sexual abuse on his Web site. In each case, witnesses, admissions by the guilty party, or other compelling evidence supported victims' recovered memories, Cheit reports. That's too many coincidences, he says, to be ignored.
Tana Dineen, a veteran Canadian psychologist and author of Manufacturing Victims: What the Psychology Industry Is Doing to People -- a book that posits that psychologists "create" victims via the power of suggestion -- says it's easy to understand why even skilled psychologists and skeptical judges can find that an alleged victim's memories are authentic. After all, the person believes what they're saying.
"Judicial skepticism is something that seems to very often go out the window in these cases," says Dineen.
Peter Scharf, director of the Center for Society, Law and Justice at the University of New Orleans, goes even further. Scharf has testified for prosecutors and defense lawyers as an expert on children's memory. He says that all memory "is very problematic," intermingled with facts and fiction. Prosecuting people based on recovered memory evokes for him images of one of our nation's most paranoia-driven injustices.
"This is almost a throwback to the Salem witch trials," he says. "Basically, I think this is a new type of spectral evidence."
One of the problems with recovered memory is therapists' inability to distinguish between what he calls learned memory and virtual memory, Scharf says. "How do you disprove or prove that somebody influenced a child 10, 15 years after the fact ... or did not? How do you sort out what you experienced yourself from other people's perceptions that may have shaped your recollections?"
"There are lots of unanswered questions about why this happens," acknowledges Cheit. But that's no reason to write off the importance of recovered memory, he adds. "The 'myth' position is, quite simply, a defenselawyer position, not a scientific one," Cheit says.
IN THE PAST DECADE, AT LEAST A DOZEN COURTS have ruled on the scientific value of recovered memory. No distinct trend has emerged. In several cases, the courts ruled against ever using testimony derived from recovered memory. In others, the courts accepted such testimony as long as it was corroborated with other evidence. In still other cases, plaintiffs were permitted to base their entire case on recovered memory alone.
In Doe vs. Prinz, Doe, a 38-year-old New Orleans man, says he recently recovered repressed memories of molestations that occurred when he was 9 and 14 years old. He claims that Prinz, then a priest in Houma and Bayou Blue, molested him several times in 1973 and 1978. The alleged incidents took place at St. Gregory Barbarigo Parish in Houma and St. Louis Parish in nearby Bayou Blue.
Prinz, 62, no longer serves as a priest. He has never admitted he molested anyone, and he did not return several calls seeking comment for this story. Dwight Paulsen, an attorney representing Prinz and the churches, also did not return a phone call seeking comment.
Jill Trahan, Does' attorney, acknowledges that there is little corroborating evidence her client was abused by Prinz. Her client's parents, says Trahan, do not recall their son acting out, experiencing depression or becoming unusually withdrawn during or shortly after the alleged incidents occurred.
The only corroborating evidence, says Trahan, is that the client's parents can place their son at the rectory on Easter weekend 1973, when one of the molestations allegedly occurred, and at the sacristy for another incident. "They have corroborated that they did allow him to sleep over on specific weekends when they were going out of town," says Trahan.
According to the suit, in the early 1990s, the victim began suffering from bouts of anxiety, sweats and depression, and experienced recurring nightmares of "an unidentified man on top of him" for about a year and a half. In 1994, he allegedly recovered the memories that Prinz molested him. Trahan says her client did not seek counseling until a year later, and that all of his recovered memories came to him without recovered memory therapy.
The ruling by the 4th Circuit Court of Appeal, believed to be the first of its kind in Louisiana, is just one more turn in a series of legal twists regarding recovered memory:
* In 1995, a Baltimore judge dismissed a lawsuit brought by two former students against a Roman Catholic priest who allegedly molested them almost 25 years ago when they were in high school. In his ruling, the judge said that recovered memory did not "meet the test of scientific reliability" and that "no empirical studies verify the existence of repressed memory."
* In 1996, a Texas Supreme Court decision precluded evidence derived from recovered memory therapy as the basis of a lawsuit. The court said there could be significant differences between what it called "forensic truth and therapeutic truth" and that "fundamental theoretical and practical issues remain to be resolved." The court expressed concern about the power of suggestion in recovered memory therapy.
* In 2001, Boston's Supreme Court ordered a new trial for a man accused of raping a 14-year-old boy who then blocked the events from his memory for several years. The victim was allegedly raped by a bus driver during a Halloween trip. The boy says he forgot about the rape almost immediately after it happened, and began to remember pieces of it about two and a half years later.
* The crux of child-rape charges against former Boston priest Paul Shanley, arrested earlier this month, are based on recovered memory. Paul Busa says he was reading a newspaper article about Shanley being accused of molesting another child when memories of his own abuse came flooding back. Busa recalls being led from catechism classes to church bathrooms and confessionals, where, he says, he was abused by Shanley nearly every week for seven years from ages 6 to 13.
IN PRETRIAL HEARINGS IN THE DOE case, church attorneys argued it was too late for the victim to sue and challenged the credibility of psychologist Edward Shwery's findings. But the court -- following what's called contra non valentem, a legal exception to statutes of limitation that can be used when the victim is prevented by "outside" forces from coming forward -- ruled the case could go to trial.
In its appeal, the church challenged five findings of the lower court, most of which focused on the credibility of Shwery's findings and recovered memory treatment in general. But the appellate court dismissed the church's challenge on each of the five points. In her majority opinion, Judge Nadine Ramsey of Civil District Court in New Orleans ruled that Shwery's methodology, from which he determined at least two of the victim's memories were authentic, had met the minimum legal standard. Ramsey said it was "up to the jury" to decide the credibility of Shwery's findings.
Judges Dennis Bagneris and Terri Love, voting with the majority, said if the jury believes the memories to be authentic, then the case could go on. Chief Judge William H. Byrnes III dissented, saying the majority could not cite a single Louisiana case in which contra non valentem was used in connection with recovered memory.
Due to continuing appeals, no court date for John Doe vs. Father Gerald Prinz has been set.
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