6.05.2011

Opening The Doors To The Past: Decade Delayed Disclosure Of Memories Of Years Gone By



(Trial Day 8, June 1, 2011)
By Lawrence W. Daly and Dr. Frank Pacifico

Twenty years ago, my colleague, Dr. Frank Pacifico and I wrote the below article, which was published by the National Association of Criminal Defense Lawyers. This featured article explains the process of Decade Delayed Disclosures (DDD) in reference to child sexual abuse issues. This author has been following the Casey Anthony case since its inception and believes this article may answer some questions which have been raised about Casey’s credibility in her attorney’s (Jose Baez) statements that she was sexually assaulted as a child (possibly beginning when Casey was 8 years old) at least a decade ago or earlier than that by her father, George, and older brother, Lee Anthony. The DDD should be taken seriously as it may explain Casey’s behavior and why she did not disclose the child sexual abuse until the defense’s opening statement.


Decade Delayed Disclosures

Decade delayed disclosure (DDD) is a new and rapidly growing phenomenon in the field of child sexual abuse. We have seen the term "delayed disclosure" in the literature, and now accept as common knowledge the fact that the disclosures of young children are frequently delayed for a variety of reasons, including memories being repressed, interference of other defense mechanisms, lack of social support for disclosure, or fear of retribution or harm. Yet, it is only fairly recently that we have begun to recognize that adults, too, make delayed disclosures of their abuse as children.
In some cases the disclosures are very delayed; the abuse may be as old as a decade or more: we have coined the term decade delayed disclosure (DDD) to refer to sexual abuse disclosures by adults wherein the alleged crimes was perpetrated over 10 years prior to when allegations are made. Since there has been an acknowledged problem with false or fictitious disclosures of abuse by children, it is only logical to expect the same in the reporting of sexual abuse by adults that is delayed by a decade or more. This reporting falsity can be either intentional or unintentional.

Historical Trends

Society can expect to witness the full emergence of decade delayed disclosures as a social phenomenon. The veritable evolution of child abuse recognition and reporting continues. In the early 1960s, Henry Kempe was among the first to speak about "The Battered Child Syndrome." Later, Ann Burgess chronicled the much needed 1970’s movement wherein rape victims became increasingly vocal and received support for speaking out. Time passes. Finally, in the early 1980s Ronald Summit wrote an article about adults who had delayed disclosures about their sexual abuse as young children.   
Now, as we move into the 1990’s both children and adults continue to speak out about being victims of sexual abuse. Laws have been passed so we can step back in time and make the abuse perpetrators accountable for their actions. There has been an exponential increase in lawsuits filed against alleged perpetrators based upon delayed disclosures by adults who claim to have been abused as young children. Mental health professionals and lawyers alike must be aware: the doors to the past are now open.
New avenues have been created for victims to find satisfaction, retribution and answers. We wholeheartedly support the seeking of justice and personal healing. We wish to emphasize, however, that along with increases in the reporting of factual early abuse incidents there are also some fictitious or distorted allegations as well. There are complaints by those with obvious intent of secondary gain. This casts a shadow of doubt on the validity of some claimants' alleged memories and intentions. With the opening of the doors to the past, a host of complex legal and psychological concerns are just beginning to emerge.

Decade Delayed Disclosures

In a study by Briere and Runtz 44.1 percent of the 152 adults surveyed had a history of being sexually abused when they were children. Professionals in the field of child abuse have seen delays of over ten years before an individual makes a disclosure. Many victims fail to immediately report that they are a victim of some type of sexual assault. It is important to understand that the primary problem with decade delayed disclosures is that memories can be either repressed or unrepressed. Dr. Elizabeth Loftus documented that recall of unrepressed memories is tenuous at best. Obviously, we are on even less certain ground when we talk about the reliability of recall of repressed memories. Both repressed and unrepressed memories have a profound legal significance for the supposed victim and the alleged perpetrator.

Effects Of Delayed Untreated Child Abuse

There have been several studies that have attributed early child abuse trauma to later adult problems. Briere and Runtz report some of the "trauma effects" as:

Insomnia, restless sleep, nightmares, loneliness, decreased sex drive, lethargy, sadness, spacing out, anxiety attacks, uncontrollable crying, trouble controlling temper, dizziness, fainting, desire to hurt self, desire to hurt others, sexual problems, fear of men, fear of women, frequent hand washing, de-realization, out of body experiences, chronic muscle tension, current use or abuse of psychoactive medication, history of psychiatric hospitalization, history of suicide attempts, re-victimization as an adult, history of rape, drug and alcohol addiction.

While bonafide abuse victims experience many of the above symptoms and, as a result, need kind, considerate, and expert care, the above list is so general that many psychological disorders can manifest with the same or similar symptoms. This sets the stage for possible misinterpretation and over-diagnosing. On the legal side, it is important to understand that the victim must prove that the defendant is liable for all injuries resulting from the tortious behavior.

An actual cause, or cause in fact, exists when the act of the defendant is a necessary antecedent of the consequences for which recovery is sought...[In addition] a certain degree of proximity [must] exist between the act done or omitted and the harm sustained before legal liability may be predicated upon the "cause" in question. It is only when this necessary degree of proximity is present that the cause in fact becomes a legal or proximate cause.

Most therapists involved in counseling alleged victims are quite unaware of the legal requirements in these cases. The causal relationship between the tortious act and the specific harm sustained by the victim must be established.

Early Memories

Therapists who specialize in treating individuals with some type of Post Traumatic Stress Disorder (per DSM-IIIR) have been suggesting that some of their clients' problems may stem from sexual abuse as children. The memories of such events are generally enhanced through use of hypnosis, discussion of life experiences, group meetings with other alleged incest/abuse victims, etc. Therapies seek out early memories; often the patient reports no recollection of abuse, but in the course of therapy he/she is encouraged to find a repressed, hidden memory which may be the root of current distress. This process is potentially helpful but is also potentially unscientific and trouble-laden, especially if suggestions, expectations, or pressures lead to memory embellishment, inaccuracies, or even fabrications.



An Illicit Approach

Often a counselor has everything to gain and nothing to lose. If a counselor identifies a client's alleged abuse-related disorder, he/she has just diagnosed the problem and treatment may consist of one to three years of intensive therapy, usually with the same therapist. The cost of therapy ranges into the thousands of dollars for treatment periods lasting for years. Such financial incentives may affect counselor perceptions or encourage overzealous consultation.
A counselor may suggest that the alleged perpetrator, who may be falsely accused, should be held accountable. There are three specific ways: (1) through filing a civil action; (2) through coercion by telling the alleged perpetrator if he/she doesn’t admit to the alleged wrongdoing and pay for treatment the counselor and/or the victim will expose the abuse; and, (3) by notifying the authorities with the hope that this will bring about a criminal action or intimidate the alleged perpetrator into a confession or compliance with the demands. One might ask the question: “How many of the alleged perpetrators who don’t have any money are ultimately sued or charged with anything?”
Obviously not all cases follow the above scary scenario. In many cases, there is an actual abuse incident and a known perpetrator. Perhaps only a small percentage of cases involve erroneous or fictitious reports. Nevertheless, it is important for the therapeutic community to recognize the dangers—including the economic and personal incentives for over-diagnosing, misdiagnosing, and false reporting. Therapists must be especially on-guard to the differences between unrepressed and repress memories and the subtle nuances that affect reliability of such memories.

A Proper Investigative Approach

We wish to underscore the fact that there is a difference between alleging a recent act of child abuse versus alleging sex abuse of years gone by. The latter, by necessity requires new investigative techniques not yet perfected. Since there are very few protocols of how to investigate child abuse allegations in general, the even more specialized area of DDDs definitely needs a tremendous amount of careful study and research. Some of the investigative steps that we have found useful in decade delayed adult allegations of child abuse are listed as follows:

1.      Identify and interview the individuals who would have been in the alleged victim’s and perpetrator’s environment at the time of the alleged abuse.
2.      Identify any behavioral problems that are generally associated with abuse as a child.
3.      Identify and obtain any and all medical records of the alleged victim.
4.      Identify and contact the authorities at prior schools attended by the alleged victim as a child, for records and potential leads.
5.      Identify behavior of the alleged perpetrator that would generally support or not support pedophilic behavior.
6.      Interview other female/male children, now adults, who would have had contact with the alleged perpetrator during the alleged time frame to determine if they had any inappropriate contact with the alleged perpetrator.
7.      Identify the alleged perpetrator and any non-abusers who may have lived in the house with the alleged victim; interview all relevant parties.
8.      Identify police records for any criminal activity by the alleged perpetrator.
9.      Identify any drug or alcohol use by the alleged victim and/or perpetrator.
10.  Identify mental health records for the alleged victim from child to adulthood.
11.  Identify and interview individuals the alleged victim may have had intimate relationships with from adolescence to adulthood. Interview them with reference to abnormal behavior and sexual problems.
12.  Identify the “Origin of the Disclosure” to determine if there is reliability to the alleged acts. It is critical to determine the exact origin of the disclosure and all of the events surrounding it.
13.  Identify and interview the counselor to determine if “decade delayed disclosure” is something that he/she seems to advocate or specialize in, or whether she/he has a strong bias toward DDD.
14.  Identify the counselor’s memory enhancement and stimulation techniques.
15.  Identify if the counselor used video or audio-taped sessions, and if notes were taken (and still exist).
16.  Identify if there have been other counselors who have previously discussed child sexual abuse with the alleged victim and what the alleged victim disclosed to each of them.
17.  Identify what secondary gains the alleged victim may have acquired from making the disclosure.
18.  Identify the alleged victim’s circle of friends and determine if any of them are in treatment/counseling for being an alleged or actual victim of sex abuse.
19.  Identify if there have been any problems or discord recently or in the past with the family member who is being accused and note if this plays a part in the allegations.
20.  Identify the alleged victim’s work history and determine if he/she has alleged any sexually inappropriate actions against a co-worker or a prior employer.
21. Identify any recent relevant television shows, books, educational workshops, seminars and other resources to which the alleged victim may have been recently exposed to.
22.  Identify the entire alleged victim’s and suspects past employers and determine if they provide insurance. Subpoena insurance records to identify mental health providers. This may lead to other mental health providers. This may lead to other mental health issues or information regarding related or unrelated prior abuse disclosures.


                            

Evidence And Collateral Witnesses

Investigators should not assume that the evidence of a crime no longer exists. The victim may have a diary, a keepsake, memorabilia, photographs, or some type of document. Although this is unlikely, the investigation into the circumstances and facts of the allegation must be conducted thoroughly.
The investigator must be aware that collateral witnesses, who may have had information to support the alleged victim or perpetrator, may suffer from the same memory erosion problems that all humans suffer. As Loftus and Loftus note:

The contents of an interview may not reflect a person's personal experiences and attitudes so much as his or her current picture of the past. It may not be possible, in some circumstances) to ever discover from interviewing someone what actually happened in the person's past. Not only might the originally acquired memory have departed from reality in some systematic way, but the memory may have been continually subject to change after it was initially stored.

Recent Legislation

In looking at recent legislation, you have to wonder how legislatures determined "how far back the door can be opened." That is, in determining the statute of limitations and when to include/ exclude memory traces, upon what data base are state legislatures relying? A look at the State of Washington's sexual abuse statute provides an example of how the statute can be used:

RCW 4.16.340 holds a perpetrator of sexual abuse of a minor liable until three years after the victim discovers or reasonably should have discovered his/her injuries. RCW 4.16.340 makes it abundantly clear that our legislature does not intend for a perpetrator of childhood sexual abuse to easily avoid responsibility. In a recent case, the plaintiff had shown that she had met the requirements of RCW 4.16.340. She filed her lawsuit within three years of discovery of the sexual abuse. The defendant could have been tried as an adult, under RCW 9A.44 and 9.68A, and therefore plaintiff had met the criteria for section (5) of RCW 4.16.340.

Many other states have passed similar laws and it is our belief that it will not be long before all of the states have addressed the sexual abuse civil statue in some form.

Protocols

For years the authors have been advocating that professionals in the child abuse field must record child interviews on audio or videotape. Since there are no established national protocols on how to interview victims, it is hoped the mental health profession will ultimately adopt a standard (such as audio or videotaping) which would bring greater credibility and validity to abuse allegations. Possible benefits include:
• The accuracy of an interview cannot be validated without the use of the video or audiotape. A professional cannot focus on conducting an interview and the recording of accurate verbatim notes at the same time. Even a second professional in the interview room is not capable of taking 100 percent accurate notes.
• The videotape may be used to compare the statements of witnesses and professionals when there are discrepancies with the statements of the adult victim.
• The goal of conducting any interview is to minimize the trauma to the interviewee and to maximize the recall. Recording accomplishes this goal.
• A videotape offers the opportunity to observe the gestures and facial expressions accompanying the victim's statements that could support the victim's account.
• Tapes may expose interview techniques that employ leading or suggestive questions.
• Recording may be used as a therapeutic tool.
• The videotape is an important form of ongoing training for professionals.
• A videotape may add to the therapist credibility.

We understand that many in the mental health profession believe that recording is intrusive and not necessary. While there may be some intrusive effect in a small number of cases, the benefits far outweigh the disadvantages. Our concern is that the credibility and reliability of victims' statements are often questioned because the mental health professionals have failed to come to an agreement on how interviews should be conducted.
Since the method of attack will be to question the origin of the memory and cues for retrieval, placing safeguards has never been so important. Jude Hunt states that research conducted by Professor Loftus shows that "memories are constantly undergoing alteration/distortion and contamination from new sources of information." Hunt also quotes child victim expert Lucy Berliner who has stated,

I don't think all eyewitness accounts should be discredited as a result. Many of the cases in our criminal justice system depend on eyewitness accounts. If an environment has created those accounts, then what do we do?

Hunt goes on to state that Berliner worries in particular about the cases she is most involved with as a professional counselor: sexual assault of children and adults. Berliner asserts: "These are the kind of crimes that are most likely to depend on eyewitness testimony...If Loftus's view is accepted-that we can’t rely on what people say-then it's going to harm women and children who report such cases."
We concur with Berliner and do not suggest that all eyewitness accounts need to be discredited. Instead the point is to strengthen the eyewitness accounts by having documented interviews as supporting evidence. In order to do this, protocols need to be established for interviews to follow. If improvements are not made, we will continue to see a large number of unprosecuted perpetrators and we will also be disturbed by the increasing phenomenon of false allegations in the adult DDD area. The warning signs are present and should be taken seriously.

Research

There is a paucity of research in this area. At the present time we are aware of a few studies that are being conducted to identify antecedent memories and how subject's feel about repressed versus unrepressed memories.
Also, we are concerned that research needs to be conducted on both repressed and unrepressed memories. When will a distinction be made between disclosures based upon repressed versus unrepressed memories?

Summary

Although it is recognized that development of memory research paradigms is of extreme importance, this article is not about the brain and the inner workings or functions of it. It is about recognizing that the next trend in the mental health profession is what we have termed Decade Delayed Disclosures. The triple D will become a major legal concern as well. It is obvious from the lack of research in this field that mental health empiricists and legal experts alike must begin the long process of developing and identifying methods and techniques for dealing with issues inherent in the triple D phenomenon.
We continue to advocate a national protocol be established as to how to investigate, interview and document abuse allegations in and alleged decade delayed disclosures in particular. The benefits of recording on audio or video tapes surely outweigh the arguments of those who oppose preserving testimonial evidence. Perhaps a certain amount of trauma, pain and suffering can and will be eliminated.

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