Families Target Therapists in Memory Cases

Many celebrities recently have been in the news, not to promote their latest Hollywood exploit, but to allege that their parents, relatives or loved ones sexually abused them as young children. Roseanne Barr, Oprah Winfrey and LaToya Jackson are just some of the stars who have recalled memories of child molestation, some after having repressed these thoughts for years. Such publicity apparently has helped to ignite civil lawsuits against the alleged abusers to recover damages.

Certainly, child sexual abuse is a serious and sensitive matter and one where the wrongdoer should be made to pay for the wrongful acts committed.

Nearly half of the country's legislatures have responded sympathetically to the plaintiff's position in relaxing the civil statutes of limitations. For instance, in Illinois, the legislature amended the statute to allow suit within two years after the abuse is discovered or, through reasonable diligence, should have been discovered. 735 ILCS 5/13-202.2 (Supp.1995). The statute does not begin to run until the abused child reaches 18 years of age.

However, the shocking nature of these alleged acts should not allow the legislatures or the courts to jump to conclusions unsupported by reliable evidence.

It is not yet known how to distinguish true memories from imagined events in cases where memories surface in adulthood. Scientific research and clinical case studies on the subject have been rejected by most experts as unconfirmed speculation. But, even if such memories can be repressed, it is the accuracy of their reproduction that is under question.

Delegates at the American Medical Association adopted at its 1994 annual meeting the policy that recovered memories of sex abuse are unreliable and must be verified through outside evidence. The 38,000-member American Psychiatric Association adopted a similar stance that year. It is particularly disturbing when these memories - or fantasies, as some psychiatrists call them - emerge after employing memory enhancement techniques conducted by ill-trained therapists. Sometimes counselors, as part of their treatment, implant these thoughts in the patient through hypnosis, aggressive truth serum treatment, suggestive questioning of a vulnerable subject, age regression or sexualized dream interpretation. Generally, the medical community has concluded that the greater the therapeutic intervention, the greater the likelihood the recollection is false or inaccurate.

And it is disconcerting to read about some so-called therapists who receive certificates in memory enhancement techniques after a mere one-week training class. Licensing of counselors, unlike psychiatrists or clinical psychologists, in many states is quite lax or non-existent.

But the admissibility of these repressed memories is not as widely accepted by the courts as on the therapist's couch. Illinois is one such example.

For instance, in Tardi v. Henry, 212 Ill.App.3d 1027, 571 N.E.2d 1020 (1st Dist.1991), the court reversed the jury's $352,500 verdict in favor of the plaintiff in a civil action for assault and battery. There, a woman under hypnosis recalled being sexually abused by her neurosurgeon.

Justice Thomas Rakowski, pointing to the lack of support in the scientific community that hypnosis restores memory, concluded for a unanimous court that the hypnotically enhanced testimony was unreliable.

And now the accused are taking the offense. A trend appears to be emerging as those wrongly accused of incest take therapists to court.

Ramona v. Isabella, (C61898, Napa, Calif., Super.Ct.1991), marked the first time a non-patient sued a therapist for malpractice. The California jury awarded a father $500,000 for a therapist ruining his family and his livelihood when his daughter accused him of sexually abusing her as a child after the therapist dispensed truth serum.

Two other jury verdicts - one in Dallas and another in Pittsburgh - represent subsequent unrelated cases in which third parties successfully sued therapists in repressed memory cases.

And a federal district court here held similarly in Sullivan v. Cheshier, 846 F.Supp. 654 (N.D.Ill.1994). There, Judge James Zagel denied a therapist's motion for summary judgment and held that a jury could infer from the facts alleged that the daughter's memories of her older sibling's molestation were false and intentionally or recklessly implanted by the therapist who had hypnotized the young woman. The matter is now in discovery.

Concern over such false allegations have led to the establishment of the False Memory Syndrome Foundation, a Philadelphia-based group that has grown from about a dozen organizers to more than 17,000 families who have contacted the Foundation since its inception three years ago. It reports nearly 50 cases of families suing therapists, generally when family members are irreconciliably estranged over the accusations generated by the repressed memories.

Certainly, not everyone accused of child abuse is innocent. Nor are all memories fabricated. But the bench and bar should be watchful that lawsuits involving repressed memories not take on the tenor of the Salem witch trials or the McCarthy hearings.

Perhaps the civil and criminal bars' efforts would be more productive if aimed at detecting wrongful acts soon after they occur and vigorously pursuing them at that time.