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viability. Other commentators have found additional serious deficiencies and inaccuracies in
the 1985 AMA Report (Beahrs, 1988 Frischholz, 1996 Reiser, 1986).
Courts and legislatures should not rely on the 1985 AMA Report because it distorts the
science, is erroneous in its conclusions, has been found to have numerous serious
deficiencies, and because it has now been repudiated by at least half of the original
members.
The Borawick Case
Karlin and Orne “see Ms. Borawick as a victim of inappropriate suggestions in hypnotic
treatment” (p. 49, n. 2). Their analysis of the Borawick case, and their views about forensic
hypnosis in general, flow from their belief that hypnotic encounters invariably contaminate
memories. But what are the facts? According to the court, Ms. Borawick, during an hypnotic
regression session conducted by a lay hypnotist, recalled that she had been sexually abused
as a child by her aunt and uncle. Ms. Borawick was amnestic after the hypnosis, and the lay
hypnotist did not inform her of what she had alleged during trance. Furthermore, the lay
hypnotist testified that he had been careful to avoid undue suggestion and did not have any
expectation that Ms. Borawick would claim to have been abused decades earlier. Nothing in
the record suggests that the lay hypnotist expected these memories, implanted these
memories, suggested these memories, or even pursued the therapeutic implications of
these memories. Several months after the last hypnosis session, Ms. Borawick began
consciously to recall sexual abuse by her father and others, including her aunt and uncle.
While Karlin and Orne may be correct in their assumption that the lay hypnotist implanted
the memories, it is equally as plausible that he did not. The absence of an audio or visual
record puts us in a Buridan‟s Ass situation: there is no more reason to assume that the
memories were implanted than to assume that they have a basis in fact. The Karlin and
Orne assumption naturally leads to per se exclusion rules, whereas my view supports the
conclusion that in some cases the memories might be a product of confabulation and
suggestion, in others they might be accurate. The Karlin and Orne view assumes that the
memories will never be true, but this view is unsupported by overwhelming evidence that,
in many cases, recalled childhood sexual abuse has later been corroborated by independent
physical evidence, including confessions by the perpetrator.11
The Hard Cases
Let us compare my solution to the hard cases with the solution offered by Karlin and Orne.
In each of the following cases, Karlin and Orne would refuse to allow the complaining
witness to have a day in court. They necessarily conclude that in all of these cases the
memories are no longer reliable. My solution, by contrast, is to require each complaining
witness, at a pretrial hearing, to demonstrate that the hypnosis involved more likely than
not did not contaminate the memories by making them unreliable (Scheflin, 1994a).
Case 1: A 4-year-old girl went to her mother and said, “Daddy‟s touching me in my
private parts.” The mother had a breakdown and was hospitalized. The child, now in the
custody of daddy, learned not to talk about this --look what happened to mommy
when she was told. Several years pass and the molestations continued. Medical records
of the child were consistent with molesting, but the child would not talk when asked.
After a year of therapy, hypnosis was used and the child talked about the molesting.
New York courts would not admit her posthypnotic testimony despite the fact that there
was independent medical corroborating evidence that she was molested. Without her
evidence, there was no proof that daddy was the molester. Daddy retained custody.
Case 2: A patient comes to a therapist for depression. There are no memories of abuse
as a child and no discussion of the subject in therapy. Hypnosis is used as a relaxation
technique. While in trance, the patient has a recollection of having been abused years

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earlier. The therapist stops the hypnosis and it is not used again. Additional memories
later surface outside therapy two months later. Independent corroboration of the truth
of the memories is available.
Case 3: A patient comes to a therapist, and hypnosis is used for relaxation. One year,
or 5 years, or 8 years later, the patient has a memory of childhood sexual abuse.
Case 4: A person uses a self-hypnosis audiotape purchased in a store. After listening to
the tape, 2 months later, memories of childhood sexual abuse emerge.
It is most important to observe that Karlin and Orne’s view always disbelieves true
victims, and not one of them will be permitted to testify. By contrast, I agree with the
sentiment of the Michigan Court of Appeals in Lemmerman v. Fealk (1993), where the court
noted that repressed memory cases always involve a delicate balance between harm to the
defendant who must stand trial if the claim is stale, and harm to the plaintiff who is denied
a day in court if the facts are true. What tips the balance?
We agree with those jurisdictions which initially consider as more weighty the harm
to the plaintiff denied a remedy than the harm to the defendant confronted with a
stale claim.... The fact that sexual molestation of children exists, is extensive and
leaves deep scars on its victims can no longer be seriously questioned. Adults who
have repressed child sexual abuse bring to the courts unusual circumstances and
injuries not readily conforming to the ordinary constructs on which periods of
limitations are imposed. (p. 230)
In essence, as the court later notes, “to protect parents or relatives at the expense of the
children works an intolerable perversion of justice” (p. 230). The Supreme Court of Michigan
ultimately decided to let the legislature make the final decision in repressed memory cases.
(Lemmerman v. Fealk, 1995). Under my view, all alleged victims must prove before trial
that it is more likely than not that their recovered memories are reliable.
If Buridan‟s Ass forces the social choice between rejecting all claims of repressed memory,
and thereby favoring parents, or permitting these claims to have a stringent case-by-case
analysis to determine whether enough evidence of reliability is available, thereby favoring
children, I stand with the overwhelming majority of courts and legislatures that favor
protecting children by applying the delayed discovery doctrine to memories of childhood
sexual abuse (M. R. Williams, 1996).
Even before the delayed discovery cases reached the courts, the law had already made it
clear that children are entitled to special protections from violence. The mandatory reporting
statutes that were enacted beginning in the 1960s demonstrate society‟s concerns that
abuse of children could only be prevented by sacrificing the sacred trust of confidentiality
that obtains between a therapist and a patient (Kalichman, 1993). Though parents, often
correctly, cried “false accusations” after each state legislature mandated reporting
suspected abuse, legislatures continued to maintain the priority of children over parents.
Some recent examples may illustrate just how far society is willing to go to protect children
from abuse. Two convicted killers --one in Florida and one in Maryland --received
executive clemencies from their respective state governors because they had killed a parent
who had repeatedly abused them (Weidlich, 1995). During the last decade, the “battered
child syndrome” has started to result in some acquittals and some convictions on lesser
charges (Weidlich, 1995). The plight of children was recently the subject of a disheartening
New York Times editorial (Editorial, 1996):
If a true measure of a society is how well it treats its children, then America is in
trouble. Far too many of the nation‟s youngsters are the victims of poverty,