Sept. 14, 2009 -- A defrocked priest who has appealed his rape conviction in Boston is now stirring controversy in the psychiatric community by challenging the notion of repressed-recovered memories, or dissociative amnesia.
Paul Shanley, 78, was sentenced in 2005 to 12 to 15 years for raping a 6-year-old boy in a Boston suburb parish in the 1980s.
During Shanley's trial, the then 27-year-old victim testified that he never remembered the abuse until 2002 when news reports of other men accusing Shanley of sexual assault triggered his own memories -- disturbing scenes of Shanley pulling him out of Sunday school over a six-year period to rape and grope him in the bathroom, the confessional and the pews. Shanley had pleaded not guilty.
Now, Shanley's lawyers assert that jurors never should have heard the victim's tearful account because the psychiatric community cannot agree on whether repressed memories truly exist.
"It's a very difficult issue for people to understand because you have a group of people who say this exists, you also have a large group of people to say that it has not been established," said Robert F Shaw Jr., Shanley's attorney.
The Meaning of a Memory
The judge in Shanley's trial accepted the theory of repressed-recovered memories, as did a superior court that heard his first appeal in November.
But in an appeal to the Massachusetts Supreme Judicial Court Thursday, Shaw submitted a "friend of the court" brief backed by about 100 prominent experts in psychiatry, neuroscience, cognitive science and psychology that dismissed the validity of repressed memories.
The brief argued that "'repressed-recovered memories,' 'dissociative amnesia' and related concepts are best described as pernicious psychiatric folklore devoid of convincing scientific evidence. Such theories are quite incapable of reliably assisting the legal process."
Shaw said, "We are not talking about not thinking about something and later remembering it and we're not talking about somebody who has some memory distortion and then can't remember part of a experience later. We are talking about somebody who was in a concentration camp and then forgot it ever happened."
Lawyers Debate How Much One Can Forget, or Repress
Shanley's lawyer submitted an affidavit by Harvard researcher Dr. Harrison Pope, who cited a wealth of research and argued, "adding up the more than 14,000 victims reported in more than 120 studies … it is inconceivable that 'repressed memory' could be a valid and accepted scientific theory, yet not be demonstrated in a single unequivocal case reported throughout this vast literature."
But representatives for the Leadership Council for Child Abuse and Interpersonal Violence -- another group of prominent psychiatrists and psychologists -- said that judges allow repressed-recovered memory as testimony "all the time" and that it is, indeed, an accepted phenomenon among psychiatrists.
"Even this [Massachusetts] court has already decided that it's a well-settled question," said Wendy Murphy, adjunct professor at the New England School of Law and founder and director of the Victim Advocacy and Research Group in Boston.
Although courts have allowed repressed memories, several convictions in high-profile cases have been overturned based on repressed- and recovered-memory testimony. In 1995, for instance, a federal judge overturned the 1990 conviction of George Franklin Jr.
Franklin's daughter accused him of the 1969 murder of her 8-year-old best friend 20 years after the murder, saying she had recovered a memory of her father holding a rock over her friend's head. The judge overturned the verdict after Franklin's daughter accused him of a second murder.
Yet Murphy asserts repressed memories, in the form of dissociative amnesia, are considered a valid phenomenon by psychiatrists across several countries.
"The way that you know for certain that it is not a scientific dispute, is if you look at the DSM -- that's essentially the bible for psychiatrists," Murphy said of the Diagnostic and Statistical Manual of Mental Disorders.
Can Psychiatrists Judge the Judge?
Indeed, "dissociative amnesia" was an entry in the extensively peer-reviewed and researched DSM, which serves as the equivalent of the Physician's Desk Reference for those in the mental health field.
"Who are we as the judicial branch to say otherwise that it's not accepted in psychiatry," Murphy said.
Intentionally or not, legal experts say Shanley's appeal also challenges a 1993 Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, that set a standard that judges -- not an academic or scientific community -- should decide which expert testimony is acceptable for the court.
"It's where the judge gets to serve as gatekeeper," said Rosanna Cavallaro, a professor who teaches evidence at Suffolk University Law School in Boston. "The question for the judge is whether the methods and techniques provided by the expert are legitimate."
With the exception of banning lie-detector results as evidence in many courts, Cavallaro said most appellate courts now leave the discretion of which expert is credentialed enough for testimony to the individual judge.
"What the court was worried about was that there would be this time lag," Cavallaro said. "For example, what if I'm the first scientist to say this drug can treat cancer, but the general acceptance among doctors wouldn't agree for five to 10 years."
But unlike in the case of cancer, Cavallaro pointed out, psychiatrists can't set up controlled abuse experiments to test a theory. Usually, psychiatrists can only survey and ask abuse victims after the crime.
Complicating the issue further are the prominent clinical psychiatrists who report treating repressed memories first hand -- even if it's rare.
"It really raises the whole question, what's the difference between forgetting and repression -- which is not the same as forgetting," said Dr. Philip R Muskin, a professor of clinical psychiatry at Columbia University in New York City.
"I've certainly seen patients who said, 'I was in an accident and we were driving down the road' and the next thing they know is they're in a neck brace -- and I have seen patients who have been assaulted who say, 'I can't remember the details of what happened but I know it happened'," Muskin said.
Yet while Muskin said he has seen patients who have blocked out moments in a traumatic memory, he has not yet heard of someone repressing the memory of the entire event.
"Can people truly repress violently traumatic events so they don't know they happened for years and years and years, and then they can remember it years later? The answer is no," Muskin said. "Especially in a case where someone who had just been functioning fine, and has no problems, relates well to men and women for decades -- there should be some echo of the traumatic experience that happened."
On the other hand, Muskin was cautious to say extreme cases of repressed-recovered memories could "never happen" in a patient.
"To say that it's absolute either way is just unfair to science," he said.