Cultic Studies Journal, Vol. 13, No. 1, 1996, page 23
Once again, crusading experts left their laboratories and lecture halls to enter courtrooms
and warn that people who have been severely traumatized as children do not forget that
trauma (Loftus &Ketcham, 1994). If memories of childhood sexual abuse are unavailable
for decades of an adult‟s life until suddenly recovered, usually in therapy, then the abuse
did not occur (Ofshe &Watters, 1994).
These experts have not fared as well as their hypnosis predecessors, though they are
equally wrong in their presentation of the available scientific literature. Courts and
legislatures have been less willing to buy the argument that repressed memories are
illusory. Indeed, legislators and judges in half the states have provided additional
protection, by way of delaying the running of the statute of limitations on childhood sexual
abuse cases, to victims who have repressed their memories of the abuse they suffered as
children (Bowman &Mertz, 1996). Furthermore, every study conducted on the reality of
repressed memories has found that it exists (Brown et al., in press Scheflin &Brown, in
press). Repressed memories, more accurately called “dissociative amnesia” by the DSM-IV,
have been well documented in the scientific literature across all traumas, including wars,
natural disasters, the Holocaust, violent criminal conduct, physical abuse, and childhood
sexual abuse. Furthermore, recent studies suggest that repressed memories are as accurate
as available memories (Williams, 1995).
Borawick v. Shay pits one of the most prestigious and influential courts in the country
against these formidable hypnosis and memory issues. Although some experts and the
media have distorted the scientific literature, misstated the factual circumstances of
important cases, and testified contrary to current knowledge, Borawick does a fair job of
avoiding most of the taint of the current pseudoscience being peddled by the “false
memory” advocates on one side of the issue, and the “recovered memory” therapists on the
other side.
The court notes that the forensic hypnosis literature is based on “fact situations where the
hypnosis is specifically directed to the witness‟s recollection of known events, rather than
where repressed memories of past traumas previously unknown simply emerge following
hypnosis.” The court, citing only law review articles, and ignoring the increasingly
sophisticated scientific studies, concludes that the same dangers earlier identified with
investigative hypnosis are also present when repressed memories occur following hypnosis.
The scientific literature, however, demonstrates that (1) the dangers listed for hypnosis do
not exist if hypnosis is correctly used, and (2) repressed memories (traumatic amnesia) are
not less accurate than ordinary memories. Brown et al. (in press) assess this literature and
conclude that when hypnosis is properly used, the accuracy of repressed memories is not
adversely affected.
The Borawick court correctly rejects the argument that repressed memories are unreal. The
court never doubts the validity of such memories, and rightly so. The better reasoned
judicial opinions that have addressed the issue have also concluded that repressed
memories are valid (Isely v. Capuchin Province, 1995 Shahzade v. Gregory, 1996 State v.
Walters, 1995).
Conclusion
Is the per se exclusion wise, especially in an era when courts, legislatures, and popular
referendums and initiatives are mandating that evidentiary rules be restricted in order to
permit juries to hear and examine all relevant testimony and evidence? Only if justice is
better served by a total elimination of all posthypnotic testimony. The only way justice
would be so served is if (1) the relevant science supports the above-listed objections to the
use of forensic hypnosis, and (2) total exclusion in all cases was necessary to avoid
prejudice.
Once again, crusading experts left their laboratories and lecture halls to enter courtrooms
and warn that people who have been severely traumatized as children do not forget that
trauma (Loftus &Ketcham, 1994). If memories of childhood sexual abuse are unavailable
for decades of an adult‟s life until suddenly recovered, usually in therapy, then the abuse
did not occur (Ofshe &Watters, 1994).
These experts have not fared as well as their hypnosis predecessors, though they are
equally wrong in their presentation of the available scientific literature. Courts and
legislatures have been less willing to buy the argument that repressed memories are
illusory. Indeed, legislators and judges in half the states have provided additional
protection, by way of delaying the running of the statute of limitations on childhood sexual
abuse cases, to victims who have repressed their memories of the abuse they suffered as
children (Bowman &Mertz, 1996). Furthermore, every study conducted on the reality of
repressed memories has found that it exists (Brown et al., in press Scheflin &Brown, in
press). Repressed memories, more accurately called “dissociative amnesia” by the DSM-IV,
have been well documented in the scientific literature across all traumas, including wars,
natural disasters, the Holocaust, violent criminal conduct, physical abuse, and childhood
sexual abuse. Furthermore, recent studies suggest that repressed memories are as accurate
as available memories (Williams, 1995).
Borawick v. Shay pits one of the most prestigious and influential courts in the country
against these formidable hypnosis and memory issues. Although some experts and the
media have distorted the scientific literature, misstated the factual circumstances of
important cases, and testified contrary to current knowledge, Borawick does a fair job of
avoiding most of the taint of the current pseudoscience being peddled by the “false
memory” advocates on one side of the issue, and the “recovered memory” therapists on the
other side.
The court notes that the forensic hypnosis literature is based on “fact situations where the
hypnosis is specifically directed to the witness‟s recollection of known events, rather than
where repressed memories of past traumas previously unknown simply emerge following
hypnosis.” The court, citing only law review articles, and ignoring the increasingly
sophisticated scientific studies, concludes that the same dangers earlier identified with
investigative hypnosis are also present when repressed memories occur following hypnosis.
The scientific literature, however, demonstrates that (1) the dangers listed for hypnosis do
not exist if hypnosis is correctly used, and (2) repressed memories (traumatic amnesia) are
not less accurate than ordinary memories. Brown et al. (in press) assess this literature and
conclude that when hypnosis is properly used, the accuracy of repressed memories is not
adversely affected.
The Borawick court correctly rejects the argument that repressed memories are unreal. The
court never doubts the validity of such memories, and rightly so. The better reasoned
judicial opinions that have addressed the issue have also concluded that repressed
memories are valid (Isely v. Capuchin Province, 1995 Shahzade v. Gregory, 1996 State v.
Walters, 1995).
Conclusion
Is the per se exclusion wise, especially in an era when courts, legislatures, and popular
referendums and initiatives are mandating that evidentiary rules be restricted in order to
permit juries to hear and examine all relevant testimony and evidence? Only if justice is
better served by a total elimination of all posthypnotic testimony. The only way justice
would be so served is if (1) the relevant science supports the above-listed objections to the
use of forensic hypnosis, and (2) total exclusion in all cases was necessary to avoid
prejudice.
