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Ault v. Jasko8/31/1994
d yet retains no memory of the incident), and by sheer mental shock where there is little or no physical injury, such as a war veteran who represses memories of battle even though he or she personally was not injured. Id. at 133. Thus, undeniably there are also adult survivors of childhood sexual abuse who have repressed memories of those experiences due, for example, to severe psychological shock.
It is widely accepted by scientists that children are more likely to repress memories of sexual abuse when that abuse occurs under certain circumstances. For instance, experts tend to agree that a child who is sexually abused at an early age has a greater likelihood of repressing the memory than a child who is abusesat an older age. Id. at 137. Likewise, children who experience a particularly violent or intrusive type of abuse and those who are abused over a prolonged period of time are more likely to repress. Id.
But while scientists generally agree that memories can be repressed, admittedly there are few empirical data demonstrating exactly what occurs during the three stages of memory regarding those memories which have been repressed. Id. at 133. In fact, there is little agreement among scientists about whether a repressed memory can be retrieved and, if it can, whether the memory retrieved is an accurate product. Id. at 154-155.
The reason for the disagreement in the psychotherapeutic community can better be understood by examining the manner in which repressed memories are retrieved. Recovered memories can be classified broadly into two categories: those emerging spontaneously and those retrieved with the aid of a professional, such as a psychologist or psychoanalyst. Id. at 137-138. Kanovitz, Hypnotic Memories and Civil Sexual Abuse Trials (1992), 45 Vanderbilt L.Rev. 1185, 1216. While I have concerns about the reliability of recovered memories in both categories, it is the latter one that I especially want to focus on because the plaintiff in this case claims to have recovered memories of childhood sexual abuse after having consulted a therapist. Accordingly, my principal concern with the majority's opinion is that it makes no distinction between memories recovered naturally and those retrieved by psychotherapeutic professionals. Further, the majority cites no hard science in support of its position.
The instant case is typical of the type of repressed memory cases confronting our courts. The patient, who most often is a woman, seeks treatment for bulimia or some other psychological disorder. Sleeping Memories, supra, at 139. See, also, Loftus & Rosenwald, Buried Memories/Shattered Lives (Nov.1993), 79 A.B.A.J. 70, 71. The therapist expresses to the patient that her condition may be the result of a traumatic event in her past of which she has repressed all memory because it is too painful, and may even suggest that the patient's behavior is typical of someone who was sexually abused as a child. Sleeping Memories, supra, at 158-159. The therapist then will assist the patient in recalling her memory so that she can better deal with her disorder. Id. at 139. In helping patients recover repressed memories, therapists employ various memory enhancement techniques such as hypnosis, the drug sodium amytal, and dream analysis. Buried Memories/Shattered Lives, supra, at 72-73.
But a growing body of evidence indicates that many of these "repressed" memories of sexual abuse may be implanted in patients' minds, unwittingly or otherwise, by therapists' suggestions. Hypnotic Memories, supra, at 1218. The problem is compounded by the fact that therapists have little, if anything, by way of guidelines to follow and administer these techniques with little uniformity. S
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