The "False Memory" Defense:
Using Disinformation and Junk Science in and out of Court

Reproduction here by permission of the editor from Haworth Press,
Special Issue on Disinformation, Journal of Child Sexual Abuse 9(3 & 4):
(in press for 2001/2) (to order full issue:1-800-429-6784)

Submitted: October 22, 2000
Revised: March 8, 2001
Accepted: July 27, 2001

Charles L. Whitfield, M.D., F.A.S.A.M. is in Private Practice in Atlanta, Georgia. He is a member of the Leadership Council on Mental Health, Justice and the Media, and on the faculty of Rutgers Institute on Alcohol Studies, Rutgers University, New Brunswick, NJ.

Correspondence to: Charles L. Whitfield, Box 420487, Atlanta, GA 30342 404-843-4300

This article describes a seemingly sophisticated, but mostly contrived and often erroneous "false memory" defense, and compares it in a brief review to what the science says about the effect of trauma on memory. Child sexual abuse is widespread and dissociative/traumatic amnesia for it is common. Accused, convicted and self-confessed child molesters and their advocates have crafted a strategy that tries to negate their abusive, criminal behavior, which we can call a "false memory" defense. Each of 22 of the more commonly used components of this defense is described and discussed with respect to what the science says about them. Armed with this knowledge, survivors, their clinicians, and their attorneys will be better able to refute this defense of disinformation.

Key words are: dissociative amnesia, traumatic amnesia, child sexual abuse, child molesters, pedophiles, enablers, "false memory", "false memory" defense, disinformation.

In a civil lawsuit brought by an adult daughter against her father for sexually abusing her when she was a child, the following is an example of a closing argument for the defense:

Ladies and gentlemen of the jury, I ask you to finally lift this burden off his back, to let him stand tall and proud again. And when you do, realize that you will be helping Roberta, too, because she cannot get better if she keeps pursuing a dream based on a false memory. She needs to know you have seen the truth; she needs to face the truth herself. For it is only the truth that can reunite this family and allow love to return to it. [The lawyer for the defense now pauses for effect.] …. All you need to do to help this family is to reach a verdict for the defendant. When you do, realize that good can come out of this lawsuit. The defendant himself holds no hard feelings toward Roberta for these terrible accusations. He realizes that Roberta has been misguided [by her therapist]. He still loves her. He and Gertrude want their daughter back. So bring in a verdict that can accomplish that-a verdict for the defendant. Help to free Roberta from her terrible confusion that has misled her. Help to show her the truth. [With those final words, the defense attorney looks at the face of each juror and then returns to his seat] (Roseman, Craig & Scott, 1997, p. 454).

This is a typical and perhaps convincing ending of a closing argument in many of these cases. We can see how at least one of the two sides plays upon the other in presenting their evidence for their client. The problem is that even those who have indeed committed child sexual abuse almost universally claim innocence, and they use the same defense as above (Levy, 2000).

Attorneys for accused, convicted or found-responsible child molesters tend to use a superficially sophisticated argument, which can be described as the "false memory defense." This defense is fraught with disinformation, smoke screens, and other untruths that are a distortion of what the available science of the psychology of trauma and memory shows. In this article, this seemingly sophisticated, but actually mostly contrived and often erroneous defense, is described and it is compared in a brief review to what the science says about the effect of trauma on memory.

Many who are accused and some who are convicted of child molestation, an especially harmful kind of criminal behavior, have made a number of claims. A principal claim is that dissociative (also called traumatic) amnesia and other detrimental effects resulting from child sexual abuse (CSA) do not exist (Brown, Scheflin, & Hammond, 1997; Brown, Scheflin, & Whitfield, 1999; Whitfield, 1995b, 1997b). Assisted by their attorneys, some family members, and other advocates in order to defend themselves, these "false memory" advocates have made many erroneous statements to discount the experience of survivors of child sexual assault and to attack helping professionals. They have blitzed the media and tried to influence the clinical, academic, and legal professions with what is mostly disinformation (J. Freyd, 1993; Freid, 1994; Brown, Scheflin & Whitfield, 1999; Hovdestad & Kristiansen, 1996; Loftus, 1993; Pope, Hudson, Bodkin, & Oliva, 1998; Pope, 1995, 1998; Pope & Brown, 1996; Whitfield, 1995a, 1995b,1998a).

They have claimed that their accusers' experience as a survivor of CSA was invalid, and that they, the accused, were the "real" victim (Roys, 1995; D.T. Roys, personal communication, November 1997). While there have been many factors to account for this defense (see Whitfield, Silberg, & Fink, this issue), since early 1992 perhaps the organized hub of this group has been the False Memory Syndrome Foundation (FMSF). The FMSF has claimed that persons accusing parents or other parent figures of having molested them as children had a "false memory syndrome" ("fms"). The FMSF further claims that the alleged "false" memories were "implanted" by outside sources, such as therapists, self-help groups or even books and other "suggestive" influences. They tried to make "fms" appear scientific in order to help it gain entrance into the courtroom and academia.

They have taken a criminal act and major betrayal of children, families and society and cleverly framed it as a "memory problem." Prior to and since the FMSF was founded in March 1992, there has not been a single case report documenting the existence of any clinical condition known as "false memory syndrome" published in any of the peer-reviewed clinical or scientific literature (Brown, Scheflin & Whitfield, 1999; Dallam, this issue; Whitfield, 1995b, 1997b). This lack remains to this day, a full nine years later, in spite of the FMSF's pledge in 1993 to promote and support research on their made-up "syndrome" (FMSF flyer, August 1993). A condition known as "false memory syndrome" is not included in any of the diagnostic codebooks and is not recognized as a bona fide clinical disorder by any of the mental health professional associations or societies. It is not included or even mentioned in any edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) (American Psychiatric Association, 1994; Pope, 1998; Pope & Brown, 1996; Whitfield, 1995a, 1995b). There is also no convincing evidence in the clinical and scientific literature that anyone can "suggest" or "implant" enduring false memories of childhood sexual abuse, or induce the long-term effects of child sexual abuse in individuals or groups of people without actually abusing them (Brown, Scheflin & Whitfield, 1999; Whitfield, 1995b). Some forensic psychologists and sociologists affiliated with the FMSF have coined another term as part of the false memory defense: "recovered memory therapy." Like "fms," "recovered memory therapy" ("rmt") is not recognized by the DSM-IV or any other authoritative source (Briere, 1996; Brown, Scheflin & Whitfield, 1999; Pope, 1998), yet some "fms" advocates, defense attorneys and their expert witnesses continue to use the term.

A problem with the "false memory" defense was that these theories were not based on careful clinical observation or solid research. Rather, they were based mostly on speculation, usually made by non-clinicians, some of whom were themselves accused of unethical behavior or had a personal or financial interest in the accused being innocent (Brown, Scheflin, & Hammond, 1997; Crook & Dean, 1999a, 1999b; Freid, 1994; Pope, 1995; Stanton, 1997; Whitfield, 1995b).

The "false memory" defense is one of the most sophisticated ones to appear in the history of the denial and minimization of the existence and effects of child abuse, especially CSA, and it manifests as a peculiar but not surprising socio-cultural-political-legal phenomenon of the 1990s. It may present itself as any of a number of kinds of disinformation which the accused, the convicted, and their advocates used regularly (Brown, et al, 1999; Dallam, this issue; Cheit, this issue; Emrick, 1994, 1996; Roys, 1995; Scheflin & Brown, 1996; Stanton, 1997; Whitfield, 1995b). These defense strategies are listed in Table 1, and each is briefly described below.

Table 1. Components of the False Memory Defense

1. The "Looking Good" Defense
2. The Accused/Defendant is the Real Victim
3. Choose Someone Else to Blame
4. Try to Blame the Plaintiff
5. Plaintiff has Not Shown External Evidence of CSA
6. Hire and Use a "False Memory"/ "FMS"-Advocating Expert Witness
7. Inappropriately Introduce Satanic Ritual Abuse, Alien Abduction, and "Past Life" Experience
8. Regularly Take Quotes and Citations Out of Context
9. Try to Use Biased Articles and/or Opinions
10. Misinterpret the Effects of Trauma
11. Negate Dissociative Amnesia
12. Claim "Childhood Amnesia" When Accuser Has Early Memories
13. Claim Other Reasons Why They Were Accused
14. Propose Other Explanations for Accuser's Symptoms
15. Try to Combine "Common Sense" with a "Law of Probability"
16. Use Contrived Terms and Other Pseudoscientific Jargon
17. Make Up Other Special Categories with No Scientific Support
18. Try to Discredit Every Corroborating Witness
19. Erroneously Try to Equate Retraction with "Proof"of "False" Memory
20. Try to Impeach Other Witnesses or Those Who Have Filed Reports
21. Try to Intimidate and Impeach Plaintiff's Expert Witness
22. Play on Our Individual and Collective Wishes and Doubts

"The Looking Good" Defense

The "false memory" defense commonly starts with a "Looking Good" defense, which claims that the accused or defendant is innocent, an upstanding member of the community, a family man/woman, churchgoing, hard working, and respected (Emrick, 1994; Pope & Brown, l996; Whitfield, l995b). This is one of the oldest strategies in courtroom history; that is, simply make your external appearance look better so that those who may be judging your alleged criminal behavior will thereby think better of you. For example, in the murder trial of George Franklin, whose daughter had also accused him of sexually abusing her (Terr, 1994), his attorney had him clean himself up appreciably before appearing in court. Previously disheveled, he now looked neat and clean (A.W. Scheflin, personal communication, October 1999). Nonetheless, he was convicted of murder, although

A few years later he was released from prison on a procedural technicality. In another instance, Pamela Freyd, co-founder and director of the FMSF, explained that her accused members were not pedophiles or child molesters because "We are a good-looking bunch of people, graying hair, well-dressed, healthy, smiling …Just about every person who has attended [our meetings] is someone you would want to count as a friend" (P. Freyd, 1992, p. 1).

Just as most of the other defensive components described below, the science shows the opposite of what the "false memory" advocates claim. Looking good or bad is not a factor. The disorder of pedophilia and its usually resulting crime of CSA have no socio-economic restrictions or boundaries. There is no such stereotypic abuser. People from all socio-economic strata are equally represented among the pedophile/child molesting population (Salter, 1995; Whitfield, 1995b). Interviews of convicted and self-confessed child molesters reveal that one cannot rely on self-report when assessing whether someone is a sex offender. Despite their initial and enduring complete and convincing denial, when they are finally in appropriate treatment or prison, many offenders ultimately relate their crimes in horrific detail. In these special and safe circumstances, molesters commonly describe how they fooled people in their communities for years by "looking good," by being so kind and responsible that no one would believe an accusation of sexual abuse or assault (Roys, 1995; Salter, 1998; Whitfield, 1998b). This "looking good" appearance is part of the "grooming" behavior that the molester commonly uses with the child and the family or others to make them all feel a false sense of safety when the child is in his or her care (Emrick, 1994; also cited in Whitfield, 1995b). In this regard, if appropriate, the victim's attorney can offer evidence of "grooming" behavior and expert testimony that "looking good" is consistent with the superficial persona of a child abuser (W. Murphy, personal communication, October, 1997; Salter, 1998; Whitfield, 1995b).

The Accused/Defendant is the Real Victim

In a strange but common way of thinking, the molester and their knowing or unknowing accomplices try to turn the tables on the accuser by saying that the accuser simply made a mistake. This strategy claims that, in a strange kind of sleight-of-hand, the defendant is actually the victim here, just as the plaintiff and family are too, since the real offender(s) is/are the inducers or "implanters" of "false memories" or "false memory syndrome." This strategy is commonly used now to help defend child molesters (Emrick, 1994, Roys, 1995; Salter, 1995).

In spite of recent attempts to claim that CSA is not harmful (Rind, Tromovitch, & Bauserman, 1998; see critiques of this in the present issue), the science shows that the detrimental effects of CSA do harm the child (Briere, 1996; Courtois, 1999; Dallam, Gleaves, Cepeda-Benito, Kraemer, & Spiegel, in press; Felitti, et al, 1998; Herman, 1992; Kendler, et al, 2000; McCauley, et al, 1997; Whitfield, 1998c), and not the abuser. The victim's attorney can argue that such a position is a "red herring" designed to distract attention from the gruesome facts of the case (W. Murphy, personal communication, October 1997).

Choose Someone Else to Blame

"False memory" advocates try to divert the blame to others. They claim that the actual causes of the "false memories"- which they say are the "real perpetrators," that "victimize" the innocent accused defendant-- may include any one or more of the following:

1. The therapist --The "fms" advocate may offer varying kinds of "evidence," often in the form of opinion articles that appear in journals, but written by authors who are frequently one or more of their own FMSF advisory board members. Examples include the opinions of Loftus (1993), who, in spite of having no clinical training or expertise and basing her ideas and reports mostly on her experiments on normal memory, she tries to negate the existence of dissociative amnesia and other effects of CSA. Another example is the report of a controversial and methodologically weak survey of therapists' experience. The author claimed that therapists commonly suggested "false" memories of CSA to their patient/clients (Yapko, 1994a, 1994b). But there are no other data to support this contention. In fact, Whitfield and Stock (1996) and others (e.g., Brown, Scheflin & Whitfield, 1999) have found that individual and group therapy were among the lowest associations as triggers of recovered memories of CSA.
2. The therapy group - In looking at comments about group therapy, we usually find claims and speculation only and no peer reviewed or data based studies.
3. The books - any self-help or recovery oriented book. As with most of these ideas, they are simply claims and speculation, with no documentation by peer reviewed or data-based studies.
4. The media -movies, talk shows, other venues. Likewise, claims and speculation only, since there are no peer reviewed or data-based studies.
5. The plaintiff - they claim, was too "suggestible" to the above items 1 through 4 and was looking for a "complex" answer (molested by the accused) to a "simple" explanation ("false memory syndrome"). The truth is that "fms" is itself a complex, controversial, elusive, and unproven hypothesis that remains neither properly researched nor peer-reviewed. Using the law of parsimony, what they call a "complex" answer is in fact the simplest explanation for the plaintiff's symptoms (Cheit, 1998, 1999, 2000; Roseman, et al, 1997; Whitfield, 1995b).

Try to Blame the Plaintiff

They use this strategy often, especially if the allegations are unusual, and then focus on the plaintiffs to try to make them and their behavior look bizarre or crazy. Usually the plaintiffs are still doing active work in their recovery process, with all of the emotional swings that occur, and consequently these may make them appear as though they are "crazy" on the surface. Often when the effects of recovery from trauma are considered, it is actually clinically appropriate for the people to manifest a broad range of symptoms, such as intrusive posttraumatic stress symptoms, dissociative symptoms, and painful psycho-physiological reactivity (Brown, Scheflin & Whitfield, 1999; Herman, 1992; Whitfield, 1995b). Reliable recovered memories are typically accompanied by significant emotional distress and the occurrence of psychiatric symptoms concurrent with recovery of the memory (Brown, Scheflin & Whitfield, 1999; Courtois, 1999; Whitfield, 1994, 1998c).

Recent research has addressed the natural history and phenomenology of recovered memories (Brown, Scheflin & Whitfield, 1999). Memory of the trauma persists both as an explicit, narrative memory and an implicit, behavioral and somatic memory. While these clinical findings often evolve in the order shown in Figure 1 below, they may also evolve in a different sequence. Working through these phases over time in the process of recovering the narrative memory strengthens recovery by decreasing dissociation and leading to a sense of mastery over the traumatic experience (Brown, Scheflin & Whitfield, 1999).

*Working through these stages as they occurred decreased dissociation and led to a sense of mastery over the trauma.

**Clinical findings are from Davies & Frawley 1994, Whitfield 1995b, 1997c, 1998c, and other cited references, and all may be manifestations of PTSD. Triggering events commonly initiate these kinds of memory (Whitfield, 1995b). These clinical findings tend to progress from being vague to clearer.

***These clinical findings may occur in different sequences, e.g., #2 may be the initial experience, then skip to # 5, and then continue as # 6 and # 7.

Plaintiff has Not Shown External Evidence of CSA

The "false memory" defense usually includes strong statements that the plaintiff has not shown direct (external or "hard") evidence that the abuse actually happened. The plaintiffs are usually criticized for not having eyewitness testimony, physical findings (such as scars), or other evidence that may appear in a medical record, photos, and confessions. However, all of these are actually rare in CSA cases (Briere, 1996; Brown, et al, 1997; Whitfield, 1995b, 1998c).

Circumstantial evidence may be present though. This may include, for example, the presence of post-traumatic stress disorder (PTSD) without another obvious traumatic cause (Rowan & Foy, 1993) or other common effects of child sexual abuse, which the legal system may not understand (Whitfield, 1997b, 1998c). If the belief system of the judge or jury leans in the "false memory" direction, it may be difficult to convince them that the abuse happened without overwhelming evidence.

Some courts, such as in the case of Crook v. Murphy (1994; Yule, 1994), have allowed circumstantial or indirect evidence that, taken as a whole, helps to show that the plaintiff was sexually abused as a child. This may be a different kind of circumstantial evidence than some courts are used to considering and admitting. It includes clinical findings that a therapist may have observed, recorded, and accumulated during evaluation and therapy that may also include information concerning internal corroboration of traumatic memory and consistency (for a discussion of internal corroboration, see Terr, 1994; Whitfield, 1997c, 1998c).

This kind of circumstantial evidence may end up suggesting that the accused person(s) committed the offense. Nonetheless, it is circumstantial evidence, which is accepted in most states as being equal to or as strong as direct evidence for indicating that a crime such as child abuse happened. Most courts may instruct the jury regarding this: "The law makes no distinction between direct and circumstantial evidence as to the degree of proof. Each is respected for such convincing force as it may carry." (See details of circumstantial or internal corroboration in Whitfield 1997c; 1998c.)

Hire and Use a "False Memory"/ "FMS" Advocating Expert Witness

The defendant hires an "expert" witness who is often on the FMSF board, a fact frequently not mentioned on their resume. In their testimony they tend to make vague claims as to the effects of CSA. They are often not clinicians and have frequently published commentary or opinions on trauma and memory that are not consistent with the research. They tend to claim that they know the "true science" of CSA and memory, when instead they are actually presenting their own pseudoscientific version or interpretation of the published evidence (or a version from the FMSF). Some have been questioned as to their ethics (see Crook & Dean, 1999a, 1999b), or the obvious bias in their writings (e.g., see Wakefield & Underwager 1993; Whitfield 1995b; Dallam, 1999). At times some of these advocates for "fms" have sued those who publically disagree with them or with whom they are otherwise in conflict (Legg, 1997; Singer & Ofshe v. American Psychological Association, et al, 1992, 1993, 1994a, 1994b; Underwager & Wakefield v. Salter, 1994). Still others have been disqualified from testifying as expert witnesses for the defense because of their inadequate qualifications (see examples in Whitfield, 1995b) or admonished for their inappropriate behavior (see examples in Peterson, 1990).

Screening the Expert Witness. How can a judge determine who is acceptable as an expert witness in these kinds of cases? An important question to consider asking before accepting such an expert witness might be, "Does the proposed witness understand the clinical evolution of dissociative/traumatic amnesia, PTSD, and dissociative disorders as presented in the DSM-IV and elsewhere?" An affirmative answer and demonstration of such an understanding would speak in favor of accepting the person as an expert witness (Whitfield, 1997b).

Another useful screening question may be, "What data-based research or writing have you published on traumatic memory, as contrasted with ordinary or normal memory?" If proposed experts have published only their opinions and comments on what they imagine or think traumatic memory is, and their statements lack clinical or scientific merit, this may argue against accepting them as expert witnesses. The judge may ask to examine a copy of their articles on traumatic memory and, if in doubt, have an expert on trauma psychology provide an opinion as well. By contrast, having published scholarly articles on traumatic memory in the clinical or scientific literature that have been widely accepted by trauma psychologists would speak in favor of accepting a person as an expert witness. A final question is, "What clinical experience do you have in providing treatment to survivors of child sexual abuse or sex offenders concerning their long term recovery?" If they have little or no clinical experience, it is unlikely that they will have the full knowledge and experience required to provide reliable or valid testimony with respect to these issues.

In summary, if a proposed expert witness answers yes to the first question and demonstrates a clear understanding of traumatic amnesia, PTSD, and dissociative disorders; has demonstrated an accurate understanding of traumatic memory by publishing scholarly articles or books, and has specialized clinical experience in helping these special populations, he or she is more likely to provide accurate and helpful information to the trier-of-fact. One way to save court time and expenses for both sides and to avoid this kind of bias is to have the court hire a neutral clinical evaluator who has expertise and extensive experience in treating traumatized populations (Lazo, 1995). Defense attorneys in these cases can be expected to protest, but if appropriate, under the federal rules of evidence, the decision of whether to appoint an expert witness for the court is within the judge's discretion.

Inappropriately Introduce Extreme Situations of Satanic Ritual Abuse, Alien Abduction, and "Past Life" Experience

False memory advocates often introduce the notion of extreme situations, such as satanic ritual abuse, alien abduction, and "past lives" and then say that, "If you believe these, I guess you will believe 'repressed memories' or the like, too." This intrusion into the deposition or court record is nearly always of their own making and is, therefore, inappropriate when this is not part of their history. In fact, in and out of court, this smokescreen notion is usually another of their diversionary tactics.

Regularly Take Quotes and Citations Out of Context

False memory advocates regularly juxtapose quotes and citations out of context in their media packets, quotes, legal briefs and other writings with irrelevant, contrived, propagandistic, and/or generalized pro-"false memory" information in a hoped-for convincing effect. They can often be challenged on this inappropriate and unscientific pattern. A case example of this occurred in the 1996 lawsuit of Pamela and Peter Freyd v. Charles Whitfield for alleged "defamation," which judged in favor of Whitfield (Legg, 1997). During the Freyds' deposition of Whitfield, they handed him a page of brief quotes or "snippets" that they had selected from the position papers on memory of several professional organizations, such as the American Psychiatric and Psychological Associations, and asked for his opinion about them. He responded by saying that these were all statements taken out of context from these much longer position papers. So that he could comment, he asked to see the full paper for each one, which they were unable to provide. He objected on the record to their inappropriate and inaccurate use of these documents. They did not pursue this line of questioning.

Try to Use Biased Articles and/or Opinions

In a similar way, in an attempt to discredit and invalidate the plaintiff and witnesses and anyone who may disagree with them (in or outside of court), false memory advocates try to use biased articles and/or opinions. They often use their own published writing wherein they distort the science of the effects of CSA (Brown, Scheflin & Whitfield, 1999; Pope, 1995; Pope & Brown, 1996). For example, in trying to show that all traumas induce only remembering but not forgetting, Pope, et al (1998) reported their own selection of 63 research studies on trauma with a pool of over 10,000 victims of various types of trauma, including accidents, natural disasters, wars, etc., none of which described any clear cases of dissociative amnesia. However, this report contained several scientific errors, such as: 1) in 39 of their 63 analyzed studies, amnesia was not addressed, 2) in 2 studies amnesia is not reported in the results, 3) 19 studies actually support the reality of dissociative (traumatic) amnesia, 4) 2 studies report injury-specific amnesia only, and 5) 1 study is on flashbulb memory (i.e., memory of a sudden traumatic, often public event) of the Challenger explosion (Brown, Scheflin & Whitfield, 1999).

Furthermore, besides featuring mostly public events only, their selected 63 studies did not involve the hidden abuse of a child or adolescent by a primary caregiver. There is now substantial evidence that this type of betrayal trauma is more threatening because the victim is simultaneously abused by, and dependent upon, the perpetrator (J. Freyd, 1996). Oftentimes, the non-offending spouse or other parent figure does not protect the child. Because the 63 studies do not involve private childhood sexual abuse, Pope and Hudson (1995) did not include them in their review of the relevant literature on repression. Had Pope, et al (1998) been more discerning, appropriate or complete in their selection from the available literature, they would have found 68 more data-based reports which showed that dissociative amnesia is a finding in every one of these studies of the effects of CSA (Brown, Scheflin & Whitfield, 1999). In their conclusions about this article Brown, Scheflin & Whitfield, (1999) said, "In our opinion, based upon the prevailing scientific data, the fact that the majority of people remember certain traumas does not negate the fact that a significant minority do not remember, and that dissociated amnesia, or repressed memory, for sexual abuse is a commonly observed phenomenon in some individuals across virtually all of the research that has addressed the issue" (p. 32).

Misinterpret the Effects of Trauma

The "false memory" advocates usually manifest a poor understanding and interpretation of the effects of trauma, especially of child sexual abuse, which they regularly introduce as a strategy into their defense. They can be challenged on these as well from the vast published reports and knowledge about the effects of CSA (e.g., Briere, 1992, 1996; Brown, Scheflin & Whitfield, 1999; Brown, Scheflin, & Hammond, 1997; Chu, 1998; Courtois, 1989, 1999; Felitti, et al, 1998; Herman, 1992; McCauley, et al, 1997; Whitfield, 1995b, 1997c; Berliner & Elliott, 2001; Brown, this issue).

Negate Dissociative Amnesia

False memory advocates regularly use another defense strategy wherein they try to confuse dissociative (i.e., traumatic) amnesia with their own version of it, which they commonly call "repression." They then claim that repression does not exist. They try to invalidate or exclude research and data on the existence of dissociative/traumatic amnesia and other documented findings in the effects of trauma. The reality of dissociative amnesia has been the primary target of the "false memory" movement since its existence, although its spokespeople have shrewdly tried to shift their focus over time (Brown, Scheflin & Whitfield, 1999). However, the science shows that the evidence for its existence is strong, is peer reviewed, and meets Daubert v. Merrell Dow Pharmaceuticals (1993) standards, depending on the individual court's interpretation. The science shows that traumatic amnesia is an authentic and common part of denied and unprocessed trauma (see American Psychiatric Association, 1994; Brown, et al, l997; Brown, Scheflin & Whitfield 1999; Scheflin & Brown, l996; Whitfield, 1997a, 1997b).

Claim "Childhood Amnesia" When Accuser Has Early Memories

Some defense lawyers will also hire "false memory" advocating expert witnesses to try to support a "childhood amnesia" defense (also called "infantile amnesia"). Here, "fms" advocates claim that a person cannot remember any event before 3 or 4 years of age, much less remember one or more traumas. The reason, they claim, is that the very young child's brain is too immature or insufficiently developed to be able to have memories of such events. Once again, they cite experiments and studies on normal memory and try to generalize them, often inappropriately, to traumatic memory. The available data from published case reports based on careful clinical observation, as well as data from numerous survey studies, indicate that this defense is not hard and fast; indeed, it is clearly untrue in many cases, as indicated below.

For example, in a prospective study, Burgess, Hartman, and Baker (1995) evaluated and monitored 19 children who had been sexually abused (corroborated in court) by day-care staff. Their ages at the time of the abuse ranged from 3 months to 4.5 years (M = 2.5 years). Three independent clinicians evaluated each child just after the abuse became evident and then every 5 years thereafter. At each evaluation, they checked for four kinds of memory: cognitive (or verbal), behavioral, visual, and somatic. The most common kind of nonverbal memory manifested was somatic (100%), followed by behavioral (82%) and visual (59%). Eleven (58%) of the children always verbally (cognitively) remembered the abuse, 5 (26%) partially remembered, and 3 (16%) totally forgot experiencing any abuse. In a separate prospective study of 12 children of similar ages, Burgess and Hartman (1996) reported similar results.

In Williams' (1994) follow-up study of 129 women who had childhood sexual abuse documented in emergency room medical records, 5 of 11 women (45%), who were under 4 years old at the time of being sexually abused, remembered the abuse. If Williams' data are combined with those from Burgess et al. described above, they result in a total of 42 very young children (i.e., less than 4 to 4.5 years of age) studied prospectively, of whom 23 (55%) later remembered and 19 (45%) were amnestic for sexual abuse that was also shown by direct evidence (Burgess, et al., 1995; Williams, 1994).

Other studies have found similar results (Bauer, 1996; Bruhn, 1990; Hewitt, 1994; Terr, 1991, 1994). In fact, after extensive research, Bauer concludes that many very young children (i.e., 2-years old and younger) remember certain events for long durations (Bauer, 1996). Because language skills are not fully developed at these very young ages, abused children are not usually able to talk about their traumatic experiences in the way that an older person would. For example, in the Oklahoma City bombing, most of the traumatized survivors were supported by their family and peers when they reported what happened to them and how the experience affected them. They were able to more effectively consolidate their traumatic memories into memory storage through a process that memory researchers call rehearsal. Trauma clinicians explain that talking about (or rehearsing) a traumatic event or experience is the best way to help anyone remember the event. This sequence is shown in the following diagram (see Figure 2) (Brown, Scheflin & Whitfield, 1999; Whitfield, 1997b, 1997c).

Figure 2. The Process of Memory Retrieval

 

	Encode
IN	Experience Rehearsal*	Retrieval	OUT
	Storage
*Threats, dissociation and lack of language skills block rehearsal.

Young children who are traumatized at a preverbal stage of development are at a significant disadvantage because they are not able to process the experience by talking about or rehearsing it (Terr, 1991, 1994; Whitfield, 1995b). This disadvantage is compounded by the fact that, in most cases of child sexual abuse, the offender threatened the child with serious harm if he or she were to disclose the abuse, as shown in Figure 2 (Emrick, 1994, 1996; D.T. Roys, personal communication, November 1997; Whitfield, 1998b).

Claim Other Reasons Why They Were Accused

Using this strategy, the defendant claims or proposes other reasons why they were accused, exposed, or why they believe that the plaintiff brought suit (e.g., that the accuser was angry at the defendant for another reason) (Roseman, et al, 1997). It is also common for the defense to argue that the victim has a motive to lie. This claim can sometimes be rebutted simply by arguing that it makes no logical sense. W. Murphy (personal communication, October 1997) said, "I can sometimes stretch that argument by saying, "If this victim wanted to be vengeful and falsely accuse this person of a crime, why would she choose rape since it is the most painful, stigmatizing and revictimizing process to endure. She could have made it a lot easier on herself if she claimed that he hit her, stole from her, etc."

Propose Other Explanations for Accuser's Symptoms

The accused often proposes other explanations for the accuser's symptoms, such as having an unhappy marriage, job problems, or that they are "mentally ill." When the alleged abuser's defense claims there are other explanations for the victim's symptoms, the plaintiffs can argue to the jury that they, the jury, have also been divorced, had a loved one die, etc., and that it is painful, but it doesn't look like this victim's situation, and thus the argument does not make sense (W. Murphy, personal communication, October 1997).

Try to Combine "Common Sense" with a "Law of Probability"

The accused often also tries to combine what they may call "common sense" with a "law of probability" that the defendant could not have abused the plaintiff (Roseman, et al, l997). Drawing from the first and last defense items (# 1 above and # 22 below), the first "common sense" ploy is to say that for such a "fine family" here and the "upstanding" person that the accused is, child abuse of any kind, much less molestation, just "makes no sense."

A second "common sense" strategy is to take each bit of evidence presented by the victim, examine it in isolation, and then show how it (alone) is "improbable." This maneuver takes each piece of evidence and tries to negate it individually, instead of weighing the total evidence. For example, a man accused of sexually abusing his daughter as a child argued that since his wife "slept very lightly," which she agreed to in her testimony, she would have known it if he had done it, and he argued several other such details similarly. However, the totality of the evidence showed that he had likely sexually abused his daughter. Criminal and civil justice is about sorting out and ruling on the totality of the weight of evidence, not on isolated details of common sense or odds-making (Brown, Scheflin & Whitfield, 1999; Roseman, et al, l997). W. Murphy (personal communication, October 1997) suggests: "Compare the 'pieces' argument to a puzzle and argue that one puzzle piece does not make a picture; the jury has a responsibility to view the pieces together, and they took an oath to do that. In the same way that puzzle pieces, when put together, form only one picture, the victim's evidence points to only one conclusion."

Use Contrived Terms and Other Pseudoscientific Jargon

Accused molesters tend to use contrived terms and other pseudoscientific jargon, such as "false memory syndrome," "recovered memory therapy" or "parental alienation syndrome." These have never been established through empirical or data-based studies (Brown, et al, 1997; Brown, Scheflin & Whitfield, 1999; Whitfield, 1995b, 1997b). As mentioned above, these terms are not found in the DSM-IV or the ICD-10, and while their advocates have maneuvered and at times even promoted them in some sectors of the popular media, they are not accepted by mainstream mental health (Brown, Scheflin & Hammond, 1997; Brown, Scheflin & Whitfield, 1999; Dallam, 1999; Whitfield, 1995b).

Make Up Other Special Categories with No Scientific Support

To further their argument, exposed or accused molesters may contrive other terms or categories with no scientific support. Examples include "robust repression" vs "partial repression" to try to confuse and negate cases involving dissociative amnesia. These kinds of terms were used to try to invalidate the sexual abuse of Ross Cheit and Frank Fitzpatrick when they were children. Both had dissociative amnesia and then recovered memories of the abuse decades later, and in both cases their offender eventually confessed (Cheit, 1998, 1999, 2000; Whitfield, 1995b).

Try to Discredit Every Corroborating Witness

The accused or convicted molester often tries to discredit and impeach every corroborating witness, including other family members who have been abused. This and the other defenses are commonly used by sex offenders when they are molesting and also by supporters in and out of court (R. Emrick, cited in Whitfield, 1995b; D.T. Roys, personal communication, November 1997; Salter, 1998).

Erroneously Try to Equate Retraction with "Proof" of "False" Memory

Retractors are those who recall memories of child abuse, disclose them, and later say that they were not real, commonly claiming that a therapist or another source "implanted" the memories. Their retraction is often triggered by family pressure and/or "false memory" advocates (Brown, Scheflin & Whitfield, 1998; Scheflin & Brown, 1999; Summit, 1983; Whitfield, 1995b). They also may file malpractice lawsuits (Scheflin & Brown, 1999).

Without knowing the facts, "false memory" advocates have accepted that these retractors' "secondary" claims (the primary claim is of the trauma memory) are true. They base their assumption on their tenuous theory that the retractor was originally wrong, but is now remembering accurately. In fact, like one leg of a three-legged stool, retractor stories make up a substantial base of the conception of "fms" (the other two legs include denial by the accused or convicted molester, and a few studies on normal memory, along with a few controversial anecdotal reports) (Whitfield, 1995b, 1997b). This new reversed claim then may raise a "plausible alternative explanation" for such cases.

For at least the last decade, accused and convicted child molesters have erroneously tried to equate the common phenomenon of retraction with "proof" of "false" memory. Since 1984, Summit has clearly described his vast experience with this frequent part of the process of CSA (Summit, 1983; Whitfield, 1995b). Armstrong (1999) recently asked, "What kind of person would first accuse her parents of abuse and then declare this belief to be false and accuse her therapist of abuse? We know little of the psychology of a 'recanter,' someone whose beliefs about her own nature and that of the people she loves appear to transform so totally and then abruptly transform again" (p. 520).

The science shows some helpful findings. For example, in a study of 30 malpractice law suits by retractors against their former therapists for "implanting false memories" or "implanting DID," Scheflin and Brown (1999) found that most of the 30 had recovered their memories and/or had the diagnosis of DID made before the sued therapist had seen them. There were many other kinds of direct and circumstantial evidence in these cases. Nearly all 30 retractors had been previously given multiple co-morbid psychiatric diagnoses that are extensively reported in the clinical scientific literature to be associated with or caused by childhood trauma, especially child sexual abuse (e.g., Herman, 1992; Whitfield, 1997c, 1998c). These included: major depression (e.g., Kendler, et al, 2000), anxiety disorders (e.g., McCauley, et al, 1997), PTSD (e.g,, Rowan, Foy, Rodriguez, & Ryan, 1994), major dissociative disorders (e.g., Whitfield, 1997c), personality disorders such as borderline personality disorder (e.g., Herman, 1992), and major addictions such as chemical dependence and eating disorders (e.g., Felitti, et al, 1998; Herman, 1992; McCauley, et al, 1997). Ninety percent (27 of the 30) had a diagnosis of either DID (11 retractors) or Dissociative Disorder, Not Otherwise Stated (DD-NOS) (17 retractors) (Scheflin & Brown, 1999).

Nearly all of the therapists sued had given the retractors appropriate stage-oriented trauma treatment. In none of the 30 cases was there any mention or evidence of "recovered memory therapy" or a single-minded focus on recovering memories of abuse. Scheflin and Brown (1999) said, "…later, after encounters with pro-false memory (mis)information, the patient came to misattribute the source of his/her abuse memory to the defendant therapist and forgot that it had been self-reported, sometimes being recovered outside the context of therapy" (p. 685). In fact Scheflin and Brown (1999) found that if any false information was implanted, it likely occurred by exposure to pro-false memory sources close to or after the time of the identified therapy sessions. They said, "…in all 30 cases the plaintiff failed to report his or her vulnerability to post-therapeutic suggestive influences that might have been operative in the shaping of the retraction belief itself.…the most striking finding from our analysis was [that] the significant post-therapeutic suggestive influences associated with the development of the retraction belief could be identified in every one of the 30 cases" (p. 687).

They conclude, "In our analysis of these 30 cases, significant exposure to false memory (mis)information occurred in the great majority of the cases and had a significant impact on the progressive shaping of retraction beliefs. …What do these data tell us? That sometimes litigious patients, plaintiff attorneys, and other individuals intentionally solicit other former patients in order to influence them" (Scheflin & Brown, 1999, p. 688).

Both in and out of court, the potentially erroneous claims of retractors and their advocates had not previously been tested. While rare, at best some scientific data suggest that false memories for the gist of complex traumatic events can occur. However, these usually appear only under a specific set of conditions (i.e., from extreme interviewing wherein most of the content about abuse themes is being supplied by the interviewer and does not originate from the interviewee) (Brown, Scheflin & Whitfield, 1999). While this can happen in excessive police interrogations or in political brainwashing interrogations (Marks, 1979; Sargent, 1957; Scheflin, 1995; Scheflin & Opton, 1978), most psychotherapy is not conducted in this way (see several citations in Brown, Scheflin & Whitfield, 1999). For such an "implantation" to happen, there must be at least two conditions about the retracting person: 1) they must have a personality trait of sufficient memory suggestibility; and 2) they must be subjected to a documented extensive and rigorous pattern of systematically suggested misinformation within and across interviews. In other words, it must be demonstrated that the interviewer actually is supplying most of the content about abuse-related themes within and across sessions, and that these themes are not originating from the patient (Brown, Scheflin & Whitfield, 1999).

Evidence Criteria. In their extensive monograph Brown, Scheflin & Whitfield, (1999) stated: "In our opinion the false memory suggestion argument represents a gross overgeneralization from rather complex sources of data and has seriously misled judges in the courts. Based on a careful review of a large body of research on human suggestion effects, several reasonable conclusions can be drawn. We recommend that these conclusions be used by the courts as a set of criteria by which to evaluate the evidence in cases where allegations have been made that a false abuse-related memory has been implanted" (p. 83). In order to demonstrate this claim, they concluded that the evidence must show the criteria listed in Table 2.

In other words, the record must reflect that the great proportion of abuse-related themes are unequivocally supplied by the interviewer, and does not originate with the patient. Brown & Scheflin (1999) have seen numerous malpractice cases where a plaintiff has sued a former therapist for "implanting" abuse memories that were subsequently retracted, where the medical record consistently showed that the abuse-related content originally came from the patient, now plaintiff, either inside or outside the context of therapy. The patient subsequently as plaintiff, over and against the medical record, made the misattribution error of attributing the source of the suggestion to the therapist. Since this distinction often gets obscured, the trier-of-fact must carefully evaluate the medical record to distinguish between patient-reported abuse and therapist-suggested abuse themes.

The vulnerability to suggestive influences does not stop once the therapy has terminated. In many of these malpractice cases the plaintiff has made the logical error of alleging therapist-implanted memories of abuse that never occurred, while failing to consider the likelihood that the retraction belief is actually the product of post-therapeutic suggestive influences. Retraction beliefs are likely to be the product of post-therapeutic suggestive influences when the plaintiff has been subjected to any one or more of those influences (a-b) at the bottom of Table 2 above. Under such circumstances, the plaintiffs' complaints and recollections about alleged therapeutic malpractice may be significantly distorted, unreliable and unduly contaminated by post-therapeutic false memory influences. "Canned" plaintiff malpractice complaints, wherein the language mirrors the arguments found in popular pro false memory books, is evidence of uncritical acceptance of the suggested false memory information on the part of plaintiff.

Try to Impeach Other Witnesses or Those Who Have Filed Reports

Besides trying to discredit corroborating witnesses, the accused try to impeach other witnesses or those who have filed reports, such as therapists, child protective services, the police, and others who intervene. In depositions and during cross-examinations the defendant uses every possible strategy to make the witness or reporter look wrong.

Try to Intimidate and Impeach Plaintiff's Expert Witness

The accused molester tries to intimidate and impeach the plaintiff's expert witness with minutiae or irrelevant details that are often not within their appropriate working clinical knowledge. For example, "fms" advocate lawyer C. Barden so deposed a trauma expert by asking him many inappropriate, irrelevant or distracting questions, apparently in an effort to intimidate the witness (see Barden's deposition of Dr. van der Kolk of 12/27/96 on website www.tjcesq.com/html/van_der_Kolk_12_27.html).

Play on Our Individual and Collective Wishes and Doubts

Of all the defenses, this may be the most effective one that actual abusers use to manipulate us to believe them. We all so much want the abuse not to have happened, and so when an accused person, whether they are guilty, says that they did not do it and uses any one or a combination of the above excuses or defenses, it may activate several parts of our own inner life, including our personal wants, emotions and beliefs. The accused and/or exposed molester plays on our individual and collective wishes and doubts that an adult would sexually assault a child. It is as though we don't want to believe it, and so every bit of evidence that is presented to us, no matter how convincing, is then filtered out through the fine mesh of our beliefs and doubts. With this kind of internal pressure to disbelieve any and all evidence, our objectivity and reasoning capacities are then not open to allow us to carefully listen, consider and weigh what we hear from both sides.

Salter (1998) interviewed convicted child molesters in prison, who, with nothing else to lose, told her that their chief enablers in their enacting their crime are the "good" people who do not want to believe that crimes of child sexual abuse occur. They describe how people easily hand over their children to them. They explain that this is because most people are not suspicious, they trust others, and do not believe their children will be harmed by other adults who look attractive and act polite. A way to handle this major potential block to justice is to focus on the science, both clinical and basic, of trauma psychology and offender psychology.

Child sexual abuse is widespread and traumatic amnesia for it is common. Accused, convicted and self-confessed child molesters and their advocates have crafted a strategy that tries to negate these facts, which we can call a "false memory" defense. In this article each of the more commonly used parts of the defense have been described, and what the science indicates about them has been presented. Armed with this knowledge, survivors, their clinicians, and their attorneys will be better able to refute this defense of mostly disinformation.

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