Cultic Studies Journal, Vol. 14, No. 2, 1997, page 28
Placed in the contemporary debate concerning allegations of sexual abuse, the impact of the
Buridan‟s Ass problem has not gone unnoticed by courts struggling to resolve it. The
excruciating difficulty in these cases is most cogently stated by Judge Jung of the Family
Court in Fulton County, New York, in Karen B. v. Clyde M.(1991):
The Court is faced with a dilemma that often confronts a jury or judge, i.e., experts
have rendered diametrically opposed opinions. The consequences of this Court‟s
decision to Mandi are potentially enormous. If she is placed with her mother, and
the father limited or excluded from having contact with her, when in fact he has
done her no harm, then a tremendous injustice results. If custody is placed with
the father, and he has sexually abused her, an equal injustice with a potential for
future harm ensues.3
In regard to the two issues to be addressed here, Karlin and Orne, like myself, are in the
position of Buridan‟s Ass. Suppose Sarah, a woman in her early 40s, tells us that after
hypnosis she has recovered a memory of being sexually abused by her father 30 years
earlier. Even though, for more than three decades, she had no recollection of the molesting,
she is adamant that the memory reflects reality. Sarah‟s father, William, vehemently denies
the molesting ever occurred. Both father and daughter appear equally sincere, and each one
appears equally persuaded that he or she is right.
What is the historical truth? Karlin and Orne and I are asked how to handle the case. We all
desire to do the right thing and see that justice prevails. The differences between how I
solve the Buridan‟s Ass dilemma and how Karlin and Orne do so are the subject matter of
this response. Before beginning, I would like to emphasize the fact that our goals are
identical and they are pursued in good faith--to be fair, to be just, and to do what is right.
Our dialogue hopefully will shed some light on these significant social, scientific, and legal
issues.
False Premises, False Logic, False Conclusions
In this section I will attempt to show that the Karlin and Orne premises are fallacious, or
their logic faulty, thereby leading them to false conclusions. I begin by noting that we must
carefully distinguish between matters of science and matters of opinion or belief. For
example, whether repressed memory exists, or whether it is, in the grandiose, and
erroneous, language of Ofshe (1993), “the psychiatric quackery of the twentieth century,”
comparable to the performance of “lobotomies,” (Ofshe &Watters, 1994), must be a matter
of science. While some might believe that the Earth is flat, science informs us otherwise.
Upholding the belief that the Earth is flat in the face of the overwhelming scientific evidence
to the contrary is simply ignorance or bias. Thus, on some matters, the debate between
Karlin and Orne and myself should be resolvable by looking at what the science says.
On other matters, however, such as the wisdom of applying a per se exclusion rule, our
differences are on matters of policy, not science, thereby allowing reasonable minds to
differ. But even in these policy matters, our conclusions may be based on quite differing
interpretations of the underlying science. Thus, what the science says about the relationship
between hypnosis and memory is fundamental to our answers to the policy questions
concerning the wisdom of total exclusion rules.
Confirmatory Bias
One of the major problems with the Karlin and Orne paper is an exaggerated view of the
facts coupled with a confirmatory bias in favor of believing in the ease with which false
memories may be created or implanted. They are thereby inclined to perceive every event
as proof of their rather extremely stated thesis, which causes them to unintentionally omit
or misremember data so that it confirms their views. For example, in the second paragraph
on page 43, they refer to the Cardinal Bernadin incident as evidence that memories

Cultic Studies Journal, Vol. 14, No. 2, 1997, page 29
recovered in therapy during an hypnotic age regression can lead to false accusations. But
what they do not tell the reader is that the therapist in that case was not only untrained in
hypnosis, but also unlicensed as a psychologist, having received a master‟s degree in
applied psychology 5 years earlier from an unaccredited institution (Crawford, 1994). The
therapist was therefore incompetent to be working with patients at all.
If we remove the Karlin and Orne confirmatory bias, a different viewpoint emerges. It is
clear that what is troubling in the Cardinal Bernadin situation is the false accusation itself
and not how it came to be false. Thus, the Cardinal would have been equally as devastated
if the accuser had based his false allegation on (1) a personal vendetta, (2) an overly
suggestive reading of what Karlin and Orne call “recovered memory therapy” literature, (3)
a bad therapist who encouraged the belief that the Cardinal was a molester, or (4) a
distorted memory of another priest who actually did molest the accuser. Also, the
accusation would have been as devastating, and as false, if it were claimed by the alleged
victim that he never lost the memories. It is the falsity of the accusations, and not their
source, that is troublesome. It is not crucial, and hardly relevant, that hypnosis was
involved in this particular case. Indeed, most cases of false allegations of childhood sexual
abuse have not involved hypnosis.
The confirmatory bias of Karlin and Orne further appears in their discussion of the Shirley
(1982) case, which was one of the three major cases they specifically selected to emphasize
in their argument. Karlin and Orne state that after Catherine, the alleged victim, was
hypnotized, she stopped telling multiple versions of her story and instead her story “did not
waver from her final version, which she told in court with considerable certainty” (p. 57).
The implication here is that the hypnosis solidified a now consistent, but completely false,
story which was told with confidence and coherence. Karlin and Orne have misremembered
the facts, however. According to the California Supreme Court recitation of what actually
occurred, the exact opposite of what Karlin and Orne report turns out to be true. The
second paragraph of the majority opinion, written by Justice Mosk, clearly states:
The jury believed part of Catherine‟s story, as it convicted the defendant of rape
but it also apparently found that she was lying when she described in detail the
alleged act of oral copulation, as it acquitted the defendant of that charge. The jury
doubtless had a difficult task, since Catherine‟s performance as a witness was far
from exemplary: the record is replete with instances in which her testimony was
vague, changeable, self-contradictory, or prone to unexplained lapses of memory.
Indeed, on occasion she professed to be unable to remember assertions that she
had herself made on the witness stand only the previous day. (p. 245)
Thus, the hypnosis was ineffective in fabricating a coherent, consistent, false story and the
jury was not awed by the use of hypnosis --they reached a reasoned approach which
accepted some parts of the hypnotically refreshed testimony and rejected other parts of it,
as juries do with testimony that was not hypnotically refreshed. Karlin and Orne‟s false
memory I presume was not the product of hypnosis. Rather, it was one of those tricks
memory naturally plays as they note on page 73, we are likely to remember facts and
events in a way that they are more favorable to us or our ideas than may actually have
been the case. The confirmatory bias occurs without the use of hypnosis.
Judging Professionals by the Conduct of Lay Practitioners
One cannot fairly attack hypnosis or therapy performed by competent, licensed
professionals by pointing to the exploits of poorly trained, nonlicensed practitioners. Yet,
when Karlin and Orne move from the Cardinal Bernadin episode and turn to the heart of
their defense of the per se exclusion rule, from the more than 700 appellate cases involving
hypnosis, and the hundreds more trial court cases, they specifically chose three cases to
talk about as proof of the wisdom of their antihypnosis position (pp. 54B58). All three cases