'Repressed memory' key to lawsuits
Paul Busa was serving as a military security officer in Colorado in February, when he picked up a newspaper and read about the Rev. Paul Shanley allegedly molesting a young child in Newton, Mass.
According to Mr. Busa, the article triggered long-repressed memories of being abused as a boy in the Newton church in the 1980s by Father Shanley. Shortly thereafter, Busa filed a civil suit against the Roman Catholic Archdiocese of Boston, claiming sexual abuse by the priest.
Busa's action is rooted in a controversial legal doctrine known as "recovered memory" that now lies at the heart of many of the lawsuits against the Catholic church in the sexual-abuse scandal.
Across the country, many prosecutors and victims have been prohibited from taking action against priests because the alleged incidents occurred years earlier and statutes of limitations have run out. But, since the 1980s, at least half the states have extended their expiration laws to include instances where suppressed memories of abuse are later recalled by victims.
As a result, the argument undergirds some of the most high-profile cases now moving forward in at least five states. Yet whether anyone can entirely repress and later recall memories of childhood abuse remains the subject of intense debate among psychiatrists and lawyers alike.
"Courts are more open to allowing the expert testimony [on the issue], but that doesn't mean there's a higher rate of acceptance," says Laurie Levenson, a professor at Loyola Law School in Los Angeles.
The changes in state law allowing recovered memory were initially crafted with the aim of protecting female victims of incest who came forward as adults. Those laws have now propelled lawsuits against priests in Arizona, California, Oregon, and Illinois. Here in Massachusetts, Busa is one of four alleged victims who have invoked the doctrine in suits against the archdiocese.
While states may recognize repressed memory, the theory is highly controversial in the courtroom. Some psychiatrists, for instance, doubt the validity of the concept. Harvard Medical School professor Harrison Pope, for one, argues that no studies have proven that repressed memory, rather than some other cause such as temporary memory loss or a suggestive therapist is the reason for the sudden recollections.
"At present there is insufficient scientific evidence that it does exist," says Dr. Pope.
High courts in some states, including Massachusetts, have been careful to distinguish between repressed memories that have never been in a person's consciousness and suppressed memories in which a person is aware of a past traumatic event but consciously avoided thinking about it.
Juries, too, are often suspicious. "Jurors want to know why it is they suddenly remember something they didn't before, and if there's money involved," says Ms. Levenson. "Was their memory triggered or was a false memory implanted?"
But attorneys for abuse victims say repressed memories are a real phenomenon. "I have no doubt that the trier of fact will recognize the validity of these memories," says Busa's attorney, Roderick MacLeish, who added that not all of his client's memories of the abuse were repressed.
In the case of priests, Mr. MacLeish says the experience of being abused by a trusted clergy member can make repressing memories even more likely. "They're told to listen to the priest and do whatever they say," MacLeish says. "In a Catholic culture, this is absolutely devastating."
WHAT prompts alleged victims to recall traumatic events varies. Some may begin to remember slowly during therapy or if they see a relative experience something similar, says Cynthia Bowman, a law professor at Northwestern University in Evanston, Ill.
The lag between forgetting and remembrance can be long. For David Schmidt, it was almost half a century. He filed suit last month in Oregon for allegedly being abused as a child in the 1950s by two Catholic priests. Oregon doesn't start the clock running on sex-abuse suits until the abuse was discovered or should have been discovered.
For decades, Schmidt says he had no conscious memory of being fondled and raped by a priest at the age of seven. He also says he never thought about another priest who performed a lewd act in his presence while he attended a Catholic seminary.
Those memories finally resurfaced while Schmidt underwent psychological treatment in 1999, says his lawyer David Slader. Since filing his suit, other victims have come forward to collaborate his story, Mr. Slader says. "This is something he didn't invent out of his mind involving innocent people," he says.
Recovered memories did not play a role in the criminal charges filed against Shanley, who was arraigned this week in Cambridge, Mass., on charges of raping one unidentified victim. The alleged incident was recent enough that the statute of limitations didn't apply. Yet the validity of Busa's memories may still become an issue in the trial.
"There'll probably be experts lined up on both sides," says Brownlow Speer, chief appellate attorney for Massachusetts' state public-defense agency.