One day in January 1989, Eileen Franklin-Lipsker looked into the blue eyes of her six-year-old daughter and suddenly remembered a scene from her past of such surpassing horror that her mind had kept it buried from consciousness for decades.
Something about the youngster’s eyes triggered Franklin-Lipsker’s memory of a long-ago day when she watched helplessly while her father molested her childhood friend and then smashed the eight-year-old’s skull with a rock.
This February, 51-yearold George Franklin Sr. was convicted of the 1969 murder of Susan Nason and sentenced to life in prison.
“This may be the only case in which someone is convicted of murder solely on the basis of repressed memory,” says Elizabeth Loftus, a UW psychology professor and memory expert who had testified on behalf of George Franklin. Loftus describes herself as “stunned” at his conviction.
Loftus—a veteran of about 170 court cases involving such well-known defendants as Ted Bundy, the Night Stalker and the Hillside Strangler—characterizes the return of repressed memories of long-ago sexual abuse as potentially the “topic of the decade.” In recent months she has received a flood of letters from elderly women whose children have accused them, their husbands or other relatives of sexual abuse that occurred perhaps decades earlier.
Elizabeth Loftus
“What’s springing up all over the country are these civil sex abuse cases being brought by people suing their parents, their relatives, their friends, their teachers, their schools, their churches claiming they were abused 35 years ago,” she observes. “Imagine you’re a defendant trying to defend one of these cases?”
These cases are getting to court, Loftus notes, because a growing number of states, including Washington, have passed laws under which the statute-of-limitations “clock” for these offenses begins to run—not at the time of assault or when the victim reaches the age of majority—but at the time the memory of the abuse returns to consciousness.
The Seventh Day Adventist Church recently agreed to pay $1.4 million to a 31-year-old Washington state woman who belatedly remembered being repeatedly raped and molested, over a period of several years, by a teacher in the church-sponsored grade school she attended.
Loftus acknowledges that long-buried memories can be jarred back into consciousness, sometimes by an event that may seem unrelated to the original experience. “We’ve all had the experience of remembering something,” she says.
“But does it mean that these memories … have some special license or characteristic of reliability?” she asks. “No. … There’s been virtually no good scientific work to document either the special reliability of it or the special unreliability of it.” Psychological theory points toward unreliability because of the elapsed time since the event occurred and the “many many intervening events,” she says.
Loftus, who joined the UW faculty in 1973, is a veteran researcher and author or co-author of 17 books, most of them about human memory. Her most recent book, Witness for the Defense, co-authored with Katherine Ketcham, was published earlier this year by St. Martin’s Press. Loftus presents some of her own—often dramatic—courtroom experience to explain the nature of memory and why it’s possible that an eyewitness who confidently tells the jury “he’s the one who did it” may be tragically wrong.
“We don’t play our memories back like a video tape recorder,” Loftus explains. Each time we recall an event we actually reconstruct it. With each recollection, the original memory is altered by succeeding events, other people’s recollections or suggestions, increased understanding, or the presence of a new context.
As, for example, in her study where subjects viewed a film of a multiple-car accident. After the film, she asked some subjects: “How fast were the cars going when they hit each other?” She asked another group:
“How fast were the cars going when they smashed into each other?” Those queried with the verb “smashed” gave higher speed estimates than those in the “hit” group. Interviewed again a week later, twice as many of the subjects quizzed with “smashed” recalled seeing broken glass in the film (there was none) than those interrogated with “hit.”
But research findings like these don’t mean we can’t trust the substance of people’s recollections, insists Lucy Berliner, UW clinical assistant professor and director of research for the Sexual Assault Center at Harborview Medical Center.
Lucy Berliner
What Loftus’ work reveals, Berliner contends, is that certain things—such as a split second view of a situation or a coercive follow-up interview—make an individual vulnerable to memory-altering suggestions about peripheral details. There may be a question whether the traffic sign in the scene was a stop sign or a yield sign. “But I doubt you could suggest to these participants that there was no car,” adds Berliner, a member of the Sexual Assault Center staff since 1974 and a nationally recognized expert on sexual abuse.
Loftus, on the other hand, uses expressions such as “brainwashing” or “mind manipulation” to describe the degree to which post-experience suggestion can alter memory for people and events.
Police and prosecutors sometimes do it, Loftus notes, usually (but not always) without malicious intent. “They think they have the real guy,” she says, so they may create an unfair lineup or suggest to a witness that “this is the right man and we have to get him off the streets.” And the witnesses who are influenced into making an erroneous identification are genuinely convinced, she notes. They are not lying.
Therapists, also without malicious intent, can inadvertently distort or even create memories, including recollections of long-ago abuse, Loftus says.
“They say things like … ‘You know, I see a lot of women in my practice with your symptoms and most of them have been sexually abused as a child. Have you?’ If the initial answer is ‘No,’ but the therapist continues to probe, ‘No’ can eventually become ‘Well, maybe I was,’ ” Loftus cautions.
Berliner agrees that such insistence by a therapist is unacceptable. A small number of patients, struggling with painful feelings about their childhood or their parents, can be persuaded to blame sexual abuse when, in fact, none occurred.
But, she adds, patients often don’t recognize a connection between adult pain and childhood abuse. Furthermore, research shows that patients rarely talk about sexual abuse if the therapist doesn’t first introduce the topic. Since research also shows that childhood sexual abuse doubles the chances for adult depression—with suicidal risks for some victims—the therapist who doesn’t ask a patient about sexual abuse may be seriously remiss, Berliner believes.
Another therapeutic goal—providing an accepting and healing emotional environment—discourages any challenge to the accuracy of emerging recollections, Loftus observes. “That’s the philosophy of this treatment, and I think it can participate in either the creation of false memories or the labeling of ambiguous events as being nasty or more sexually inappropriate.”
“Getting at the heart of the problem is one of the hardest, most challenging research efforts I've had to worry about in my 20 years of being a psychologist and researcher on memory.”
Elizabeth Loftus
Loftus, who has conducted hundreds of experiments involving at least 15,000 people, says she’s “just dancing around the edges” of research into the accuracy of long-buried memories. “Getting at the heart of the problem is one of the hardest, most challenging research efforts I’ve had to worry about in my 20 years of being a psychologist and researcher on memory,” she says.
In these early stages, Loftus has a law student researching legal aspects of the question. Another student is interviewing therapists about how they assess the authenticity of these recollections. Other students are investigating how juries are likely to react to buried-memory testimony. “But you see, none of those really go to the heart of the most difficult question which is, how reliable are these memories?”
Measuring that reliability is technically possible but difficult to achieve. “It would involve my having access to clinical populations where my interests may not be the same as the therapist and the patient,” she notes.
“Where the therapist wants to believe the patient, and trust the patient, and make the patient feel safe to free the memory so the patient can be healed, I want to study and possibly support or possibly refute the memory.”
Investigating the suggestibility of children’s memories, particularly in the area of sexual abuse, must also be approached with care. “You can only go so far with a child in terms of trying to suggest things,” Loftus cautions. “We can’t really make a child think they were raped because it would be completely unethical.”
A University of California at Irvine study—known as “Chester the Molester”—went about as far as ethics permit, in Loftus’ view.
In this experiment, a kindergartener and a man, introduced to the child as a janitor named Chester, played together with a doll. The play was innocent. But if the young subjects were later questioned about their experience “in a very negative and accusing way,” Loftus reports, “virtually all the children were persuaded to believe that Chester was bad, that he played rough with the doll, that he bit the doll.”
Loftus’ child-memory studies support the “Chester the Molester ” evidence that youngsters are quite suggestible, possibly more so than adults. In one experiment, conducted in the late 1970s, preschool and kindergarten children viewed four films, each approximately one minute long. Post-film interviews included inquiries such as “Did you see a boat?” or “Didn’t you see a bear?” or “Didn’t you see some bees?” or “Did you see some candles start the fire?” In many cases, the child answered in the affirmative even though there was no boat, bear, bees or candles in any of the films.
Loftus offers two explanations: The original memory of the film had faded and the questioner was able to literally create the memory of a bear or, alternately, that the child really didn’t believe he or she had seen a bear or a boat but went along with the questioner out of eagerness to give the “right ” answer.
The quality of a child’s memory can have important, even fatal, consequences for defendants. In 1692, for example, a score of residents of Salem, Mass. were convicted of witchcraft and swiftly put to death based on the testimony of children ages five to 16.
In the early decades of the 20th century, however, children were considered unable to distinguish between truth and falsehood. In some situations, crimes against children could not be prosecuted unless an adult corroborating witness could be found. But increased concern for children’s rights, spawned by the activism of the 1960s, has changed that, and today children over age four are admitted to courtrooms and their testimony given serious consideration.
As, for example, in the McMartin Preschool case where Raymond Buckey and his mother, Peggy McMartin Buckey, were charged with 65 counts of child molestation at their Manhattan Beach, Calif., preschool. The case lingered for three years, cost $15 million and, ultimately, neither defendant was convicted of any of the charges.
One young witness was four when the alleged abuse took place, Loftus notes, seven when she first told a social worker, eight when she told the grand jury and 10 when she testified in court. “I really believe that those children, when they were young, were asked extremely suggestive and leading questions. If there were no memories to begin with, it’s the kind of thing that can lead to the creation of memory. I think those children, when they were ultimately testifying—let’s say at age 10, 11, 12, 13—to events that happened when they were five, six and seven, they may genuinely believe that these things happened even if they didn’t.”
Women’s and children’s rights and the growing recognition of the existence of sexual abuse helped to make buried-memory testimony admissible in court, says Loftus. “Any vote against proposed legislation like this looks, on the surface of it, like a vote for child abuse,” she notes.
Loftus, who was part of the McMartin defense team, occasionally receives hate mail from victims or members of their families. She expresses compassion for their pain and for their plight. “I would prefer to work for innocent people but there’s no way for me to know if somebody’s innocent or not.” And, she adds, the point of her testimony—how stress or fright affects memory or the quality of memory in children—is independent of whether or not an individual is guilty or innocent.
The courts—society’s formal arena for declaring that something was or wasn’t done—have left many disappointed adult survivors of childhood abuse, Berliner notes. “It’s a terrible mistake when people rely entirely on the criminal justice system. Criminal justice doesn’t determine truth. … It happened, whether or not there is a conviction … and no one should forget that.”
Achieving “justice” and personal peace begins with therapy, Berliner suggests. Gradually, as she or he gains emotional strength, a victim can tell other trusted people about the experiences. In some circumstances, directly confronting the perpetrator may help. Another option, which Berliner doesn’t necessarily encourage, is to share the information with the perpetrator’s friends, neighbors, even his or her boss. “You have the power,” Berliner notes.
“As long as it’s a secret he has the power.”
Eileen Franklin-Lipsker’s long-buried memories persuaded a jury that her father murdered Susan Nason. The only corroborating evidence, Loftus says, came from family members who testified that they, too, had been victims of abuse at his hands. That isn’t enough for her. “That peripheral, bad-character evidence goes to the fact that maybe he’s sleazy and maybe he’s capable of murder or whatever you would infer. But it’s irrelevant to whether Eileen Franklin really saw her father commit the murder.”