ABLEnews Extra

                    Memories On Trial

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If George Franklin goes on trial again in San Mateo County for the
26-year-old murder of a little girl, his daughter's memories will go
on trial with him.
   
Five years ago Franklin was the first person convicted of a crime
through the so-called repressed memory of a witness. It was Eileen
Franklin-Lipsker, then 30 and the centerpiece of the trial, who sat
before the jury and told of how she had seen the murder and then
pushed it out of her thoughts.
   
In the years since his conviction, the professional community's
silence about recovered memories has ended and public acceptance has
changed to skepticism. Franklin's retrial would mean a courtroom
airing of an escalating dispute between those who see it as a valid
phenomenon and those who fear it as a dangerous therapeutic fad.
   
Since a federal judge overturned Franklin's conviction last week, a
new jury in a new trial might get the chance to play a part in the
continuing evolution of knowledge about memory. State and San Mateo
County prosecutors have 120 days to decide whether they will retry
Franklin.
   
In 1990, the concept of repressed memory was just beginning to be
publicly discussed. The idea that one could endure repeated abuse and
not remember it until much later contradicted the traditional Freudian
description of how the mind could fend off thoughts of unpleasant
experiences.
   
The scope of the "new" repression theory, however, was like comparing
"a firecracker to an atomic bomb," said Richard Ofshe, a social
psychologist at the University of California, Berkeley, and an
outspoken critic. "It takes the form of becoming ignorant of a major
dimension of one's life that could have gone on as long as 17 years."
   
Franklin-Lipsker's case is seen as an almost textbook example of what
Ofshe says: She claims to have recalled a terrible litany of other
offenses committed by her father over many years.
   
But supporters of the recovered memory concept banged their drums to a
"believe everything" rhythm. Absolute support for victims of abuse
should be a given, the advocates said. Their credo was, "If you think
it happened, it probably did."
   
Recalling these memories, with the help of therapy, was seen as a
solution to a long list of problems, from eating disorders to multiple
personality disorder. The movement also blended well with societal and
political trends toward greater respect for women and increased
awareness of child abuse.
   
   Hundreds of cases
   
The acceptance of these ideas put hundreds of civil and criminal cases
nto the courts, pitting those with recovered memories of abuse against
their alleged abusers, most often parents.
   
Those on the other side criticized the wholesale use of recovered
memory therapy as another example of the fads to which psychotherapy,
a "science" with a lot of latitude, has been prone. In much the same
way as lobotomies, later discredited, were once accepted in the 1950s
as a technique to control mental illness, so repressed memory won many
advocates, Ofshe said.
   
But now, although the fighting over repressed memory may continue, he
said, the war has been won. "It's no accident that the American
Medical Association has come out with a resolution condemning
repressed memory therapy and warning that belief in these memories is
dangerous without corroboration," said Ofshe, whose writings on the
Franklin case from his book, "Making Monsters: False Memories,
Psychotherapy and Sexual Hysteria," were included in Franklin's
appellate court papers.
   
Talking to experts on both sides makes it clear that any jury in a
second Franklin trial will have a difficult task. They will hear
Franklin-Lipsker's story, they will hear from someone who challenges
Franklin-Lipsker's recall and they will hear from someone like Lenore
Terr.
   
   Expert for prosecution
   
In the first trial, Terr, a San Francisco-based psychiatrist, was one
of the experts for the prosecution. A clinician and researcher, Terr
studied the psychological aftereffects of kidnapping and being buried
alive on the 26 children on a school bus who endured that experience
in the 1976 incident in Chowchilla.
   
Terr found none of those children had forgotten that trauma and
concluded that single events make a special impression. But in the
case of long-term abuse, she has written, a victim becomes
battle-weary, pushing memories into the subconscious. After her
testimony in the Franklin trial, she wrote about the case in a book
called "Unchained Memories."
   
Terr is excited about the growing body of research on the subject and
aid that research has made the picture of memory more complicated. But
the gist of her testimony in the Franklin case, if she testified
again, would be very similar, she said. "I still believe repression
does happen. It's a complicated phenomenon and a valid phenomenon in
certain instances. And every single instance has to be checked out.
You can't make a blanket statement without examination."
   
   Complications
   
The Philadelphia-based False Memory Syndrome Foundation is in part
responsible for the more complicated landscape. Founded in 1992, it
began as a place for parents accused of abuse by adult children with
recovered memories and has come to be an impetus for professional
interest. Each year, its membership has grown, and it has sponsored
bigger conferences on the topic of memory, drawing researchers from
renowned universities.
   
"People are now clear that memory is not like a videotape recorder,"
said FMS director Pamela Freyd. "It is clear that memories can be
influenced and changed, that there is misperception and decay."
   
Many studies have been done in the past four years, said Freyd, "and
for now we must operate on the best information we have...that we
don't have the evidence for repression."
   
Dr. Larry Squire, a neuroscientist at the University of California,
San Diego, is one involved in a more biological approach to memory. He
is very aware of the limitations to its study in humans. Without
independent corroboration, current science "doesn't make it possible
for us to tell in an individual case whether a person's memory is
false or true," he said. But there has been a change in how the public
thinks about the problem.
   
   Facts of brain, memory
   
"There is a recognition of some fundamental facts about the brain and
memory: It is imperfect, fragile, de-constructive and subject to
distortion and error," he said. "Our folk concept of memory is not
that concept. The scenario by which a memory is lost and then after a
long period of time comes back full-blown is highly suspect."
   
But, he adds, the pain one sees in those who recall these memories is
real. "One has to explore the suffering and understand where it came
from and not be too ready to select specific scenarios of how it
happened."
   
Franklin-Lipsker, of course, would again be essential to a conviction.
Her life has changed since her father went to prison. Her husband died
of a heart attack, she moved back to the United States from
Switzerland and will appear next week in a repressed memory segment of
the public television series, "Frontline." She is not taking calls
from the press, said Elaine Tipton, the first prosecutor in the case.
   
Her willingness to testify is essential to any further prosecution of
her father. Harry MacLean, an attorney and author about the Franklin
case, believes she will take the stand again. "She'll do it but she
will suffer greatly and make that suffering known," he said. "She'll
say she's doing it for her children and for all the children of the
world."
   
"But it's a different game now," MacLean said. "The cultural context
has changed completely. There's a cynicism and a skepticism in the
general public about repressed memory that wasn't there then. You're
not going to get the wholesale swallowing. My guess is she probably
knows that."
   
Ironically, the issue of repressed memory did not win Franklin a new
trial. In overturning the conviction, US District Court Judge Lowell
Jensen ruled: "Trials are based on memories of the past...This case,
then, may be described as a `recovered' memory case, but in reality it
is a `memory' case like all others...The focus must be on the
credibility, the believability, the truth of the asserted memory."

[Memory May Go on Trial Again: Times Have Changed Since Man's
Conviction on Daughter's Recall, S.L. Wykes, San Jose Mercury News,
April 10, 1995]

ABLEnew's Editor's Note: For a detailed critical view of "recovered
                         memory therapy," see FMS50130.* wherever
                         ABLETEXT files are found.

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