Friday, June 26, 2009



The ‘Boston Globe’ reports that the Supreme Judicial Court of Massachusetts has agreed to hear former priest Paul Shanley’s direct appeal of a lower court refusal to grant his Motion for a new trial.

This is actually important news far beyond the scope of Shanley’s personal legal toils and travails. He was convicted in February 2005 of "digitally raping" a 7-year-old; after the one plaintiff whom the DA finally dared to put up delivered a ‘recovered memory’ that differed substantially from the memories of other witnesses. After the trial, in a remarkable by-the-by, a juror mentioned that although the jury had a difficult time coming to its finding, the ultimately deciding factor was that if they didn’t then it would send ‘the wrong message’.

In other words, Shanley’s fate ultimately came down to social and political issues beyond the fact of his own provable guilt, which otherwise had not seemed so clear to the jury. Ach. Such is the fate of those who somehow become ‘symbols’ in Our new, symbolic national order.*

Shanley's record is not that of a monster. A vigorous and remarkably active ‘street priest’ in his younger days in the 1970s, his chosen métier was ‘street kids’. He was gay, although that means little as it stands, given the many variations on that theme. At some point in the 1980s, while a pastor at a well-to-do parish in the metro area, he allegedly called youths between the age of 6-12 out of class, raped or indecently assaulted them, and returned them to class. It was not until 2002 that several of those individuals, now 20 or so years older, suddenly ‘remembered’ it all.

That year, on January 2, the ‘Globe’ had initiated the third (or fourth, depending on how you count) phase of the priest sex-abuse campaigns. It was a new-media dream: salacious and outrageous actions alleged; a hierarchy that apparently had tried to deal with matters by taking actions along a spectrum from ‘get-him-help’ to outright ‘cover-up’; a Cardinal-Archbishop who was a self-assured Macher in local, national and Vatican politics and affairs; and an Archdiocese (many of them, ultimately) with an awful lot of money.

Hiding, I would add, in the deeper background were a dark gaggle of other elements: a national government bent upon preventive war that did not wish a replay of the early 1980s Catholic hierarchy’s influential support for nuclear disarmament and against military adventure; an engorged Fundamentalism now at the zenith of its Ascendancy and looking to supplant the Catholic Church’s position and stature in national affairs; a feminism that was looking to place its constituents into officially ‘male’ positions in the priesthood and that was possessed of an abiding resentment at the Church’s refusal to officially support the feminist abortion demands; an already-established sex-offender mania that had merged with a ‘child-abuse’ anxiety of substantial proportions; and a priesthood that appeared to be comprised of a very large percentage of gays, closeted or ‘out’.

The Church in the United States faced opponents without but also within, where ‘liberals’ were pressing for both recognition of abortion and of female priests, and ‘traditionalists’ were fuming about ‘gays’ in the priesthood and the hierarchy’s ‘softness’ and ‘liberalism’ on key issues. The ‘liberals’ were looking for a best-case (not to say fantasized) ‘new’ Church, and the ‘traditionalists’ were looking for a best-case (equally fantasized) return to the ‘old’ Church.

Anyhoo, in that year, by remarkable coincidence, the several former-youths suddenly ‘remembered’ their abuse, which they had apparently ‘repressed’, individually and collectively.

After exhaustive calculation and some last-minute re-arranging, the State chose to bring the case of only one of the rememberers forward, and it was on the gravamen of his case that Shanley was convicted in 2005. One might wonder about such a coincidence, but in modern victimist jurispraxis it is considered bad-form, and actually an overt act of re-victimizing, to question or even notice such ‘coincidences’. It is simply not done.

The key to the whole Appeal now appears to be this matter of ‘repressed memory’. The State and the victims had insisted and still do insist that the recently ‘discovered’ phenomenon of ‘repressed memory’ is valid, and thus admissible as evidence. This results in something most uncomfortably akin to ‘spectral evidence’.

We recall that in the Salem Witch Trials, the only ‘evidence’ was that the accusers – young girls – told the Court that they (and only they) could see the witchy form and actions of the accused (mostly, in the beginning, elderly single females). Predisposed – indeed required – by theology and religion to admit the existence of evil spirits active in this world and, logically, of the possibility of human connivance with them, the Court then attempted to blend this layer of belief with the principles of a law and jurisprudence struggling rather successfully to emerge from the Medieval mishmash of superstition into the hard, bright light of provable fact and due process.

The Justices did so – catastrophically – by accepting the validity of the ‘spectral evidence’. They wound up making such a lethal (many died in custody or on the gallows) hash that a few months later those Justices who had not resigned in disgust quietly destroyed the records of the trials after the Governor, on the orders of the Crown, stopped the trials and suppressed the use of ‘spectral evidence’. When the trials started up again for a final time, with no ‘spectral evidence’, the acquittal rate – by remarkable coincidence – skyrocketed and shortly thereafter the whole witch trial process was stopped permanently.

It was not a happy chapter in the annals of American law, but the blood of the condemned served to purchase hard-won advances in American evidentiary rules and due-process.

Fast-forward to Our own ultra-modern century (or so it seemed it would be in the 1990s and even in 2002). Certain scientists, or at least ‘experts’, all proud to be ‘advocates’, reported the major new discovery that a victim of an outrageous alleged act might indeed be so ‘traumatized’ that she (almost always ‘she’) would ‘forget’ the incident; her mind would bury it, repress it, and there it would lie, until at some point, for whatever congeries of reasons or catalysts, the said ‘memory’ would suddenly pop back to the surface of consciousness, almost like Titanic suddenly re-floating herself into the sea-lanes off Cape Race on a fine day decades after her ‘trauma’.

Furthermore, it was asserted that – sort of like a computer file – having been ‘un-accessed’ all these years, the ‘memory’ would be in almost perfect ‘shape’, hence accurate as an original photo or recording, and hence not only admissible as evidence but irrefutable in its perfection … and its accuracy. The victim-witness, therefore, by telling her ‘story’ as suddenly ‘remembered’, could take judge and jury on an almost time-machine-like journey back to the moment of the incident itself. No questions need be asked. Titanic would emerge from the depths whole and intact, utterly seaworthy, pristine as the moment before her ‘trauma’.

We live, let Us admit, in amazing times.

But let Us not then imagine that We should abandon all effort to kick tires. The times may be amazing; the tires probably not so much.

Frederick Crews, reviewing the book “Remembering Trauma” by the Harvard psychology professor Richard J. McNally, (‘The Trauma Trap’, The New York Review of Books, March 11, 2004, pp.37-40) recaps the key issues that militate against this ‘new discovery’ of repressed or recovered memory. What effects does psychological trauma have on memory? Is it possible that the species would have survived if it was not able to recall dangerous experiences (and thus avoid them in the future)? Can a ‘memory’ leave a discoverable trace in the chemistry or structure of the brain such that the actual presence of the ‘memory’ can be independently confirmed by someone other than the rememberer? (Outside of ‘Star Trek’ medical science or the Vulcan mind-meld?)

Does anybody really want to bear in mind that after their ‘rapists’ were put in prison and their lives rather comprehensively destroyed, children ‘raped’ during the preschool mania of the 1980s were discovered, years later, to be intact?

Even Holocaust survivors, comprehensively interviewed and evaluated, remembered their trauma; “traumatic experiences may not always remain in the forefront of memory, but unlike ‘repressed’ ones, they can be readily called to mind again”.

As is so often sadly the case in times of public mania, even the most responsible institutions fail Us. In 1999 the American Psychiatric Association gave a prestigious award in legal psychiatry to a book that – among other things – not only supported ‘repressed memory’, but asserted the existence of ritual-abuse cults and urged the admissibility of hypnotically-retrieved memories in court (although one such patient produced through such ‘therapy’ a clear and distinct memory of her father murdering a person who, upon investigation, was found never to have existed).

Further, Crews outlines how the Association has continually played with its diagnostic criteria in its master manual – the “Diagnostic and Statistical Manual” or DSM – in order to accommodate the ‘possibility’ of such non-physical maladies.

The American Psychological Association, under pressure from its many ‘therapist’ and ‘clinician’ members, refuses to issue a list of recommended therapies for traumatized individuals, for fear of either having to approve outright whackery (hypnotic regression, touch therapy, past lives, etc.) or, by excluding a therapy, depriving some members of their livelihood. We recall that this organization also had military psychologists on its military-psychology committee, and when doubts were raised about organization members’ participation in torture, the military-psychologists were assigned to ‘investigate’ and reported back that everything was just ducky, thank you.

Much like the American Bar Association has a military-law committee comprised largely of – wait for it – military lawyers, all of whom seem rather certain that military justice works just fine, thank ya vurry mutch. Go ahead, let yourself laugh – had more Germans laughed and not kept a straight face in the late-‘20s and early-‘30s, the little brute with the funny mustache might not have gone as far as he did.

So for example, one group of serious lab researchers note that their animals seem to recall any incident that happens to them accompanied by strong negative emotions (such as electrical shock), and will avoid what they perceive to be the source of the shock quite reliably from then on. Another group notes that some negative stimuli might be somehow suppressed in the interests of the animal’s better functioning. Another group speculates that if a memory is not often recalled, it might actually retain more of its original integrity (another question altogether, they admit) than a memory constantly accessed; the theory being that ‘memories’ are similar to genetic division: the more you do it, the greater the chance of a mistake, so conversely, the less you do it … and so on. None of the very reputable studies and scientific research teams were ‘advocating’ for anything and in the matter of human repressed memory they drew no conclusions, especially since – on top of everything else – they were experimenting with rats and there is no guarantee as to how memory works in human brains.

The scientific justification for recovered memory got a tad tendentious, once you got beyond the anecdotal ‘stories’. One researcher associated with “The California School of Professional Psychology” (is there a school for un-professional psychology?) has put out a longish paper**, chock full of proper style and usage. The best she can come up with is that repressed memory is ‘possible’, and that there’s no reason to assume that such a memory is any less reliable than a ‘continuous’ memory, i.e. one that you haven’t repressed. How it’s possible to distinguish between a false memory and an actual one; how it’s possible to know a repressed memory is ‘there’ if the patient doesn’t recall it; how it’s possible to study scientifically something that’s non-material and - let’s face it – pretty much ‘spectral’; how you can equate an adequate level of ‘psychological’ accuracy with the far more stringent and exacting level of accuracy required in a court of civil – let alone criminal – law … she’s not quite up to tackling those.

I’m not quite sure how far all this is beyond medieval theologians trading blows over how many angels can dance on the head of a pin or Chinese mandarins studying the unicorn to learn about the horse. So I’m not seeing the ‘progress’ here, let alone the ‘science’.

And in addition, it must – must – be presumed that a rememberer would never purposely lie, for money or revenge or just for laffs, say. In which case, We really are dealing with unicorns and not with horses. If you get my drift.

The basic gambit seems to be: if it’s been ‘proven scientifically’ that a ‘traumatizing’ (thus ‘negative emotional’) event can make you remember more vividly than anything else; and if that ‘memory’, is ‘repressed’; and if that ‘memory’, if not accessed, would actually be in better shape than your usual ‘remembered memories’ … well then, if there’s a perfectly scientifically established ‘possibility’ that all of these things might come together and create an utterly reliable, evidentiary-grade, ‘recovered memory’, then ‘repressed memory’ or ‘recovered memory’ is a ‘scientific fact’.

Even if its probablity is somewhere in the neighborhood of a gazillion to one, at the very best.

Even if all of the above works – and it don’t hardly – then there’s the question of whether you’re dealing with the type of hard science that sent man to the moon or the type of ‘sensitive’ science that somehow seems to have developed alongside the influence of Second Wave Feminism and victimism. The latter has less evidentiary value than the term ‘science’ would normally lead one to presume, but then again I’d say that you’re dealing here with ‘revolutionary science’, and the job of ‘revolutionary science’ is to ‘prove’ the revolution. Can you say 'Lysenko'?

And, after all, you don’t want to get too ‘logical’ and get in the way of a ‘good’ cause. Do you want to let an abstraction like ‘proof’ prevent the rescue necessary in such an emergency? Do you want to let a perpetrator escape? And surely achieving ‘closure’ and ‘preventing more outrage’ is as ‘good’ an objective as stamping out demonic activity in the world. Surely.

I haven’t seen any of the Court documents for this new round. I’m thinking that the Appeal is based on error coram nobis, a Court’s reconsideration on the basis that the original Decision or conviction was based on faulty information or a fraud committed upon the Court. There has been a steady and substantive scientific literature dealing with the gross difficulties of ‘recovered memory’ theory amd the whole sex-offender thing in general.***

In the logic of evolutionary survival, the mind appears more liable to ‘remember’ something seriously ‘negative’ rather than to forget it. And if under overwhelming negative pressure a ‘memory’ is indeed encoded, then there is every possibility that it will be deformed by that pressure when it is laid down in the memory. And that upon being ‘recovered’, rising to consciousness, there is every possibility that it will be somehow impacted by the layers of will, desire, and consciousness through which it will ‘pass’ on its route to the ‘surface’, and even by the capacity or incapacities of the host mind to process information in the first place.

And beyond that, there is the always-classic scientific knowledge – accepted even by prosecutors – that ‘eyewitness testimony, while the most ‘convincing’ to a jury, is hugely shot through with the potential for mistakes. Any two ‘eyewitnesses’ will differ in what they are ‘sure’ that they ‘saw’. And that possibility is hugely increased with the passage of time – especially decades.

Since all of this information was public and well-known before the ‘repressed memory’ cases, then perhaps the defense is going to go the route of claiming that the Court was – to be most polite about it – misinformed. Surely, in many of the sex-offense cases, even the Supreme Court has simply refused to ‘notice’ even the government’s own statistics as to the lower recidivism and dangerousness rates among such offenders as a group.

But there is a massive body of scientific and legal research and study indicating that many of the most ‘popular’ laws in this overall mania were passed on the basis of incorrect information or without considering the large body of professional material that contradicts the most favored presumptions on which the laws are based; and that many of even the Supreme Court’s Decisions in the assorted cases having to do with sexual and domestic violence are based on incomprehensibly one-sided selectivity as to what ‘facts’ and ‘knowledge’ are accepted as valid. Selectivity in facts to produce a desired outcome … sounds familiar. Can We say ‘Iraq’?

We have to stop this monstrously baaad habit of accepting uncritically ‘selective facts’; this hugely dangerous propensity, so favored by assorted Advocacies in stampeding public opinion into supporting – or at least acquiescing in – their demanded agendas and ‘reforms’, has migrated to foreign affairs (‘Iraq’ again) and the waging of a type of war that was condemned by the free and victorious nations at Nuremberg.

And it is no coincidence that that type of war, waged by a government authority that refuses to see any but the ‘facts’ most compatible with its own dreams and desires, results in military failure, at huge cost. And full-spectrum cost: in foreign credibility, militarily, economically, physically, ethically, morally. Think of what the Pearl Harbor ‘victory’ did to the Japanese.

I wonder too if We are ready to see exactly how dangerous the ‘revolutionary’ metaphor and mindset and agenda is, not only to Our democratic politics but to Our law. Recall how Felix Dzherzinsky put it: “The Cheka does not judge and it does not investigate: it strikes.” The earliest Soviet equivalent of the FBI, the grand-daddy of the KGB, saw itself not as a ‘law enforcement’ agency, but as the Sword and the Shield of the Revolution: it would thwart and strike at any designated enemy of the Revolution ‘by any means necessary’. It was not there to enforce any law or any justice except the law of the Revolution and of revolutionary justice. And the law of Revolution is that you may never oppose the Revolution. And the law of revolutionary justice is that if you have opposed the Revolution – or we even think that you have, or that you might – then we will strike you down … that is what Soviet ‘law enforcement’ was for.

Revolutionary law is ‘the law at war’. Revolutionary justice is simply the summary elimination of anybody who opposes the Revolution. (The neocon supporters of the Iraq occupation and of torture and preventative-detention refer now to ‘combat law’ or the ‘law at war’, as if they had just thought it up, and as if it were as American as apple-pie.)

Now imagine, as even Gerald Ford acknowledged, that the country has been (and for decades) in the throes of several simultaneous ‘revolutions’. And that the advocates of the various revolutions see themselves, and comport themselves, as ‘revolutionaries’. There is fierce urgency, an unbending and elite and exclusive purity, an implacable hostility to any opposition or doubt or dissent, in the revolutionary mind and modus. These are not characteristics that best suit one for participation in democratic politics, nor is the polity grounded in the American Constitution going to be a suitable vessel for the revolutionaries’ efforts. If you get my drift.

Lincoln himself resisted the fierce urgencies of the abolitionists, and was roundly condemned by them. He saw that no matter how evil slavery was, to simply turn the country around on a dime in 1861 would quickly destroy whatever hope there was of keeping the country together. Had he espoused the abolitionist’s position in 1860 – a position not shared by the majority of citizens even in the North – he would not even have reached the Presidency.

Nor can We accept with a resigned smile the claim – now being floated – that ‘it takes irrational people to get rational things done’. The past decades of calculated or frenzied irrationality, in no matter how ‘good’ a cause, have wreaked great havoc.

And the fact that it is mostly down below the waterline, out of sight to the average person, means as little as did the relative ‘invisibility’ of Titanic’s damage … time would tell, and by then it would be too late. More on all this as things go on.

As I’ve said, the doings of the domestic and sexual violence legislation have resulted in deep, structural damage to American law and polity. That has to be corrected. We are running out of time. That is the fierce urgency of now.


*See also Alexander Cockburn’s article “Back to Salem’ on Counterpunch on February 19, 2005 here. ·

**Constance Dalenberg, ‘Recovered Memory and the Daubert Criteria’, in “Trauma, Violence, & Abuse”, Vol. 7, No. 4, October 2006, pp. 274-310. ·

*** See, for example, the entire 600 page double issue of “Psychiatry, Public Policy, and Law”, Vol. 4, Nos. 1-2, March-June 1998. This is a hefty collection of professional articles from law and psychiatry and public policy experts, all of them tackling one or another of the relevant problems in the sex-offense and domestic-violence realms. Note that it was compiled in 1998, by which time all of the core problems and their projected consequences were evident to the professions involved.

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