PAUL MCHUGH AND MEMORY

I’ve just finished reading the book “Try to Remember” by the noted psychiatrist Paul McHugh.*

He discusses, among other things, recovered-memory and the curious history of certain recent medical ‘disorders’ as they are described in the Diagnostic and Statistical Manual (DSM) that is – he regrets – the ‘bible’ of many mental health practitioners.

Since what he describes from his vantage point as a dedicated and highly-accomplished psychiatrist bears directly on the dynamics of the Sex Offense Mania Regime I am putting up a Post here (interrupting my Alinsky series which interrupts my Victimology series … I know).

A dedicated and competent professional, he recounts how in the 1980s he first came into contact with – was almost ‘ambushed by’ – the sinister growth of ‘deductive’ diagnosis. This means that the practitioner doesn’t follow the scientific method – which is ‘inductive’: you gather facts and then try to figure out an accurate explanation of what’s going on. Instead, deductively, you start from your own personal conviction (or ideology) of what’s wrong and then force whatever ‘facts’ you run into to conform to what you’ve already decided is – and HAS TO BE – the explanation.

It’s like choosing only to own a hammer and then deciding that it’s the only tool for every job and THEN hanging out your sign as a home-repair business and approaching any repair job as one that clearly MUST require the use of your hammer. Except that you are not some half-baked homeowner but rather a practicing professional in a field that everyobody expects to be ‘scientific’.

He noticed that he was encountering persons claiming to have ‘Multiple Personality Disorder’ (MPD) – believing that they were actually several or more distinct personalities in their one body. He did what he could to get them beyond that. But after a while, as he says, he stopped simply trying to save this steady flow of persons drowning in the river and started asking himself ‘Who’s throwing them all in?’.

This led him by a bit of detective work to a reputable clinician, a Dr. Loewenstein, who was asking patients if they ever felt there were parts of themselves that they couldn’t control (and who hasn’t had that feeling from time to time?) and then immediately assuring these troubled and confused souls that they had several personalities inside of them and thus were suffering from Multiple Personality Disorder.

There was absolutely no factual or scientific basis for presuming that such a feeling was a guaranteed indicator of any such thing as an ‘alter’ (another self besides the one you sorta know as ‘me’) let alone ‘multiple alters’. There were far less outré clinical explanations already well-established for dealing with a patient’s sense of loss-of-mastery or inability to control one’s interior or exterior life, feelings and/or behaviors.

But this clinician was convinced that such entities as ‘alters’ could and did exist. Worse, he had a ward all to himself at a Baltimore hospital where he gathered all these patients together, where they could set each other off like tuning-forks in a small room. And he restricted his selection of ward staff to only those who would grant “unequivocal support” for the patients’ beliefs that they had multiple-personalities (a belief that his own preconceptions had implanted in their mind).

McHugh asked for an appointment to talk to Loewenstein: it only lasted about 10 minutes, because when McHugh pointed out that the ‘diagnosis’ was based on an un-testable assumption; and that patient histories were ‘corroborated’ by un-testable anecdotal stories; and that there existed every possibility that such troubled souls might ‘manufacture’ material in order to please their prestigious doctor’s expectations and continue that doctor’s attentions … when McHugh pointed out these rather basic issues, he was quickly declared “too biased to be reasonable” and the meeting was terminated. McHugh, clearly, did not ‘believe’ and – I would expect – he ‘just didn’t get it’.

You can’t ask these types of questions, he was told, because you are asking for a sort of “x-ray” of the patient’s mind and that’s not possible. Precisely, McHugh responded: nobody can get a clear picture of what’s going on in anybody else’s mind and there are a number of possibilities that have to be run through, carefully and scientifically, before you can come to a diagnostic formulation.

No, he was told: the multiple-personality “made sense” of the patient’s story. Although this “sense” was only available to those who really did ‘get it’.

It gets worse. In 1973 a maverick psychiatrist, Cornelia Wilbur, had engaged the services of a reporter-ghostwriter to pen the book “Sybil”, allegedly about a woman who suffered from such multiple-personalities.

Worse than that, Wilbur went on instantly to assume that the only thing that could cause the development of the (mythical) ‘alter’ was – wait for it – childhood sexual abuse. And since most of the patients were female, then the perp was usually the father and – not to put too fine a point on it – a male.

McHugh began to get calls from men who, in that era, were suddenly being confronted by grown daughters showing up on the doorstep or in the living room claiming rather vividly that they had been abused as children. He started to be asked to offer expert opinions –ominously – in court cases, since more and more often these cases were being stove-piped (to use a phrase from the Bush-Cheney era of getting only the intelligence information they wanted to hear) right into the legal system.

The ‘evidence’, said these MPD aficionados, was simply “the revealing mental state of the patient”. In other words, the patient believes it so that’s all the evidence we need, not only to diagnose MPD but also to establish that some form of sexual abuse took place. (And of course, what was ‘revealed’ was exactly what a whole lotta ‘interests’ very much wanted to hear – see below.)

I didn’t pay much attention to “Sybil” when it came out as a book back then or – shortly thereafter – as a Hollywood movie.

But reading McHugh it becomes clear now just how marvelously (by intention or serendipity) Wilbur’s plot was positioned to harness the energies of, and ride the crests of, several very large cultural waves of that era: Youth was being ‘valorized’ just as ‘adulthood’ was being ‘deconstructed’; radical feminists were waging Alinsky-ite ‘war politics’ against Men and against Authority and against the Family and claiming that Men were sexually violent by their very nature and – in the view of some radical feminists – that all sex was rape whether it was intended to be or not; Victimology was just beginning to warm up to the ideas that Victims were being ignored, that their ‘pain’ (and their stories) must be ‘trusted’, and that skepticism constituted nothing less than re-victimization, and that instances of such outrages were 10, 50, 100 or more times as frequent as what was reported to the authorities or the media.

And on top of all that, the Beltway was robustly engaged in accepting every advocacy’s claim as true and simultaneously responding to their Alinsky-ite ‘pressure’ by making lots and lots of money available while also starting to monkey around with laws civil and criminal.

Wilbur had a male friend, also a psychiatrist, who happened to work at the National Institute for Mental Health, and – McHugh notes – by 1986 this sort of thing was established as a major focus of well-funded government ‘science’.

It is a sign of just how useful Wilbur’s book was that although the character of Sybil was said to have been sexually abused as a child by a mentally-ill mother, yet quickly the ‘classic’ scenario was morphed to being a daughter abused by a sane but rapacious father. And, as might be said at Santa Anita, they were off! And the band played on.

While McHugh notes that Freud (for whose intuitive and ‘gut’ approach with no scientific research to support it McHugh has scant regard) asserted that the core psychological drama is enacted within the individual, I would say that the combined effects of radical-feminism’s agenda and Victimology and a lot of government money transferred this to an ‘exterior’ battle with evil persons who victimize the individual and upset what was (presumably, if impossibly) a perfectly normal and utterly healthy life.

But Freud’s insight that the human family was in essence a seething swamp of human passions – sexual aggression, power-struggles for dominance and influence – was retained as the decade and the assorted advocacies went barrelling along.

And so too came the clinical ‘approach’ of “high suspicion, low skepticism” that grounded itself in no actual validated research data, but instead only in “assumptions, expectations, and fantasies” (on the part of the clinician even more than the patient).

The simplistic diagnostic equation ran something like this: Premise – all depression is caused by sexual abuse as a child; Observation: the patient is depressed; Conclusion: the patient was sexually abused as a child. He notes that this is nothing more than a travesty of the Scientific Method, and is based on nothing more than irrationality, illogic, and constitutes a gross betrayal of professional integrity and responsibility.

As McHugh pithily puts it: “don’t try to read between the lines until you’ve read the lines themselves”.

He notes that sizable numbers of persons began declaring themselves “survivors” although there was no evidence of just what it was they had survived.

I would add that it is a perennial human temptation to seek status to shore up one’s sense of self – and if you’re needy and desperate enough, by any means necessary or available. And this predisposition is not well-served by a culture that makes such status simultaneously ‘valuable’ and so easily achieved (you simply have to ‘declare’ it). This is NOT to breezily dismiss the possibility of sexual abuse but simply to observe how terribly fraught these matters are; and that they should not be played with any more than children or anybody else should be allowed to play with dynamite.

They declared themselves thus because, many said, their therapists had helped them ‘recover repressed memories’ – which, as I have always said, are things that constitute classic examples of ‘spectral evidence’ (visible only to the self-declared sufferer and not to any other person, clinical or judicial).

He was greatly discouraged when the American Psychiatric Association (APA; not to be confused with the American Psychological Association – also APA) did not quickly and effectively tamp down the growth of this entire clinical trend that included ‘recovered memory’.

What was happening here, I would say, is that these prestigious professional organizations were succumbing to the inherent organizational ambiguity of their objectives: on the one hand to maintain a certain integrity and competence among practitioners, but on the other hand to ensure as many lucrative employment opportunities and venues for ‘new’ and ‘cutting edge’ therapies as could possibly be construed as worthwhile. After all, every therapy that is officially denounced is some practitioners’ bread-and-butter. You see where this sort of thing can go. And there was lots and lots of government money if you were looking to solve the Correct problems.

And there’s the ‘professional’ and ‘scientific’ element ripe and ready for Stampede.

McHugh helped found the False Memory Syndrome Foundation, not simply out of concern for the integrity of his profession but also because by the early 1990s it was clear that large numbers of people were winding up in court and many families deeply disrupted if not wrecked.

But though the DSM was being revised at that time, its gatekeepers did not want to introduce the diagnosis of “false memory syndrome” since the proponents of buried-abuse and recovered-repressed memories were at the same time trying to bolster their increasingly-challenged theories and – indeed – were cagily trying to rename MPD as Dissociative Identity Disorder (DID) to distract the growing objections and give themselves a new lease on professional life (and profits). After all, the neat harnessing of multiple-personality, sexual abuse, and recovered-memories had proven to be quite a crowd-pleaser and certainly both government and media were robustly engaged with it.

Nor, I would add, are psychologists or scientists totally free from the usual foibles of the human mind and heart: thinking for oneself is a lonely business at the best of times. But in times of Correctness and Mania it can be positively dangerous (to your status, your employment, your career, your livelihood). And it always feels better to be part of the herd and even better - to be 'ahead' of the herd, leading the way. Yet being a 'wall-breaker' is not necessarily being a 'path-breaker', especially if the walls you are cherribly deconstructing are carrying and load-bearing structural walls and not just decorative or convenience room-partitions.

And for that matter, the busy and robust movement of a roller-coaster ride is neither 'travel' nor 'progress', though it offers some diverting fun if properly supervised.

McHugh notes that it is rarely if ever the case in matters psychological that A and only A can be the cause of B. There are usually many possible factors (C, D, E, F and so on) that might also be the cause of B, or a combination of those factors operating deep within the self in all manner of complex synergies.

The deductive approach – I believe that A and only A causes B and thus wherever I diagnose B then A must have been the cause – is illogical and cannot conform to the complex and subtle and variable realities of psychic causation. Patients must then be ‘helped’ (‘manipulated’ is more like it) to accept that the necessary ‘script’ happened to them even if they have no memory of such a script ever taking place in their lives.

Much better and much more accurate, says McHugh, to start with a focus on the patient’s actual problems in the Here And Now than to try to impose a script on an almost impossible-to-access ‘past’ set of ‘remembered’ experiences.

AND, he notes, his growing experience in court-rooms as a clinical expert was starting to demonstrate that once you let his deductive-presumptive approach into the court-room, you wind up with both 1) a presumption of guilt; and 2) the burden of proof being placed on the accused rather than on the accuser; and 3) the accused actually being assigned legally the logically-impossible task of proving a negative.**

Things didn’t get any better with the late-1970s explosion of a diagnosis called Post Traumatic Stress Disorder.***

You had a ‘diagnosis’ given to something that is not a disease-entity but rather is merely a set of emotional and behavioral responses to tremendous pressures generated by your experiences. Worse, ‘pain’ – while it can be real, in the sense that it is ‘felt’ by a sufferer – cannot by easily validated or corroborated by an outside observer and in that sense its dynamics function with a queasy similarity like the old ‘spectral evidence’.

But it was clear by the late 1970s that the Vietnam-era troops, some of them, were having a bad time of it in their post-military lives, and something should be done to ‘help’. ‘Valorizing’ PTSD must have seemed a quick, direct, and politically popular ‘solution’.

As early as World War 1 in this country some professional observers from the new psychological disciplines had noted what they called ‘war neurosis’ in some troops; although there were popular public awareness going back to the Civil War when those veterans thus-afflicted were said to have a case of ‘soldier’s heart’. The Brits actually had a hospital set up under a psychiatrist named Rivers that tried to help suffering soldiers (mostly officers) regain their balance.

As should come as a surprise to nobody, the assorted movements and advocacies took what was an already dubiously-cast ‘diagnosis’ stemming from war experiences and quickly applied it to ‘abuse’ experiences and assorted other ‘victimizations’. McHugh will note later in the book that there is now a movement afoot, agitated by this and that advocacy, to get the next edition of the DSM to declare that clinicians no longer have to – or should – try to determine if there really is any conceivably valid ground for a patient’s claimed or reported ‘pain’. Rather, the simple fact of the patient’s declaration should be ‘scientific evidence’ enough that the diagnosis of PTSD applies. I will allow myself here the observation that this is actually heading toward a mutation of the PTSD diagnosis to ‘NTSD’: Non-Traumatic Stress Disorder.

You don’t need a college-degree to realize that if you basically allow the patient to determine the diagnosis you are A) increasing exponentially the risk of inaccurate diagnosis (of what is already a conceptually dubious diagnosis in the first place) and B) increasing exponentially a ‘patient pool’ that could keep a whole lotta therapeutic practitioners in business for quite a while – the perfect clinical ‘self-licking ice cream cone’, as the Pentagon contractors like to say.

Members of the SO Community will be very familiar with the deployment of the ‘incalculable damage’ assertion that grounds so many of the ‘Findings’ which, legislators claimed, created the Emergency that required the Regime.

And again and again and again, I am not denying here that some very real cases of sexual-offense trauma can create valid issues that require professional attention. But I also note that the country has now become ‘medication-happy’, as any tally of TV commercials for prescription drugs (‘ask your doctor’, which works out usually to ‘demand from your doctor’) for this, that, and every other ‘pain’ and ‘issue’.

In this regard, McHugh notes sadly as a lifelong practicing professional, that Oliver Wendell Holmes, Sr. (the mid-19th century doctor, father of the Civil War hero and Supreme Court Justice into FDR’s first administration) noted acutely that his beloved discipline of Medicine was as susceptible to public fads “as a barometer”.

As McHugh found himself traveling all over the country in the 1990s he notes that prosecutors and law-enforcement personnel who would distrust a person’s claim of being assaulted would suddenly become utterly credulous if the person suddenly changed the claim to one of being sexually assaulted or raped. And he notes one judge who actually said that she expected the accused to prove that he did NOT do what he as accused of – which is a logical impossibility (and apparently basic logic courses are not part of the law-school curriculum any longer, or logic is no longer considered relevant to law and jurisprudence).

But there are occasional bright spots: in a Rhode Island case it was the prosecutors who moved to dismiss due to the “subjective character of the psychological data”. So something moved the prosecutors to recall the old ‘spectral evidence’ problem.

But the problem of “over-inclusive diagnoses” remains lethal in the DSM arena; the professional psychological community – true to Holmes’s ‘barometric’ observation – want to be ‘inclusive’ and don’t want to ‘re-victimize’ and so are tending toward accepting literally ‘whatever’ as evidence of validly diagnosable malady. And, I would venture, this will continue as long as the money holds out. And if not, not.

In a particularly acute observation, McHugh poses the hypothetical but quite probable question: But if it’s in the DSM, then it’s real, isn’t it? To which he responds firmly and clearly: No. A fact that courts – including the US Supreme Court – now realize in the matter of recovered/repressed memory cases.

It’s simply ungrounded speculation, and contrary to much of what is actually and validly known about human psychology, to claim as an Invariable Rule that Psychic Disintegration is caused by Repression which is caused by Childhood Sexual Abuse. The entire thrust of evolution, in order to protect and preserve the species, is that human brains are wired to ‘remember’ – at least in a general way; a species that couldn’t recall quickly whether saber-toothed tigers were good things or bad things wouldn’t get very far.

But specific memory remains a complex and hugely variable process: there is no evolutionary need for ‘photographic’ memory and the brain isn’t set up for it; many factors internal to you (your emotional state of arousal, your level of awareness and powers of observation) and external to you (the amount of distraction, the circumstances of tranquility or danger) affect what your memory records. Indeed, if anything, even if you have an I’ll-Never-Forget-It experience, there is serious question as to what a mind under great pressure is going to be capable of recording.

And which you then might be able to access at a later – perhaps much much later – date.

(I had an experience just last week: I had a flash-drive with important material on it in my briefcase on Monday. On Tuesday, rummaging in the briefcase, I couldn’t find it. Instantly, I was anxious. My mind – trying to be helpful – gave me two ‘answers’: first, on Monday I had stepped out of the car with the case and distinctly heard a ‘click’ as I walked away from the car but thought insignificant; second, my mind produced a clear and distinct image of that flash-drive lying among some papers at the coffee shop I had stopped into for a cuppa. I had two clear and distinct images (not to say ‘memories’). I went back to that town and the parking space and the coffee shop both yielded nothing. Getting back into the car, it quietly came to me that I had for convenience tossed my briefcase (the leather, open-topped kind that holds laptops) across the front-seat into the passenger seat. I looked down and there, in the crevice of the passenger seat, was the flash-drive. And yet my mind had – with the best of intentions, I am sure – given me two almost film-like images of ‘memory’ that turned out never to have happened that day.)

Nor is it necessarily established, McHugh goes on, that “one heals by remembering” – which is the mantra of the MPD proponents and recovered/repressed memory crowd and every group that finds their assertions somehow useful.

Clinically, you’re on much more solid and workable ground by focusing on the patient’s present complaint of behavior or feeling or thought and working through THAT – and THEN seeing if that hasn’t given the patient relief. Imposing a hugely dubious, not to say impossible, ‘script’ on the patient will run up bills, create probably more trouble and pain for the patient than s/he originally came to you with, and generally degrades not only the patient’s quality of self and life but your own professional integrity as a practitioner AND the overall integrity of the profession itself.

The “explosive phase” of the repressed-memory “craze”, he recalls, seems to have been at its height about 1994 (the Domestic Violence and Sex-Offense Regimes legislatively established, though court challenges hadn’t yet begun in earnest). He quotes an author who has researched that of the 250,000 licensed ‘therapists’ (a verrrrry broad term itself) that year, a quarter claimed themselves competent to offer “memory-focused therapies” (again, a verrrry broad term) and claimed to recover such memories in 34 percent of their roughly 50 female clients per year. Some math brings you to the rough figure of a million cases. And each case had several more persons attached to it, not infrequently as accused persons.

On the basis of questionnaires and surveys McHugh’s Foundation has done upon available official information, some characteristics of the group of accusers are: almost all Caucasian, 93 percent female, an average age of 32 years, 77 percent college-educated and working in professional, white-collar occupations.

Further, accusations were rare among this pool before 1985 but peaked in 1991-1992, declining down to 1999-2000 (which is around the time the courts began to back away from the validity of repressed/recovered memory … although the Sex Offense Mania Regime was by then performing the neat two-fer of almost completely overshadowing the equally misconceived Domestic Violence Regime and also picking up the slack left by the waning recovered/repressed memory craze).

McHugh raises the hugely intriguing and apt professional question: was all this the result of a ‘craze’ n actual illness OR a “craze in therapy”?

I would add the significance of the college-educated element: precisely the class that would have been exposed to the radical-feminist ideology as it infiltrated (is 'infested' too strong a word, d'ye think?) college campuses in the guise of this or that 'studies' course or department.

He then limns, ominously but informatively, recent jinks and jives among the MPD proponents. They have started now to spin themselves as “humanistic”, as if they were concerned for ‘people’ while clinicians trying to work according to established facts were merely ‘technicians’ concerned with ‘abstractions’ and ‘proof’ and ‘evidence’ and ‘research’ rather than with ‘persons and their pain’ (as if the two approaches were mutually exclusive AND as if the MPD proponents hadn’t caused huge human wrack and wreck).

Further they are trying to position themselves on the PTSD wave by talking about “betrayal trauma” as if it were a clinical disease-entity or constituted as awful an assault on the human being as direct combat experience or substantive disaster-level experience.

In that “betrayal” McHugh sees the continuation of the pervasive – indeed constitutive and indispensable – dynamic of “suspicion” introduced into psychology by Freud: you must always suspect that beneath any appearances of ‘civilization’ or ‘maturity’ in a person there is a deep, hidden, dark frothing mass of essentially sexual passion, repressed but active and indeed determinative in human behavior and motivation. Although this huge assertion of Freud’s is nowhere established by any credible scientific research.

(Curiously, I would note, Freud’s assumption that children are not immune from this because that’s how profoundly and quintessentially human the sexual-motivation is … this assumption of Freud’s was quickly ignored by assorted permutating advocacy positions in the scrum of politicking and political pressuring that has been an all-too-determinative dynamic in the on-going saga of all of this Sexual Violence and Male Sexual Violence stuff. The ‘Child’ is, for the purposes of those interests, an essentially pristine and pure and innocent (in the Victimology sense) entity – which is a vision that not even Freud would have accepted.)

And in this “persecutory psychiatry” as McHugh terms it I see as well the abiding political suspicion of Haves (out of Marx by Alinsky), as well as of Men (out of Alinsky by radical-feminism), and of Perps (out of Marx and Alinsky by Victimology).

The MPD proponents are now billing themselves as “traumatologists”, using a vague and elastic application of the PTSD diagnosis, while also seeking to have their former MPD diagnosis re-named Dissociative Identity Disorder (DID). Concerning their previously trumpeted assertions back in their salad days, these proponents are now claiming that their terminology was just “metaphor” and that they are victims of “misunderstanding”. And, no doubt, that in any case they ‘meant well’.

You can chart their course in shorthand as MPD to DID to PTSD as they continue to surf for a ‘place’ where they can set up shop (and continue billing).

McHugh concludes the book with a significant proposal for a new clinical classification system that I won’t go into here but is simple and well worth the read.

All patients resemble each other in their distress, he says, BUT NOT IN THE CAUSES OF THAT DISTRESS. Thus the DSM approach has been flawed from the get-go in trying to classify Symptoms rather than the possible Causes of that distress.

His new classification system would divide patients according to Causes: genuine brain deformity or disease; Dimensional Disorders (such as intellectual dysfunctions or overly strong emotions or extremes of introversion or extroversion); Behavioral Disorders (such as alcohol or drug dependence or abuse and hysterical illnesses****); and Life-Story Disorders (the cumulative consequences of maladaptive or ineffective emotional or behavioral responses to the challenges of one’s life and to distressing life experiences”.

In all patients, the goal is not only to ‘relieve pain’ but to do so by helping the patient develop and sustain a greater “mastery” over his/her life and thus over his/her self.

I support this approach strongly.

And I can’t help but notice how many elements in current American society are dismissive of the goal of ‘self-mastery’ – either because it is too ‘male’ a goal or because it doesn’t allow for the quick-burning political fuel so beloved of Alinsky-ite agitating and organizers of ‘pressure groups’.

So much remains to be done.

NOTES

*Published by Dana Press, New York, in 2010. McHugh is a Professor of Psychiatry at Johns Hopkins, and from 1975 to 2001 was Director of the Department of Psychiatry and Behavioral Science at the Johns Hopkins School of Medicine, as well as Psychiatrist-in-Chief at Johns Hopkins Hospital.

**You can prove a positive: if you can find one instance of your assertion, then you have proven it. So for example, if you assert that purple elephants exist then you need produce only one such elephant to prove your assertion. However if you claim that NO purple elephants exist, then – impossibly – you have to establish that no such creatures can ever be found to refute your assertion … and THAT task is impossible to achieve.

Thus it’s almost impossible to prove that you did NOT sexually abuse someone.

Which is a frakkulent gambit that has helped ‘keep up the numbers’ in the Sex Offense Mania Regime in all of its permutations and sub-variations.

***I’m going to have some critical observations to make about this PTSD diagnosis here. Given the state of public-discourse nowadays let me say here and now that I am NOT in any way making light of ‘the troops’ and the awful suffering that they face as a result of a decade of unremitting (and most unsuccessful) military operations. And it is the troops themselves who developed the lethally perceptive advice to ‘Embrace the Suck’.

****He uses ‘hysterical’ here in the formal, not the popular, sense. Formally, a hysterical illness is a deception practiced by a patient on him/herself, and NOT merely a conscious ploy perpetrated on others, and it is not a matter of conscious ‘pretending’. In response to a deeply-threatening perceived problem, a patient will pre-consciously develop a physical symptomatology that is actually a smoke-screen evolved by the patient to shield the actual problem from his/her own awareness.

The purposeful deception bit is formally termed ‘malingering’, which is a problem all its own.

ON A LIGHTER NOTE

Well, there are really no ‘light notes’ in matters relating to the SO mania.

But I just had to pass this on. In today’s (February 8th) newspaper cartoon “Pooch Café”* there is a marvelous send-up of the dynamics underlying ‘recovered memory’.

The ‘hero’ of the strip, a talking dog, has just returned from a week-long series of re-visitation of past lives.

He had just revealed to a neighborhood dog that in one of his re-visitations he had seen his caveman master in a past life being eaten by a dinosaur.

The neighborhood dog interjects that such a thing is impossible since humans and dinosaurs existed eons apart from each other and were never on earth at the same time.

The ‘hero’ is dumbfounded – what did he see then? It seemed so real.

In the final box of today’s strip the neighborhood dog provides the answer: the hero’s former master must have been the guy on the toilet eaten by a dinosaur in “Jurassic Park”.

The hero dog simply goes “Gasp!”.

Well, now.

Having been on the planet for more than a couple of decades now, and not maintaining video files of my ‘significant experiences’ on Facebook or a cell-phone or anywhere else, I can vouch for the experience of not quite recalling which ‘memories’ that I can see in my mind’s eye as clear as day are intact and which are actually composites of a whole bunch of things I’d experienced – or just ‘seen somewhere’.

And did I see both friends A and B that night at the baseball game in ’65, or am I blending two memories – and maybe it was a football game, and maybe ’64. And maybe it was C and D, not A and B.

Cute and mostly insignificant problems that just everybody is prone to. But not so if somehow I am claiming to give absolutely accurate evidence in a court case – civil or criminal.

And of course I am not even going near the far-too-underrated possibility that one could simply make up a ‘memory’ perfectly suited to a situation that’s going to get me some nice cash or other benny (as I’ve said in other Posts, perhaps the psychological benny of getting to have somebody else officially declared as the cause of all my failures in life).

The preconscious mind – not under our conscious control – is recognized as an active ‘film-maker’ in the memory process, and as a result courts should be very careful in considering even memories that are assumed to be valid and honestly related.

But the human self – especially for the purpose of acquiring some ‘gain’ – is quite capable of being a very conscious and purposeful film-maker. And that’s a whole other situation.
The deliberate manipulation of memory – and of a judge and/or jury – is a form of predation that cannot be lightly or too-quickly dismissed, especially in cases where little other evidence supports the charge.

Yes, as one legal wag once put it (I’m quoting this from memory here, so make allowances): there are times when circumstantial evidence can be very persuasive, as when one finds a trout in the milk. But you don’t often find a fully-grown fish in a milk carton in this type of case.

As we saw in the Shanley case, lacking a trout in the milk, an enterprising attorney has other options. As Cicero once said (again, from memory here): When you don’t have enough evidence, you can always abuse the defendant. If Cicero only knew …

One of the great enablers of the SO mania in regard to court cases has been the shrewd tainting of the jury pool before the fact – indeed so far before the fact, before the jurors even get into the court room, or before they even know they might be a juror.

I refer of course to the miasmic skein of untruths pushed as ‘Findings’ by legislators**, trumpeted by a sensationalist media with an eye to laying the groundwork for future civic melodramas where ‘good’ triumphs over ‘evil’, and thus saturating the public in a slimy fog of inaccuracy before anybody is actually called for jury duty. Throw in a couple of made-for-TV movies or TV series episodes and you’ve tainted the pool without anybody being indictable.

Just some thoughts from looking at the comics this morning.

NOTE

*Sorry, but I have no way of figuring out how to display it to you or even link to it.

**I note again how curious – and suspect – it is that so many of these SO laws are passed by voice-vote, so that nobody except the actual official sponsor of the Bill is vulnerable to public opprobrium if things should go wrong with the law. This is on top of such often illicit schemes as sidestepping Committee consideration and placing the Bill directly on the Floor, which of course chills any dissent from legislators who suddenly don’t want to be publicly seen trying to stop the ‘good and sensitive stampede’.

THE SHANLEY OPINION

I want to go over the January 15, 2010 Opinion of the Supreme Judicial Court of Massachusetts in the case of Paul Shanley, former priest accused of assorted sexual charges against male youngsters, in which recovered or repressed memories played a great part.

The text of the Opinion is here.

The first point to make is that the Supreme Judicial Court (SJC) is only dealing with the points raised by Shanley in his Appeal, and is not engaged in a wholesale review of ‘recovered memory’ (also known as ‘repressed memory’ and connected closely with the formal psychiatric diagnostic term “dissociative amnesia”).

That being said, there is a lot here and it offers significant instruction to the concerned reader.

The SJC rejected Shanley’s appeal of his conviction.

To recall the essentials of the original matter: in February of 2005, Shanley was convicted of two indictments charging rape of a child and two indictments charging indecent assault and battery on a person under the age of fourteen. These acts occurred between 1983 and 1989 when the victim, between the ages of about 5 and 11, was attending church education classes at the parish where Shanley was serving as a priest.

The accuser (call it a personal tic, but I prefer not to use “victim”), a former Air Force police officer and now a local fire fighter, testified that he did not remember being abused until more than twenty years later, sometime after January 2, 2002 when his girlfriend called him at his post in the Southwest to tell him that one or several school acquaintances of his had just remembered being raped by Shanley, following the first articles in the ‘Boston Globe’.

As the Opinion succinctly puts it: “The victim’s testimony about what he remembered of that abuse constituted the core of the evidence against the defendant at trial”.

Shanley’s Appeal raised four points, only two of which are of significant concern to the SO community, as far as I can make out: that the trial judge erred in allowing testimony related to “repressed memory” and that the prosecutor made improper arguments during her closing.

I’ll focus on those aspects of the Opinion, although I will also discuss some of the Footnotes to the Opinion, which hold a few nuggets themselves.

In recounting the evidence presented at the original trial, the SJC reveals the problems that often arise in this type of case: “the Commonwealth’s case included the testimony of the victim as to his memory of the abuse; the testimony of witnesses who observed the victim during the period of time when he claims he recovered the memory; the testimony of an expert witness on dissociative amnesia and recovered memory; and the testimony of individuals who could corroborate that the victim both attended classes during the period of time he said he was abused and occasionally left those classes for behavioral reasons”. [italics mine]

As you can see, there is precious little solid to go on, and much that is widely open to – ummm – alternative explanations. Thus, the testimony of repressed memory is about as close as the modern era can come to the old Medieval ‘spectral evidence’, visible only to the one who reports it and it must either be taken on faith or rejected, since nobody else can see or otherwise examine the evidence.

Ditto, friends and relatives who testify as to how the defendant behaved after suddenly remembering may simply be an innocent – or collusive – audience at a play put on by the sudden-rememberer: there’s really no way to know if their testimony is of much use, since the core non-provability of the ‘memory’ may also corrupt the witnesses to the effects of the reputed memory.

Those who testified that the accuser attended classes simply establish his presence at a certain time and place.

I’ll talk about the experts a little later on in this Post.

Again, nicely if inadvertently, the SJC states that “setting aside the victim’s testimony regarding the alleged sexual abuse, and the testimony of the Commonwealth’s expert, the jury could have found the following facts” … that the defendant was stationed at such and such a parish as a priest during the years the accuser was a student; that the defendant would often check on the students in their Sunday religion classes; and that the students in the classes ranged from age six to fourteen. And those are the facts. Beyond that … well, you’ll see.

Born in 1977, the accuser had what used to be called a ‘broken family’ (now more or less considered as just part of the new-normal adventure of growing up). He was notable as part of number of children who “became quite boisterous” in class; the accuser and two of his friends were particularly notable for this deficiency, which required their being sent out of class and disciplined “often”. Occasionally, such admonishment fell to the defendant, quite in keeping with his overall responsibilities.

It was on January 31, 2002 that the accuser – stationed in the Southwest – received a phone call from his girlfriend telling him about the accusations made against the defendant, to which, the Opinion notes, the accuser made the immediate response “That’s weird, everyone liked him”.

Following the conversation, the accuser got onto the internet and did some serious looking around, and began remembering that he was taken out of classes, but nothing else.

But on February 11, 2002, the girlfriend again called to report that one of his old pals had made an allegation of abuse against the defendant. With stunning straight-face dryness, the Opinion then states that “the victim had a strong emotional and physical reaction to this news” and that “shortly after this conversation, the victim contacted his flight chief and said that he was not coming to work”.

The Opinion then notes that on the same day the accuser did not go to his duty assignment, he also called the old pal who had made the allegations [whose case the Commonwealth, at the last minute, would decide not to bring to trial]. The Opinion continues drily: “Then early the next morning, the accuser contacted a personal injury attorney, with whom he later entered into a fee agreement” [this means that the attorney would take the case for a percentage – usually around a third – of any monies achieved]. And then the accuser went to see the base psychiatrist where – rather remarkably – “he stayed … for ten or twelve hours and felt awful, confused, and sick”. [italics mine]

This is all remarkable. The timing and the clearly rational eye to financial gain are glaring; and in the Diagnostic and Statistical Manual, Fourth Edition (DSM for short; a Fifth is in the works) it is specifically stated that “malingered [nice professional word for ‘faked’] amnesia is more common in individuals proceeding with acute, florid symptoms in a context where potential secondary gain is evident” – all of which would appear to apply here.

After a trip back home in the middle of February, the accuser went back and got himself an honorable discharge (not so hard to do nowadays) and never worked at his police job again, returning to Massachusetts to live with his girlfriend. He received a half-million dollar out-of-court settlement from the Archdiocese back in the days when they were settling in lieu of trying to defend their priests.

Things are not substantially improved as the Opinion gets to the actual sexual abuse allegations: the accuser testified based on memories he recovered after learning of the allegations made by others.

The Commonwealth’s main expert was a Dr. Chu, an expert in the recently-erected malady termed Dissociative Amnesia, who was not asked to diagnose the accuser (the accuser was never actually diagnosed by anybody as having it!) but rather “to assist the jury in determining the credibility of the victim’s testimony, that he had recovered memories nearly twenty years after the abuse, and their consequent reliability”.

Chu first pointed out that Dissociative Amnesia (popularly known as recovered or repressed memory) is in the DSM itself – and this I think is the key to the Court’s rejection of Shanley’s ‘recovered memory’ point: no Court – no matter how hard it had to work at keeping a straight face – could reject the legitimacy of a malady that the professional psychiatric-psychological community had placed in its official diagnostic manual. And this, I think is the heart of the problem with the use of ‘recovered memory’ in the courtroom context: the medical community has already undermined any rational objections to this hugely contested and on-its-very-face dubious theory by trying to keep the peace in its own house by letting the thing into its master diagnostic manual in the first place.

Yes, the 1994 edition of the Manual itself (pp.478-481) goes to credible length to note that the recent “increase has been subject to very different interpretations [italics mine] : some believe that the greater awareness of the diagnosis among mental health professionals [a very large and uneven group, covering a range from psychiatrists to assorted ‘therapists’] has resulted in the identification of cases that were previously undiagnosed” but that “in contrast, others believe that the syndrome has been over-diagnosed” [ it had originally been associated with combat experience and natural disasters and only as the sexual-abuse mania started was it suddenly applied to those “survivors”]. Individuals might well, the Manual notes, be “highly suggestible”, a polite way of saying that assorted unhappy folks could be convinced by therapists that they were suffering from it.

Later on in the Section (p.480) , the Manual warns about Malingering, that nice term for faking it; with spectral evidence, and symptoms that can only be accepted but cannot be directly examined – thus increasing the possibility that they can be faked, such a gambit is a very significant possibility.

The Manual also takes pains to note directly that this diagnosis is “especially difficult to assess in preadolescent children” because it may be confused with a host of other possible problems.

In discussing the Course of the malady, the Manual uses examples of soldiers in combat. In all cases, “care must be exercised in evaluating the accuracy of retrieved memories, because the informants are often highly suggestible”.

Then the Manual gets a little more specific about sexual abuse memories (p.480): “There has been considerable controversy [italics mine] related to reported physical or sexual abuse, particularly when abuse is alleged to have occurred during early childhood. Some clinicians believe that there has been an underreporting of such events … however other clinicians are concerned that there may be overreporting, particularly given the unreliability of childhood memories”. And then the Manual says outright that “there is currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence” (pp.480-1)[italics mine].

Which is not a problem that is ever going to be solved, because there is no way to ‘see’ a memory inside another person’s head, except in Star Fleet medical scenarios, or the Vulcan mind-meld. (Although I seem to recall that Dumbledore recently displayed some technology that enables a memory to be encapsulated in a liquid, then made visible if the vial is emptied into a certain type of bowl – but I’m no expert on things Hogwart.)

As you can see, while the clinical community covered its own bases by acknowledging that there is significant controversy among the professionals themselves, the very fact that this thing was allowed into the Manual creates a massive difficulty when attempting to raise rational objections in court.

Worse, then, has been the extension of this combat-and-natural-disaster malady to sexual abuse, where you get scenarios so obviously similar to the ‘spectral evidence’ of the Witchcraft Trial era that you ask yourself if the country’s jurisprudence hasn’t taken a huge step backwards to the 17th century. I think it has. Nor do I think it can reasonably be characterized as either ‘progress’ or ‘reform’.

And one criminal defense website makes note that ‘recovered memory’ is now not only a ‘diagnosis’ but a ‘prosecutorial strategy’: it constitutes what is politely called the prosecution’s ‘theory of the case’, meaning that this is how the prosecution thinks that their charges are reasonably possible. So whereas 20 or more years ago the prosecution could never come into court with a sex case and claim that their main or only proof is a ‘memory’ that the accuser suddenly discovered s/he had after a period of umpty years, now it is possible to do it with a straight face and courts will – thanks to the DSM inclusion – have to accept that the theory is at least possible. Such are the dangerous consequences generated by mania science upon mania law.

Further “Dr. Chu identified the ways in which a clinician would go about testing the validity of a memory recovered many years later, including determining whether a person's life changed abruptly at a certain time, whether the person has had the ability to begin and maintain interpersonal relationships, and whether the narrative of the person's life is believable and reasonable”. But as even the Court’s straight-faced recounting of the accuser’s personal history indicates, he had quite a few issues and difficulties very early on and it would be a verrrry difficult thing to figure what was caused by alleged abuse and what was already there.

And then “Dr. Chu acknowledged that it was possible for a new memory to be created in some people that has no basis in reality. He gave common examples of this phenomenon on a minor scale, but explained that there was "probably only a very small minority of people who are vulnerable to that kind of suggestion." As the Court here notes, the examples were “minor”, and thus didn’t reach the intensity of something like rape.

And while he’s legally accepted here as an ‘expert’, I’m not inclined to accept at face value his “probably” guesstimate as to how many folks have actually had new memories created by suggestion.

And I note that nobody – as far as the Opinion indicates – asked him for his opinion as to how many patients-accusers do that “malingering” thing; inquiring minds would like to know.

And then in conclusion “Dr. Chu concluded by estimating that dissociative amnesia occurs in approximately twenty per cent of the seriously traumatized population”. Now is this population comprised of soldiers and natural-disaster survivors, or only sexual abuse rememberers, or both?

The defense expert, Dr. Judith Loftus, explained how humans ‘remember’: we are not tape recorders or movie cameras; rather, we “construct” memories, and in that construction, mistakes are often made. There are many things that could affect the accuracy of a memory at all phases of the process: how you perceived the event as it occurred; deeply held assumptions that shape the ‘picture’ you have in your head; “the exposure to post-event information” – meaning that you may automatically adjust a memory upon hearing or reading certain information later; being confronted with leading questions … any or all of these may “distort or supplement” a memory.

She also noted that time’s passage made memories weaker and more vulnerable to “post-event contamination”. And that’s before you even get into the contamination caused by willful “malingering”.

Then she zeroed in: it’s “virtually impossible without independent corroboration” to distinguish between an accurate memory and a false one, either from inside your head or by somebody outside your head. And, as noted above, I would add that it’s never going to be possible to ‘see’ a memory from outside an individual’s head – except in Star Fleet and Hogwarts medicine.

She asserted that from all her work and research and understanding of the literature, there is “no credible scientific evidence for the idea that years of brutalization can be massively repressed”. And I’d have to agree. With the exception of those who were infants or the very elderly – whose capacity for memories is not robust in the first place, nobody in the Nazi camps seems to have forgotten that they were there. Certainly, Evolution would want to arrange it so that humans precisely DO recall the bad stuff, so they know enough to avoid it next time. (You may forget where you left your 25-foot ladder, but you never forget what happens if you fall off the top of it.)

(Think about that for a minute: a person claims in a court-case that over a period of 5 or 6 years he continually got up onto the top of a 25-foot ladder, forgot about gravity, fell off, and in each subsequent episode he had 'repressed' the memory of his prior fall ... until now, 20 years later, he wants to be reimbursed for the pain and suffering from the falls which he didn't recall until he read in a newspaper that another such person was collecting lots of money. Do We really think that there is such a mechanism for 'repressing the memory of the trauma' such that somebody could claim he had 'dissociative amnesia' and prestigious psychiatric professionals would back him up?)

So, she says, nobody in the field has come up with any mechanism that puts a traumatizing (however that is defined) memory into the unconscious, where it then resides, pristine and accurate and in one piece (as it were) until it suddenly pops back to the surface like Titanic, ready to continue on her journey to New York with the champagne still iced and the tables and chairs upright.

And she observed that there is an “inherent limitation” to any memory research and study, past, present, or future: all of it relies for its basic input information on “self reporting by patients”.

The sex-offender community will recall that it is precisely this problem that the so-called Containment Model of sex-offender management seeks to solve by using a lie-detector as part of the post-release ‘management’ regimen: a ‘managed’ sex-offender will have his reports to the parole officer and therapist (and victim advocate) subjected to a lie-detector. Alas, it’s considered bad clinical form to use a lie-detector on those asserting ‘repressed memories’, and courts don’t even trust the things enough to allow their results into evidence. But it’s the very thing to use on sex-offenders.

The Commonwealth also called a Dr. Brown as an expert. He is an assistant professor of clinical psychology at Harvard and an adjunct professor at Simmons School of Social Work, a School within the predominantly female Simmons College, who “specializes in treating patients who have been victims of trauma” – any sort of trauma, but I’m going to bet he doesn’t get as many natural-disaster survivors as he does sexual ‘survivors’. [The Opinion lists a book he has written – “Memory, Trauma Treatment and the Law” – but I haven’t had a chance to look at it].

I will say that in a nutshell my take on a lot of these studies in support of ‘repressed memory’ is that they merely support the possibility of it; it’s theoretically possible, they say, although in science you then have to see if reality actually supports your theory – and few if any have been able to comprehensively ground the entire theoretical ‘memory repression and recovery’ process in actual proven facts. One study notices something in rats, another in how a person remembers or forgets under certain types of pressure, and so forth. But there is – and probably never will be because there cannot be – any study that puts it all together into a coherent, factually conformable theory.

And yet lives are being wrecked quite actually in civil and criminal litigation and sensationalist media stories, on the basis of a theory that nobody can actually prove exists. So you have a spectral theory, using spectral evidence, that has been embraced as a theoretical possibility by researchers and clinicians, but – given that very spectral-ness – has been deployed by prosecutors as a weapon against which there is almost no defense. Good grief.

Shrewdly, Dr. Brown asserts that in six surveys of “psychology professionals, including psychiatrists, psychologists, social workers, and clinicians working with war veterans” 89% “of those surveyed accepted the validity or the possible validity of dissociative amnesia”. This says a lot less than it looks like it says. I accept the possibility that there is extra-terrestrial life in the universe, but that doesn’t mean I spend my money on home-defense and alarm systems designed to detect and fight off Martians. And all of these folks work with war veterans, whereas the CORE QUESTION in this case is whether ‘repressed memory’ and such applies to sexual abuse memories.

He acknowledges “that there is controversy surrounding the existence of dissociative amnesia and the difficulty of determining its existence in a particular individual”. How do you corroborate somebody else’s memory? How do you make a precise diagnosis in accordance with the DSM-IV (for all its description, it’s short on actual factual stuff)? How do you get around the fact that there are no known neurological or biological processes or entities in the body that could lead to dissociative amnesia? How do you tell the difference between a false memory and a lie masqueraded as a memory?

No answers to any of these. Yet the Manual has the Diagnosis in there, no judge is going to say he knows more about psychology than the psychologists and psychiatrists, and most juries (up until very recently, maybe) have been thoroughly soused by the sex-offense mania, and more particularly by the priest-sex-offense sub-variant of the mania. And the prosecutors love it, and you can see why.

So the Court has not actually validated ‘recovered memory’ – it has simply said that there are enough licensed professionals out there – and that Manual itself – that say it might exist, so that’s enough to present to a jury (thoroughly soused) and let the jury decide. This is the difficulty not only with jurisprudence in a time of mania, but also with a diagnosis with such huge theoretical and practical problems that is suddenly transferred from the academic and therapeutic forum to the legal and prosecutorial arena.

And this, the SJC Opinion asserts, even though “defense counsel utilized the DSM-IV in questioning Dr. Chu, focusing the testimony on the DSM-IV's cautionary language regarding the use of DSM-IV in forensic settings where the patient has been referred by an attorney, and in making a diagnosis of dissociative amnesia where there is ‘currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence’." [italics mine]

This is not a ringing judicial endorsement of the diagnosis or the theory.

And as to the prosecutor’s closing statement, this is what she said:

"[The victim] is a twenty-seven year old man. He's recently married. He has a job that he loves.... He has half a million dollars in his pocket. So why, ladies and gentlemen, did he come in here and tell you what happened to him? Why? What does your common sense tell you?

"You saw him on that stand for almost 14 hours day after day, hour after hour, he willed himself through that testimony. You saw it. What does your common sense tell you?

"He came in here and he told you what happened because that man, that defendant, that priest, raped him and molested him when he was a little boy over and over again. The defendant would have you believe it is all a lie. It's for the money; that people don't forget about things that happen to them and then later remember them....

"Was it all a lie? Was it made up? Did [the victim] come in here and just lie about it? Was it for the money? He has the money. He got the money over nine months ago. No strings attached. What did he get from coming in here? The opportunity to be on the stand? He sustained long, painful questioning, and what did he get from it? It's not about the money. Put that aside. Is it all a lie? ...

"And [an attorney] filed a civil lawsuit on behalf of [the victim], and [the victim] got a half a million dollars. True. But so what? It's all done, signed, sealed, delivered to the bank. And it's done. No more words need to be said. That's over. And it has been over for over eight months. That's what you know. That's what you know about what happened."

You can look here to get an idea of the entire gist of the accuser’s story as to how it all happened. And also on my Post on this site here.

The jury was asked to accept that a boy with some notable behavioral issues was abused, forgot it immediately, and underwent that same trauma or worse, repeatedly over the course of five years, forgetting that it happened each time and not remembering that it had ever happened to him previously, and then forgot the whole thing until he found out two decades and more later that other people were making accusations, whereupon he got a personal injury lawyer, spent a lot of time in a psychiatrist’s office, kept a journal of his feelings, got himself out of a military commitment, went home to live with his girlfriend who then became a witness to the ‘effects’ of his memories, and collected half-a-million in cash.

I’m not saying it didn’t happen, but there it is.

The prosecutor’s appeal to “common sense” is kind of remarkable. I think it is based on the shrewd perception that by that time (very early 2005, the date of the original trial) the jury was soused with the sex-offense mania and so its “common sense” would be shaped according to the tenets of the sex and priest-sex offense mania. Folks like to be flattered that they have “common sense” and the prosecutor clearly laid that flattery on with a trowel.

And part of the “common sense” of the mania is that it is insensitive to question the victim; “believe the children” was the mantra in the now thoroughly-discredited 1980s pre-school satanic-abuse ritual trials, if you recall.

What benefit would the victim derive from coming in here and lying, the prosecutor asks. After all, he already had a lot of money from his civil settlement – so what else could he be after? Well, one answer might be that he didn’t expect to be in there in a court of criminal law since he had only the money in mind when he started out – but now that the Commonwealth decided to bring the case what could he do? Say he didn’t want to testify? Say he couldn’t remember again? He was, perhaps, ‘stuck’, as they say.

And perhaps there was a psychological “secondary benefit”, as the DSM puts it: his whole messed up life and self is now explained by the fact that somebody else did it to him. The father of this accuser's friend - the one who first made an accusation but whose hugely problematic background precluded confidently putting him forth as a victim in the trial - said that precisely: “As soon as I heard about the memories, I knew it would explain everything and I was going to have all the answers”. That “everything”, Dad didn’t mean to reveal, meant his kid’s whole messed up life (and perhaps his own role as a father in causing it). That’s a pretty big benny – a sudden and complete excuse for everything you’ve ever made a mess of.

That’s my take on the text of the Opinion.

There are a some meaty points in the Footnotes (FN).

FN9 states that Dr. Chu assured everyone that a diagnosis gets into the DSM only after a "fairly rigorous process by which interested groups of people" may convene a task force or engage in field trials to test a new diagnosis of a specific syndrome. The diagnoses in the manual are subject to revision and evolve over time. The dissociative amnesia diagnosis first appeared as such in the third edition of the DSM, DSM-III”. Well, you can see something here: the process can’t be rigorously tested, clearly, since nobody except Spock and Dumbledore can ‘see’ other peoples’ memories and that’s not changing any time soon. Instead, different groups push or oppose a suggested Diagnosis, and then after a while they take a vote on it – and if there enough votes, the Diagnosis gets into the Manual. But again, after it got in through such a ‘rigorous’ process, it was applied not just to the original combat and natural-disaster sufferers, but also to those who had been sexually abused (however that is defined) back in those early 1990s when the abuse mania had reached white heat. It’s not impossible that the Diagnosis may be ‘revised out’ of the DSM – although where that would then leave persons convicted under it is one of those unlovely questions that always seep out of the underside of mania law.

FN21 states that “taken collectively, the articles further illustrated the controversy over repressed memory, that the theory was questionable because it could not be tested with scientific methods; that there was the possibility of false memories; that clinical techniques could lead to the formation of false memories; and that there was uncertainty about the neurological mechanism which caused repression”. The SJC is saying here that it acknowledges all the controversy, but that in law the only question is whether enough professionals go along with it so that a court would be imprudent not to accept their professional evaluation or opinion.

FN26 is verrrry interesting: “The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction”. [italics mine] The SJC is saying here that it did not need to consider in this particular case the question of whether a conviction could legitimately be made only on the basis of ‘recovered memory’ testimony (although it had stated earlier in the Opinion that the accuser’s recovered memories were pretty much the whole case). But Shanley’s Appeal did not raise the point so the Court did not have to consider it. I get the impression that the SJC would not be too happy with a repressed-memory-only conviction. Although in this case, from what I can make of it, I can’t see what other evidence persuaded the jury to convict – but that’s law in a time of mania for you.

FN30 gives you a fine glimpse into prosecutorial rhetoric: in one of her arguments the prosecutor said "But, ladies and gentlemen, think about it for a minute. Hasn't it all happened to one of us: the walking down the street and you bump into someone, or you are at a high school reunion, just like Dr. Loftus said, and you see someone who you haven't seen in a long time and you start talking. And all of a sudden you remember the time that the two of you were out together and you ran out of gas and you got stranded by the side of the road, and then you got into trouble because you missed your curfew. Now, you hadn't thought about that 10, 12 years, but now you remember. Does it make it any less real that you hadn't thought about it? Does it mean that it never happened? No. Use your common sense."

So back to the “common sense” thing.

But look at her example: she compares a high-school reunion where in idle conversation with an old classmate you suddenly recall a minor point about an insignificant event that you hadn’t thought about in years. This, somehow, is supposed to be the same as remembering as if by inadvertence that you had been raped and abused serially over the course of years – years when any kid could be remembering a favorite athlete’s ‘stats’ down to the third decimal place . And the jury apparently bought it.

Well, there’s my take on the Opinion in the Shanley case.

I’d have to mention one other point. This Opinion was issued on the Friday before the Tuesday of a Special Election in Massachusetts, in which the Attorney General (a Democrat) who had brought this case was running in a hugely contested race for a US Senate seat (the President, if I am rightly informed, flew into Boston on Sunday the 17th to lend his support). Politics being what they are, I can’t help but notice the coincidence in timing.

But really, I don’t know if the Court could have decided differently. The problem is that the professional therapeutic community, through its premier national organization, had put its seal of approval on the ‘science’, and it was that placement of the Diagnosis – as grievously flawed as its theory is – into the DSM that undermined things. Perhaps one might have argued more cogently not as to the validity of ‘repressed memory’ in general but rather its validity as applied to sexual-abuse cases; but there are a lot of ‘professionals’ – especially in the lower ranges of that definition – who are happily conducting business under the aegis of this Diagnosis and its underlying theory, and I don’t know how much success you could achieve.

That’s law and science in a time of mania.

CLYDE RAY SPENCER: SORRY!

RECANTING ABUSE

As you may have just read (I read it on AOL), a pair of 30-somethings have just recanted the abuse allegations that got their father, a policeman, convicted of sexually abusing them as children and spending 20 years in prison.

Let me say this right off: I am not here adopting the ‘good’ vs. ‘evil’ melodrama script that seems so essential in media ‘reporting’ in the past 2 or 3 decades. I am not here implying that the father is the completely ‘good’ guy and that some other(s) is/are the ‘bad’ persons. Life is rarely that simple, and neither are human beings, especially in their intimate and familial relations.

In fact, it’s my position that it is precisely this good-evil melodramatic over-simplification that has helped fuel the whole sex-offender mania and all of its attendant and enabling ‘mania law’.

That being said – and I mean every word of it – there is more than enough here for our consideration.

The adults-former kids went before a Superior Court Justice in Vancouver, Washington on Friday last and recanted.

All they can recall at this point is that they were insistently interrogated by a then-detective, one Sharon Krause. The son said that at the age of 9 he finally gave in after “months of insistent questioning” and told her what she wanted to hear “just so she would leave him alone”.
A whole bunch of points flow from this.

First, the police have their ways of getting you to give them what they’ve already made up their mind they want to hear. That’s par for the course in interrogative procedures: keep at the ‘witness’, bother the witness, and don’t stop until you get what you need. I suppose when you’re going after an Al Capone or a probable spy, it makes some sense, is more or less within acceptable boundaries for constitutionally-permissible police procedure, and serves the a) general purpose of enforcing the law, b) seeing that law and community order are preserved, and c) ensuring that justice is done [although I am not assuming that all three of these goals are identical or even – in practice – mutually compatible].

Second, this whole procedural plan starts to shade into something else altogether when a community (including – ach! – a national community) is in the grip of ‘mania law’. Police agents with an axe to grind or a dogmatic commitment to their own assumptions about who’s ‘good’ and who’s baaaaad and what ‘message’ should be ‘sent’, are as legally empowered to do their worst as decent cops just trying to get to the bottom of something and find the truth.

Third, this whole procedural plan goes amok when you are dealing with children as your ‘witnesses’. The memory of a child – like the rest of his or her brain – is still in a very formative state. Yes, a person governed by victimist law (if something is causing pain then the Law has to find – or be made to find – a way to stop that pain, no matter what ‘quaint’ Constitutional and traditional ‘abstractions’ might be in the way) will consider that leaning heavily on the child to be just a ‘thang’ in the service of a ‘good’ cause, and since it’s an ‘emergency’ then anything goes. This, after all, was part of what fueled the day-care sex-abuse crises of the 1980s. Although almost all* of those cases have been overturned and the imprisoned released (if they haven’t died in stir in the meantime).

Fourth, you are dealing with genuinely ‘spectral’ evidence here, just like that accepted by the court in the Salem Witch Trials** (back in the benighted days of the 1690s): only the ‘victim-witness’ can see it, but the court took their word for it, and awarded such statements the legal status of providing probative and reliable evidence upon which to base a (life-destroying) conviction. But when you’re fighting the Devil, it’s all good, right?

About the alleged sexual molestation, the daughter, now 30, says that she “would have remembered something that graphic, that violent”. With which observation one can only agree. But the ‘recovered memory’ and ‘repressed memory’ theories were ‘fresh’ and ‘authoritative’ new ‘research’ back then, one of the early but crucial bits of sex-offense ‘science’ whose paid experts had begun to surf the wave of credulous media attention and free-flowing government funding.*** ‘Trust the children’ was the mantra; although not to turn in their homework unless they know they’ll be checked, not to drive a car, not to drink a beer, not to open a bank account, not to handle firearms … but to provide the crucial evidence that can end a normal life – well, OK. After all, it’s an ‘emergency’.

And the Law should try to be ‘creative’ and ‘responsive’ and so on and so forth, right? I think that we should all, as Citizens and not simply as potential accused, consider just what in the blessed frak they are teaching in the law schools these days: if ‘creativity’ is a code to cover disregard of long-established evidentiary principles and even Constitutional principles (Alberto Gonzales didn’t think up ‘quaint’ on his own), and if ‘responsive’ means that the Law and its agents should yell Bleaaahhhh and gallop hard to get in front of the stampede and lead it … well, that seems not the way to best proceed. Not, at least, if you want to keep a Constitutional Republic.

Not that these children came up with the whole thing on their own. The daughter remembers the detective “buying her ice cream”. Now, that’s not a service usually provided to the average witness. Although if an adult witness – uninterested in ice cream – were to be happy with some cash … are there laws about that?

Fifth, this demonstrates what happens to the integrity of law-enforcement agencies when they are lured or seduced – if I may – into joining the stampede. Because on top of the ice-cream, “the prosecutors withheld medical exams that showed no evidence of abuse, even though Krause claimed the abuse was repeated and violent”. Good blessed grief. Did nobody notice the deck tilting on the Titanic? Did any of the uniformed personnel on the bridge give any thought to what it meant to push the huge bulk of the police-power at high speed through the dark in a patch where icebergs are notoriously possible?

Sixth, this demonstrates what happens to the integrity and reputation of the entire criminal justice system. Courts are verrrry touchy that they be “perceived” to be serious, careful, and as a result more or less accurate in their life-altering judgments. If folks start to think of them as a real-life Monty Python, or as a real-life ‘show-trial’ operation like Hitler and Stalin and Mao used to run … well, the courts quite legitimately don’t want to have that ‘perception’ get around.

Whether, however, they have acted in such a way as to render such a perception baseless … well that’s another point altogether. This stampede has been led from the top – alas. In the Salem Witch Trials, the local court (specially convened to deal with the ‘witchcraft’) led the stampede; but the Governor in Boston, and the Crown in London, higher up the chain of authority, acted to put a brake and then a stop to the whole thing.

Such is not the case today among us, however. We are now in the throes of a mania-stampede that is being led by the highest sources of legislative authority and enabled by the highest judicial authority.

I hope that changes – and from my lips to God’s ear, if I may pray.

Seventh, Clyde Ray Spencer is still a ‘convicted sex offender’. Although he is hoping to get that changed. But even though the Governor pardoned him in 2004, the sex-offense laws aren’t based on such things. And let it be recalled that in all of the enabling sex-offense legislation, there is that ominous (perhaps truly reckless and even treacherous) clause towards the end that absolves police agents from any liability if they err on the side of – ummmm – public safety in dealing with a possible sex-offender. As Hermann Goering said before the cameras, a bullet from the gun of any police agent of the Reich is a bullet from my gun (And do you vant to argue mit ze Reichsmarschall? Take him to court? Gute luck mit that, Herr Citizen.) Ach.

Eighth, all of this mess is an utterly predictable consequence of having the government and its police power invade the most intimate – and legally complicated – aspects of citizens’ lives. Even former Chief Justice Rehnquist sensed clearly how utterly dangerous a position the nation’s courts would be in if they had to ultimately adjudicate on the basis of “he said she said” as he put it; or in matters of almost ‘spectral’ evidence (the ‘memories’ of children, some of them far closer to infancy than to the status of legal adult).

But ‘consequences’ were not considered carefully in ‘the emergency’ as it was then characterized. (And can you say ‘Iraq War’?)

Now we are faced with a system of retroactive and registration and notification laws that seem to grow as if they were out of all control. This matrix of bad law not only wrecks lives of every person it touches – whether plaintiff or defendant, ‘victim’ or ‘perp’ or ‘witness’ – but also lays the precedents for a truly profound Constitutional destruction: if the legislative and judicial branches, even at their highest levels, can declare ‘emergencies’ with such unjustified ease and thoroughness, then what happens when they find some new ‘outrage’ that will create the next mania stampede? And they have sustained this lethal course of action for almost 20 years now.

Who will be the target of ‘the next logical step’?

Who next will be preventively detained for the sake of ‘public safety’ (or ‘national security’)?
Who next will be told that while the Constitution is still the basis of the nation’s laws and jurisprudence, in this particular type of thing it doesn’t quite apply? But that even though the Constitution doesn’t apply, it’s still not un-Constitutional to do what is about to be done to you?
In the absence of civil insurrection or direct invasion, no Branch has the right to water down the Constitution.

And despite all the pain – even that intentionally inflicted by truly deranged among us, or by any one of us on a bad day – the first responsibility of the government in all its Branches is to preserve, protect, and defend the Constitution. The citizens are all grown-ups; we all know that life is not a laundered fairy-tale with no pain and no problems. We’ll deal with it without wrecking the one essential reality that actually distinguishes “America” from all the other approaches to government: No Constitution, no America – and no amount of flags or pious 4th of July patriotics will ever retain or recapture the genuine and marvelous essence of what ‘America” means.

NOTES

*Not in Massachusetts, yet, though. The Fells Acres Day School convicts are still under the axe, and the State’s top law enforcement folks – past and present – are still fighting exoneration of those convicted who are still alive. Of course, like the Bush-era torture lawyers, they are wise to realize that having the public go back and actually look at what they did would – at this point – not be in their best professional or political interests. They are most likely accurate in their concerns.

**See my Post “Travelling Backwards” on this site.

**See my Post “Paul Shanley and All of Us” on this site.

PAUL SHANLEY AND US ALL

IT WAS SO EASY

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.

NOTES

*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.