Sex panics make for bad law. It could be said that they make for bad science, too, except that what has driven some of the most notorious legal cases to emerge from such panics has been more a masquerade of science, a belief tricked out in the language of medicine and social science to distract from the mumbo jumbo at its core. The Massachusetts Supreme Judicial Court is set to be the latest arena to test that belief, taking up the admissibility of "dissociative amnesia," or "repressed memory," in a case that some powerful interests no doubt hoped was as settled as the grave.
The petitioner is Paul Shanley, a once famous "street priest" who became infamous in the sex abuse scandal in the Catholic Church, was tried in 2005, convicted and sentenced to twelve to fifteen years in prison. Because the media, particularly the Boston Globe, were central to the allegations and the frenzy that provided the context, it has always been difficult to see the case plainly. But because justice, as opposed to its many stand-ins, is blind, imagine yourself or one you love as the defendant at the bar.
In October 2004 Dr. Daniel Brown, a Boston psychologist, took the witness stand in a pretrial hearing at Middlesex Superior Court and offered what would become the state's only foundation for its prosecution. There was no evidence in the case, just a claim that depended entirely on faith. Dr. Brown was in the courtroom to give it the imprimatur of science.
The accuser asserted that from the age of 6, in 1983, he had been raped and otherwise indecently assaulted by the defendant for three years in a busy church on Sunday mornings. Each assault, it was alleged, instantly erased his memory of what had just happened, so that the boy re-approached the defendant in a state of innocent unknowing, to be assaulted again, to forget everything again and again, and then move on in life without the slightest inkling of the experience until twenty years later, when it all came back to him.
Dr. Brown had appeared as a certified expert in courtrooms for years, stating that the mind's capacity for such "massive repression" was generally accepted as demonstrable fact in the psychological professions. That was always false. By 2004, however, as compellingly detailed in documents now before the Supreme Judicial Court, the literature in major scientific publications questioning the validity of repressed memory was weighty. Many of the therapists whose work Brown recommended had been disgraced, stripped of their licenses and revealed as dangerous frauds in successful malpractice suits.
Brown's own testimony had been rejected as unreliable by courts in New Hampshire and Rhode Island. Nevertheless, he was the expert favored by the Commonwealth of Massachusetts, and defense counsel offered not a single study or witness to rebut. Almost fifty years of research on memory and trauma, involving 120 studies and more than 14,000 people with documented experiences of rape, sexual abuse, torture, death camps, war or other horrors, reveals no evidence of repressed memory--that is, an inability to remember that cannot be explained by ordinary forgetting, infantile amnesia, intoxication or brain injury. Ignorant of that record, Judge Stephen Neel ruled that "the theory of repressed memory is generally accepted by the relevant scientific community." Thus, it was deemed admissible to buttress the criminal allegations.
When prosecutors first brought those, in 2002, there were four complainants, all friends or acquaintances, who reported identical experiences of sexual abuse, immediate memory loss and instantaneous remembering within a few days of one another. This quadruple "recovery" of memory began when one of them read an article in the Globe.
Although, as initially charged, the defendant was a man who had had "unnatural sexual intercourse" with four small children in the same period, at the same time on Sundays, in the same circumstances for years, there was never any physical evidence. No blood, no rips, no teary eyes or flushed faces or even dishevelment among the boys. None of the many people who were in the church every week when these crimes were supposedly happening, including the mother of one of the boys, ever noticed a thing. No one saw any of the boys alone with the defendant. No one corroborated essential details of their stories; in fact, many witnesses, including the accuser's mother-in-law, who was also on the scene every week, contradicted them.
Ultimately the DA dropped three men from the case, their shaky claims further burdened by mental illness, gambling, drug use, prison time and prior statements of being raped by family members. The last man standing had been in the Air Force and was a newly married fireman at the time of trial. Under oath he re-remembered some of his "memories" differently. The prosecution's expert witness, a confederate of Dr. Brown called Dr. James Chu, testified that this was perfectly consistent with dissociative amnesia. Every contradiction in the accuser's story, like every problem in his past, was only further proof of sexual abuse and of his sincerity.
Dr. Chu's testimony revealed the leap of faith at the heart of repressed memory belief. "There are patients who report no amnesia," he said, "and I don't know whether they in fact have no amnesia or that they just haven't yet remembered something that they forgot." Defense counsel floundered in the face of this purported scientific expertise. Dr. Chu admitted that the concept of the brain erasing all knowledge of a traumatic event until some mysterious mechanism unlocks the deep freeze of memory "doesn't make a lot of intuitive sense." He was relying on the stories patients told him, the symptoms from which a therapist can "construct meaning," as Dr. Brown had put it, and the studies based on people's self-reporting, without controls, methodological standards, error rates; in other words, without scientific validity.
In the absence of effective cross-examination or an informed defense, though, Dr. Chu's testimony conferred the aura of a scientific benediction. Use your "common sense," the prosecutor told the jury; believe the expert, believe the victim. She hadn't proved a thing, but the jury believed them.
Almost no one in the press questioned the "science." Scandal had been so profitable. After Roderick MacLeish Jr., a personal injury lawyer who brought a civil case on behalf of the four accusers, held a dramatic PowerPoint press conference in 2002, the Globe pronounced the priest "depraved" and went on to collect its Pulitzer for retailing MacLeish's most inflammatory claims. The immense documentary record on Shanley never supported them, so the Globe's reporters (and others from The Advocate to the New York Times to Vanity Fair) either never analyzed the documents independently or misrepresented them. Nor did they submit their interviews to the most basic checks of rational skepticism.
Shanley had had sex. He'd had sex with hustlers and teenagers and other men. And he, a priest, had lied about it. That anyone else might be lying, or confused, or seeking attention, or wanting money, or needing an explanation for the mess of a life only muddied up a good gothic tale. When the church defrocked Shanley and, against its attorneys' advice, settled the civil case, paying the accuser, Paul Busa, $500,000 and paying the troubled friend whose claims had set off the chain reaction of recovered memories, Gregory Ford, $1.4 million, it handed down one more pretrial guilty verdict. "Even if Shanley didn't rape those kids," went the common line, "he did something." Nobody knew, amid all the monster-making, that the DA had offered Shanley a deal: plead guilty and avoid prison. He refused.
When the Supreme Judicial Court hears arguments in May, it will consider the issues that, without the impedimenta of panic and prejudice, always made this a case about due process and equal treatment under the law. Shanley's new lawyer, Robert Shaw Jr., is not asking the court to divine Busa's veracity or even to determine that the hypothesis of repressed memory is, finally, true or false. That, he asserts, is the function of scientific research. To date, the research shows that the hypothesis is unproven. And so long as it is unproven, it is inadmissible in court. Shaw argues that Shanley had ineffective counsel on this and other matters, and he is seeking a new trial.
This will be the first time a Massachusetts court fully considers the scientific, evidentiary basis for repressed memory. The Commonwealth is behind the curve. Since 1998 state courts have been dismissing repressed memory as junk science, and prosecutions based on it have become rare. In 2007 an Indiana court rejected Dr. Brown's testimony as misleading, and a federal judge threw out a $1.75 million verdict in a case that hinged on Brown's expertise. In a 2006 amicus brief, dozens of pre-eminent social science researchers stated, "Decades of research and scientific debate have clarified over and over again that the notion of traumatic events being somehow 'repressed' and later accurately recovered is one of the most pernicious bits of folklore ever to infect psychology and psychiatry." Which is why Massachusetts matters beyond the fate of one man. People who may not believe in God or aliens believe in repressed memory, with no more justification and maybe less. The source of that belief is by now a tangled web, but one of its strands leads back decades to liberals and do-gooders, feminists and therapists in Massachusetts. Their ideas ruined hundreds of lives, and their acolytes, who cheered Shanley's conviction and were rewarded for abetting it, ought to be disabused of the pretension that they served something other than faith-based justice.