Memories Called Key in Abuse Suits
Delaware Men Say They Repressed Recollection of Priests' Molestation
By Beth Miller
News Journal [Delaware]
April 3, 2007
The debate over how humans remember, repress and recover memories may soon reach state courtrooms, as two men who say they were sexually abused by Catholic priests in Delaware pursue civil suits.
If not for the recovery of long-lost memories, the lawsuits -- both alleging abuses that occurred more than 20 years ago -- would be prohibited by Delaware's civil statute of limitations, a law that sets a two-year deadline for filing such claims. Both plaintiffs, Eric Eden and Douglas J. McClure, say they buried the memories of the abuses for years, making them "inherently unknowable," a claim that can prevail over the legal time limit.
To win, the men must persuade a jury that it is possible for such memories to be inaccessible and that, once recovered, their memories are valid.
Memory is always part of courtroom debate. What a witness remembers and forgets, and the differences between witnesses' memories, often are the focus of scrutiny and cross-examination.
Statutes of limitations are meant to preserve a defendant's right to a fair trial by preventing verdicts skewed by fading memories, lack of documentation and difficulty finding witnesses.
But the time limits for civil and criminal cases vary widely around the nation -- from Delaware's two-year civil limit to no limit at all.
In Delaware, claims for injuries that were "inherently unknowable" -- for example, health problems that emerge decades after exposure to asbestos -- have been allowed, albeit rarely, even after the statute of limitations had expired.
Many clinical specialists say a child's response to sexual abuse could fall into that "inherently unknowable" category. Children do what they must to survive the abuse, they say, even if it means putting it out of their minds for decades, or forever.
"I see that in my young patients every day -- 4-, 5- and 6-year-olds who have just been abused, and the abuse is validated," said Dr. Joy Silberg, coordinator of Trauma Disorders Services for Children at Sheppard Pratt Hospital in Baltimore. "If I ask them to try to remember that, they may say, 'Don't ask me. It hurts my brain.' ... They're working at getting it out of their head. A few weeks later, they won't tell you. ... Your mind pushes it away until you can't access it when you try."
People who have gone through traumatic events sometimes retrieve the memory later, Silberg said.
But arguing that the statute of limitations should be suspended in a case of recovered memory will raise significant questions about how that happens, and what are reliable means of recovering memories, said Jules Epstein, who teaches criminal law and evidence at Widener University School of Law.
The Diagnostic and Statistical Manual of Mental Disorders used by mental health workers recognizes multiple forms of memory loss, and says sexual abuse can be a cause.
The repressed-memory concept came under fire in the 1990s, when some claims of sexual and ritual abuse emerged from therapy sessions, wound up in courtrooms and were either proved false or never sufficiently corroborated.
After the clergy sexual abuse scandal emerged nationally in 2002, though, many victims came forward, saying their memories of abuse -- many of which were substantiated -- had been triggered by the news.
Psychologist Elizabeth Loftus of the University of California at Irvine believes repressed memories are a myth, saying her research has shown false memories can be invented or suggested by poor therapists.
"When people tell a detailed, emotional story, it sounds believable," Loftus said. "It's hard for people to think, 'It could be all a creation,' " she said. "These people now have an explanation for their problems in life, for their destructive thoughts and behaviors -- it's not their fault."
But proving that memories can be false does not prove that valid memories cannot be recovered. "There is not a single clinician who treats torture victims, veterans, car accident victims, rape victims, child abuse victims who has the notion that trauma does not wreak havoc with memory," said Dr. Bessel A. van der Kolk, a psychiatrist who is the medical director of the Trauma Center at the Justice Resource Institute in Brookline, Mass.
Van der Kolk, who was a principal member of the team that first defined post-traumatic stress disorder, said trauma and abuse can disturb the way the brain organizes memory.
"The things that bring it back are sensory stimuli that remind people," he said. "Something sets up the circuit in the brain, activates other sensory phenomena, and activates a certain memory -- a smell, a sound, a touch in a particular way, the smell of alcohol on somebody's breath."
Clinical psychologist Richard McNally of Harvard University said he does not deny the reality of post-traumatic stress disorder. But, he said, trauma makes memories hard to deal with, not hard to recall.
"Not thinking about something for a long time is not the same as being unable to remember it. That is an absolutely vital distinction," McNally said. "Most people who have been truly traumatized, they don't forget these things."
Last week, a Wilmington jury awarded Navy Cmdr. Kenneth Whitwell $41 million in his sexual abuse civil case against a former priest and teacher at Archmere Academy. Whitwell, who sued in federal court under Vermont's lengthier statute of limitations, said he didn't realize the harm the abuse had caused until undergoing therapy years later.
Dr. Carol A. Tavani, a Delaware neuropsychiatrist who testified on Whitwell's behalf, said children who have been sexually abused sometimes do forget. The mind goes into "autopilot," she said, repressing the memory and causing what is called "traumatic amnesia."
"The mind tries to protect you from what is too painful to look at," she said.
Pain and trust
Experts on both sides say sexually exploited children may not grasp what has been done to them until adulthood, when they understand the true nature of the offense.
In typical cases of child sexual abuse by a priest, a trusting relationship is exploited, McNally said. And that can lessen the traumatic effects, he said. "They're not threatening to kill them or their pets, it's in the context of relationship -- 'This is how I care for you.' "
But James M. Walsh, a Newark-based pastoral counselor, said the damage of abuse worsens when the abuser is a trusted person -- a parent or pastor, for example. "The bigger the amount of trust, the bigger the emotional scar," Walsh said. "If it's your biological father or priest or rabbi -- who do we trust more than our own parents and clergy people?"
The debate on what is known about memory continues. Silberg said science can be clear without being conclusive and persuasive to all.
And that likely will be part of the challenge ahead for jurors in the Eden and McClure cases.
"Witnesses get up and say things all the time where there is no physical corroboration," Widener's Epstein said. "For better or worse, that's the job we give to the jury."
Contact Beth Miller at 324-2784 or firstname.lastname@example.org.
MEMORIES AT HEART OF NEW LAWSUITS
Two civil suits now pending in Delaware courts raise the question of recovered memories of child sexual abuse.
Both men -- Eric Eden and Douglas J. McClure -- say they were abused by Delaware priests when they were boys. Both sued after fresh memories were triggered by press accounts of cases in Boston and Wilmington. Both are represented by Wilmington attorney Thomas Neuberger.
McClure told no one about the abuse he says he suffered more than 50 years ago at the hands of the Rev. Edward Carley until he read a 2005 News Journal article revealing the Diocese of Wilmington had paid a $65,000 settlement to another man who said Carley abused him.
Eden told his parents that he had been abused in 1985 by the Rev. James W. O'Neill, who was on the faculty of Salesianum School, but did not tell them about 900 other instances of abuse he alleges happened between 1976 and 1985. Eden said he repressed the memory of those other events.
Superior Court Judge Calvin L. Scott Jr. has ruled that Eden's case can go to trial. Scott said the instance of abuse Eden told his parents about is barred by the state's two-year civil statute of limitations, but that the 900 instances were not barred by the time limit because Eden claimed memories of them were lost to him, making it impossible for him to file a claim before the statute of limitations expired.
A bill to eliminate Delaware's statute of limitations for child sexual abuse cases is on Wednesday's agenda in the state Senate. Senate Bill 29 also would open a two-year "window" during which claims that would otherwise have been barred by the time limit may be filed.
-- BETH MILLER
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