Cultic Studies Journal, Vol. 14, No. 2, 1997, page 12
Professor Scheflin’s Challenge
In a paper published in the Australian Journal of Clinical and Experimental Hypnosis,
Scheflin (1994) challenged defenders of the per se exclusion of hypnotic testimony to
respond to an actual case illustration of the problems with the per se rule. He raises these
problems again in his initial article in this series:
For example, Scheflin (1994) has challenged defenders of the per se rule to
respond to the following actual case illustration. No defender of the rule has yet
met the challenge. In a New York case described to Scheflin by a district attorney,
a 4-year-old girl told her mother that her father had, in effect, been molesting her.
The mother had a serious breakdown and required complete institutionalization.
The girl was raised by her father and the sexual abuse continued for several years.
The girl, however, would no longer talk about the abuse. A year of therapy could
not persuade her to talk even though there was solid medical evidence clearly
supporting the abuse. Finally, after hypnosis was used for relaxation, the girl told
the sad and sordid tale of her father’s repeated abuses of her [italics added].
Because New York excludes posthypnotic testimony, the girl was unable to tell her
story in court, and, therefore, could not identify her father as the perpetrator.
Despite the medical evidence corroborating the abuse, she remained in her father’s
custody [italics added]. How is justice served in this case? (Scheflin, 1996, p. 29)
There are several problems with this challenge. The first involves the question of
independent corroboration. If the medical evidence was entirely convincing, we cannot
fathom why the child was left in the home. Certainly, any evidence of abuse accumulated
over years would have led to the conclusion that whoever had custody of the child was an
inappropriate caretaker “solid” medical evidence would more than suffice in this regard for
any official child welfare agency. Whether the father or some other perpetrator committed
the abuse would seem irrelevant the fact of continuing abuse would be sufficient for
removing the child from the father‟s care. Thus, one wonders whether the medical evidence
was as “solid” as Professor Scheflin‟s informant would have us believe.
The problem of what does and does not constitute independent corroboration of hypnotically
created memory is a far-reaching one. For example, in his earlier article Scheflin (1996)
viewed Ms. Borawick as “able to present independent corroborative evidence of the truth of
the memories” (p. 32). In fact, this evidence comprised two letters from Ms. Borawick‟s
hospitalized schizophrenic sister, who, knowing the charges that Ms. Borawick had brought,
wrote her to say essentially, “me too.” Viewing the letters as independent of Ms. Borawick‟s
accusations is problematic, and the Court appropriately ignored them. (Incidentally, the
sister had recanted her charges well before the courts ruled on the matter.)
The problem of misidentifying quite marginal data as corroboration seems widespread.
Recent articles by putatively competent professionals have reported independent
confirmation for the accuracy of “birth” memories (Chamberlain, 1986) and memories for
past lives (Tarazi, 1990). Similarly, claims of confirmation of childhood sexual abuse have
been made after decade-delayed recovery of repressed memories. However, these claims
often have been based on questionable grounds, such as the presence of “body memories”
(Bass &Davis, 1988), flashback experiences (Terr, 1994), or the “survivor‟s” interpretation
of post hoc discussions with relatives (Herman &Schatzow, 1987 see also Harvey &
Herman, 1996). Thus, a good deal of what is said to be independent confirmation proves
ephemeral when considered seriously.
Alternatively, if we assume for a moment that the medical evidence in the abuse case cited
by Scheflin (1996) was “solid,” then we know that the abuse did occur. Verification of sexual
abuse is not necessarily difficult to obtain. For example, if vaginal penetration were part of
the molestation, well over 90% of children so assaulted can be identified with a simple,

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 13
unaided physical examination (Muram, 1989). Assuming such evidence existed, the central
issue, whether the child had been and continued to be abused, was a settled one. The
identity of the perpetrator and the details of the abuse may have been similarly clear. Then
we return to the question of why any child welfare agency would allow the child to remain in
the care of someone who allowed continuing abuse to occur. It is not the case that children
are removed from a home only when they can detail their mistreatment rather, they are
routinely removed for less reason than solid medical evidence of continuing sexual abuse.
But let‟s go one more step. Let‟s postulate both that such nonfeasance by a child welfare
agency is possible in a case known to the District Attorney‟s Office and that the problem of
getting the child to talk about the abuse is somehow critical to her removal from the home.
Under such circumstances, it seems inconceivable that only hypnosis could have relaxed the
young child sufficiently to allow her story to be told. While we do not know what techniques
were tried to no avail, any competent child psychologist or psychiatrist could suggest
several possibilities other than hypnosis for inducing relaxation, including the use of a mild
tranquilizer.
Finally, as Scheflin‟s own work on informed consent for forensic hypnosis suggests, all
involved should have been made aware of the very real possibility that hypnosis was not a
reasonable alternative under the circumstances that the child‟s hypnotically influenced
testimony would be excluded and she would therefore remain in the home. New York courts
have been ruling against hypnotically influenced testimony since 1904 (Austin v. Barker,
1904, 1906). Modern rulings have called for a per se exclusion (e.g., People v. Hughes,
1983). Given the possibility that the child would be returned to the father‟s custody, how
could this legal history not have been taken into account? In summary, we would suggest
that this “challenge” reflects a biased view of the medical evidence, extraordinary
incompetence on the part of the professionals attempting to protect the child, or is simply
unbelievable as presented.
The Relationship of Recall During Hypnosis with the Emergence of Memory Several
Months Later in the Borawick Case
Scheflin suggests that “the fact pattern in Borawick is not particularly unique thereby
making the case all the more important” (1996, p. 30). We generally agree, although there
are some unusual facts in the case. One of the more unusual aspects is the fact that several
months elapsed between Ms. Borawick‟s original, detailed recall of abuse during hypnosis
and the subsequent recall of these memories outside hypnosis. For Professor Scheflin, this
raises the question of whether memories retrieved posthypnosis were influenced by or
independent of it.
The fact that something follows in time does not mean that it was caused by what
preceded it. Suppose Ms. Borawick‟s memories did not return until 1 year, 5 years,
or 10 years after the hypnosis sessions. Did the hypnosis “refresh” those memories
simply because it preceded them? The Second Circuit fails to analyze this issue,
and no American court appears to have addressed the problem. (1996, p. 31)
Obviously, when one event precedes another, most often the two will not be related at all,
never mind causally related. The question is whether it is reasonable to conclude that in this
particular case, there was a causal link. Although the evidence is circumstantial, we believe
it clear enough to make such a link apparent.
Much of the time, age regression or hypermnesia instructions given to suitable subjects will
result in alterations in posthypnotic recall but ordinarily, only relatively brief periods of
posthypnotic amnesia are suggested. In forensic contexts, the hypnotist typically suggests
that the subject‟s memory will continue to improve after hypnosis ends. Unfortunately,