Saturday, January 30, 2010


I had concluded in my earlier Post on the Shanley case that the SJC could not have decided otherwise given the fact that the diagnosis of ‘Dissociative Amnesia’ had been included in the DSM (although it may be revised – perhaps ‘revised out of’ – forthcoming editions).

It is a week later and I have been able to do some further research*. As best I can make out, courts – including the US Supreme Court – have indeed declined to accept inclusion in the DSM as proof of ‘scientific acceptance of a theory’.

A Minnesota case (involving a Catholic priest accused of sexual abuse by a rememberer much later) offers some clear thought: the case is John Doe76C v. Archdiocese of St. Paul and Minneapolis, No. 62-C9-06-003962, Minn. 2nd Judicial District, dated Dec. 8, 2009.

The judge excluded expert testimony based on repressed and recovered memories. (One of the Experts appearing for repressed-memory was the very Dr. Chu whose testimony was accepted by the SJC and played a great role in the denial of the Shanley Appeal).

The Judge (George E. Johnson) decided that "Plaintiff failed to meet his burden of proof under the Frye-Mack standard of showing that the theory of repressed and recovered memory is reliable and trustworthy based on well-recognized scientific principles because of the significant methodological lflaws in the studies presented by plaintiff in support of that theory and the lack of any test to show reliability."

Further, he provides some impressive precedents for courts declaring that ‘repressed memory’ by any name is not scientifically accepted simply because it is included in the DSM: "However, the court does not agree that inclusion of dissociative amnesia in the DSM-IV establishes that the theory of repressed and recovered memories has attained general acceptance or has been scientifically proven. The United States Supreme Court has recognized that a diagnosis in the DSM-IV, 'may mask vigorous debate within the profession about the very contours of the mental disease itself.' Clark v. Arizona. 548 U.S. 735, 774, 126S. Ct 2709, 2734 (2006). The DSM-IV is not a 'scientific paper or a scientific reference or a scientific review article.' (Tr. 315). And it 'does not, by itself, establish the validity of a diagnostic entity.' (Tr. 431). In fact, as the United States Supreme Court recently acknowledged in Clark, the DSM-IV itself cautions against the use of psychiatric diagnoses in forensic settings due to the 'significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to law and the information contained in a clinical diagnosis.'"

This puts an entirely new complexion on what I had noted as a coincidence in the timing of the SJC Opinion and the election in which the Attorney General who supported this and other such cases, Martha Coakley**, was running as a Democrat for the Senate seat formerly held by Teddy Kennedy. You recall that she lost in an upset so stunning that even the UK major magazine of affairs, ‘The Economist’, refers to “the Massachusetts election” as a watershed development in the past several decades of American political history. (We can only hope that this development will have some sobering effect on the SO mania as well as American politics generally.)

It is now clear that the SJC had plenty of significant precedential support - including the US Supreme Court itself - if it had wished to accept the Appeal for a new trial.

Which increases exponentially the possibility that the denial of Shanley’s Appeal was politically motivated; Shanley’s cause was subordinated – it would seem to me – to the larger political concerns not to embarrass her just before the election and – indeed – to burnish her creds a bit.

And perhaps also to prevent even more public examination (in the new trial that had been requested by the Appeal) of the doings of the State’s legal system in Shanley’s – and perhaps others’ – sex offense cases that ended in conviction.

And to protect all the major 'liberal' players in a Massachusetts whose 'workers' have been eclipsed for decades by the Politically Correct elites of the Democratic Party and its media shills.

In which case the SJC literally sold its inheritance, and perhaps its dignity, integrity, and authority, for a mess of pottage – as the Good Book saith – and that on top of that, such a gambit failed politically.

Once again, you can see the ominous and lethal connection of politics and jurisprudence in this entire SO mania.


*You can review the entire article with the quotations from the MN court here. You can review an excellent history of the original case here and if you have a few minutes I strongly urge that you do.

Frankly, recalling all the priests (and others, but this Catholic priest variant of this sub-set of the SO mania seems to have been the most 'popular') who have been dragged through the meat-grinder, noted on various groups' websites as having been convicted or having 'pleaded to' such offenses (hardly an unwise bit of advice on the part of any defense attorney realizing what it would mean to try to defend yourself in a time of mania) ... recalling all that after reading that history of the original case I certainly would advise the public to apply its own version of 'strict scrutiny' to any such accusations made.

This is not, in any way, to be construed as an 'approval' of actual and genuine sexual abuse of minors - or anybody else - especially by those in positions of professional authority, but it is to say that in a time of mania every accusation, especially the most shocking and sensational, must be most carefully examined and many tires - in the interests of Truth and Justice - must be firmly kicked.

God only knows how many priests and other professionals have had their ministries, careers, and lives ruined.

**One of Coakley’s more outré feministical buds, Wendy Murphy, a former ADA and adjunct professor of victim law at the not-quite-first-tier New England School of Law, had filed an Amicus Brief to support the Commonwealth, in which she perorated “that the inability of a child to remember will never be used as a reason to deny a victim access to justice.''

Well, I’m not in favor of child abuse; I am – however – in favor of the utterly indispensable principle that the government has to prove a case against an accused, because the only other alternative is a derangement of the hinges that hold that monstrous Kong behind the Constitutional gate.

If there is no way to obtain reliable and sufficient evidence, then no matter how awful the hypothesized or claimed crime, there can be no just and justifiable conviction.

And– as Joann Wypijewski, the author of the original trial’s history referenced above observes – it was in the ‘feminist psychology’ of the 1970s that this sly and clever – but Constitutionally lethal and treacherous – gambit was first ‘valorized’: in order to pry open some working space for a broad and sustained assault on ‘men’ as violent, chimpish lumps, ‘repressed memory’ was dug up from its late-Medieval grave and re-introduced as ‘cutting edge’ (and ‘sensitive’) science.

And ‘the children’ were put forth – as they were in Salem in 1692 – as the ‘victims’. But in 20th-century America, this gambit was launched not against a barely matured, colonial legal system, but against the very ethos and the very foundations of American Constitutional justice itself.

And it was spun as ‘liberal’.


JoAnn Wypijewski's assessment of the Opinion is here.

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