Over the past few years, the "false memory" movement has manifested primarily as a media presence that discounts sexual abuse survivors as first-hand witnesses to their own experiences. Its message of disbelief has compromised the healing process of many and placed more children at risk by helping perpetrators escape accountability.

The Truth and Responsibility in Mental Health Practices Act (TRMP Act) represents a new watermark in the false memory movement as its most concrete and potentially far-reaching expression to date. This article considers the implications of the TRMP Act and, in the process, analyzes the false memory position on which it is predicated. As a direct outgrowth of the false memory movement, this legislation can provide some important lessons about the movement and its goals.

IN RESPONSE TO an alleged epidemic of "dangerous" and "experimental" psychotherapies that are based on "unsubstantiated pseudoscientific myths," the newly formed National Association for Consumer Protection in Mental Health Practices (NACPMHP) drafted model legislation to end "widespread and fraudulent practices" in the mental health field. [1] In January of this year [1995], initiative supporters began a nationwide campaign to enact a revised version of their bill known as "The Truth and Responsibility in Mental Health Practices Act" [2] (TRMP Act). Thus far, the TRMP Act has been introduced under various names in New Hampshire, [3] Illinois, [4] and Missouri. [5]

With a stated purpose of consumer protection ? primarily against so-called "false memory syndrome" [6] ? the TRMP Act proposes radical changes in mental health practice, including a rigorous and unwieldy informed consent procedure warning of the "risks and hazards" of treatment, and license suspension or revocation for therapists who do not comply with the new mandates. As his moral substrate, TRMP Act author Christopher Barden, Ph.D., J.D., invokes the Nuremberg Code ? along with the implication that therapists subject the public to atrocities on a par with Nazi war crimes. [7]

A Catch-22 for Therapists

At the core of the proposed reforms is a redefinition of "science" for the field of clinical psychology. This redefinition is achieved by borrowing criteria unique to research in the physical sciences and applying them to behavioral science and clinical practice. With this change, the TRMP Act erects a Catch-22 for therapists: they would be required to provide a body of professional literature that establishes the scientific validity of their clinical practices; however, under the TRMP Act's standard of scientific validity, such literature would be largely nonexistent.

The informed consent form required by this bill must include journal citations of "treatment outcome research comparing the proposed treatment to alternative treatments and control subjects receiving no treatment." [8] The Appendix to the TRMP Act explains further:

Not only can such research be done, it is not particularly difficult. To offer a simple example, one gives Treatment X to one randomly chosen group, Treatment Y to another, Treatment Z to another and assigns the final group to a no-treatment waiting list. Reliable tests of symptoms and other goals of treatment are taken before and after treatment. What could be simpler? [9]

This research design is not simple, though, because it does not account for some basic clinical realities. For example, it assumes that diagnosis and psychotherapy are always separate processes, which is not the case. It also assumes, erroneously, that the goals of treatment are fixed at the beginning of treatment and do not change during the course of the therapeutic process. [10]

Selection of Study Subjects   Evaluation of treatment efficacy using the above criteria would require that treatment outcome reflect the treatment alone and not some factor(s) unique to the client, the therapist, or the client-therapist relationship. Thus, at the very least, subjects participating in a study of this design would have to be very similar in clinically important ways. Treatment that is relevant to sexual abuse cannot be studied in this manner because it would be virtually impossible to locate subjects who are well-matched in terms of specific trauma history, symptomatology, and many other complex variables.

Control (No Treatment) Group   In addition to matching other study subjects on clinically important variables, control subjects, by definition, would have to remain treatment-free for the duration of the study period, which could last for many years. Furthermore, this abstinance could not be imposed or encouraged by researchers because no such injunction would be ethical. Thus, the likelihood of finding volunteers who could fulfill these criteria is at least as small as the chances of enlisting suitable volunteers for treatment.

These issues alone make research fitting the above description impossible and, hence, undocumentable. Under the TRMP Act, then, therapists who treat survivors of childhood sexual abuse would almost certainly violate the bill's mandate to show that their "proposed treatment has been proven reasonably safe and effective." [11]

In many cases, the literature required to substantiate the "scientific" basis of treatment would be nonexistent, yet therapists would be denied insurance reimbursement without it. Even if clients could afford to pay out of their own pockets, therapists would still commit fraud under this bill if they begin therapy without first giving clients this same documentation of treatment validity. These provisions would effectively outlaw a substantial portion of mainstream psychotherapy?including that relevant to childhood sexual abuse.

People who might benefit from what little else remains as "legal" treatment would face a formidable and intimidating informed consent process. (The original version of the TRMP Act would have required all informed consent sessions to be audio- or videotaped. [12] Although none of the current versions of this bill contains this provision, it is not yet clear whether the early plan to include this requirement has been abandoned.) The preparation and long-term storage of informed consent records would present therapists with an additional operating expense, and the discharge of the more detailed paperwork to the insurance company would contribute to the loss of patient-therapist confidentiality.

Proposed Changes in Confidentiality: A Way Toward Third-Party Lawsuits

In addition to this broad frontal attack on psychotherapy, the TRMP Act has other provisions that would serve collateral objectives of the "false memory" movement. One of these objectives is the ability to bring third-party lawsuits against therapists.

Third-party lawsuits were clearly planned in the TRMP Act's predecessor as one of its chief goals: [13]

The Mental Health Consumer Protection Act would specifically permit lawsuits by third parties injured by negligent therapy.... All "reasonably foreseeable victims of the willful and/or reckless use of hazardous therapy techniques or procedures" (e.g., families of patients subjected to "recovered memory" therapy) shall have a cause of action for legal redress through malpractice suits. Third party suits will be screened by a three person panel composed of a citizen, lawyer and licensed therapists to insure against frivolous suits. One affirmative vote from among the three is needed to proceed to sue. [14]

The TRMP Act itself, however, is much less obvious in the way it could facilitate such lawsuits. The confidentiality clause in the bill's boilerplate informed consent form would play a key role:

Your mental health care provider has a duty to share otherwise confidential information in the following situations: 1 ? If the provider has reason to believe you are a victim or perpetrator of child abuse [author's emphasis], 2 ? the situation is life threatening, that is if the provider believes there is a serious threat of imminent, serious harm to you or others, 3 ? a court or duly authorized agent of the state has ordered your records released. [15]

The above text appears to be consistent with existing mandatory reporting laws, but it is not. Mandatory reporting laws for child abuse do not apply to adult therapy clients who report past abuse. As written, the TRMP Act would deny this one group of clients the fundamental and longstanding principle of doctor-patient confidentiality. Therapists would actually have a duty to share confidential information about any adult they suspected of having had an abusive childhood.

At present, therapists have no duty to persons with whom they have had no professional contact. The language of the TRMP Act's confidentiality clause would provide a basis for arguing that the state legislature enacting this bill recognized therapists' "duty" to their clients' families in cases that involve child abuse allegations. If this argument succeeded, incestuous parents who objected to their children talking about their abuse histories in therapy could sue therapists for damages by alleging professional negligence and claiming to have suffered as a result. "Evidence" of negligence could be found in the therapy records, which, as explained earlier, would likely reveal that therapists had not planned to use "safe and effective" treatment methods.

Accessing a client's therapy records would not only facilitate a distracting lawsuit against the therapist, but would likely result in termination of the client's therapy. An anticipated scenario would involve a father who had been privately accused of sexual abuse by his now-adult daughter. The father could request his daughter's therapy records, and her therapist would have a legally imposed duty to provide them. The loss of privacy that would accompany this access would devastate the therapeutic relationship and, consequently, the healing process. It would also open the door to disciplinary action against the therapist by his or her licensing board.

Further Proposals: Fundamental Changes in Legal Proceedings

The TRMP Act would also undermine victims' ability to sue accused perpetrators, and it would do so in ways that might not be immediately apparent.

Another provision of the TRMP Act would change a fundamental aspect of legal proceedings. Under current law, any expert asked to consult on a legal action is protected by the "litigation privilege" and cannot be sued for the opinions and testimony he or she gives. This privilege applies to all witnesses and parties in a legal proceeding. The TRMP Act would redefine mental health expert witness consultations and testimony as a "psychological service," [16] which is a term of legal significance. This change would lay the foundation to argue that mental health expert witnesses are no longer protected by the litigation privilege and may therefore be sued for their opinions. This vulnerability would greatly discourage consultation and testimony by mental health experts, which are usually needed in actions involving allegations of childhood sexual abuse.

In addition to deterring expert witness testimony, the TRMP Act would require that mental health experts and treating therapists submit published literature establishing the scientific validity of the "method or procedure" they used to arrive at their opinions. As explained earlier, it is not possible to scientifically test and validate the bulk of mainstream clinical treatment?including clinical forensic evaluations?in the manner described in the TRMP Act. Thus, this provision would effectively eliminate all clinically based expert testimony in cases of alleged sexual abuse.

Any one of the aforementioned provisions would serve as an obstacle to the identification and adjudication of sex offenders. However, an amendment to the TRMP Act in New Hampshire would go even further. If an accused sex offender were to be convicted in that state and delayed memories of abuse were part of the evidence in the case, this amendment would require the accuser's therapist to be subjected to review by his or her licensing board. [17] From a legal standpoint, this amendment would place a presumption of wrongdoing on therapists that could cause them to lose their licenses without due process. For that reason, a court would likely find this amendment unconstitutional. Its apparent intention, though, is to further discourage therapists from working with survivors of childhood sexual abuse. It is also a strong indication that the TRMP Act is not concerned with mental health services per se but with therapy that is relevant to childhood sexual abuse.

The very existence of the TRMP Act and the severity of its measures suggest that standards of care for protecting consumers are not only inadequate but completely lacking in the area of mental health. However, in New Hampshire and most other states,

The law provides for public representation on the Board of Examiners, standards for certification (education, character, supervised experience, examination), continuing education requirements, consultation with physicians when necessary, ethical standards, privileged communications with between client and therapist, prohibition of sexual misconduct, a consumer complaint process, investigation of alleged misconduct, and disciplinary proceedings. [18]

If the situation alleged by the National Association of Consumer Protection in Mental Health Practices (NACPMHP) is as grave as it claims, why has Herman Ohme, national co-chairman of the NACPMHP, instructed campaigners to "keep [the bill] as quiet as possible"? [19] Any such circumstance involving the public welfare is best studied openly, so why has he cautioned against publicity? The answers to these questions are found in a pattern that becomes clear when the origins of the TRMP Act are carefully examined.

Who is behind the TRMP Act?

The TRMP Act emerged from the efforts of organizations closely allied with the Philadelphia-based False Memory Syndrome Foundation (FMSF)?an advocacy group for people who claim to have been falsely accused of sexual child abuse as a result of "false memory syndrome" (FMS).

The distinction between the FMSF and the TRMP Act's parent organization, the NACPMHP, is somewhat blurred. Three members of the FMSF's scientific advisory board also sit on the scientific advisory board of the NACPMHP. Robert M. Koscielny, formerly of the FMSF's Legal Task Force Clearinghouse, is a state chair for the NACPMHP in Ohio, and numerous other state chairs for the NACPMHP are also contact people for state meetings of the FMSF. The NACPMHP shares the address of the Illinois FMS Society.

What is "false memory syndrome" and where does it come from?

FMSF scientific advisory board member John Kihlstrom, Ph.D., has suggested that FMS is

a condition in which a person's identity and interpersonal relationships are centered around a memory of traumatic experience which is objectively false but in which the person strongly believes. Note that the syndrome is not characterized by false memories as such. We all have memories that are inaccurate. Rather, the syndrome may be diagnosed when the memory is so deeply ingrained that it orients the individual's entire personality and lifestyle, in turn disrupting all sorts of other adaptive behavior. The analogy to personality disorder is intentional. False Memory Syndrome is especially destructive because the person assiduously avoids confrontation with any evidence that might challenge the memory. Thus it takes on a life of its own, encapsulated and resistant to correction. The person may become so focused on memory that he or she may be effectively distracted from coping with the real problems in his or her life. [20]

The problem with this definition is that it has no true clinical meaning. A "deeply ingrained" memory that "orients the individual's entire personality and lifestyle . . ." is not a diagnostic criterion but a conclusion about the veracity of contested memories that is based on unspecified criteria. More importantly, sufferers of "FMS" are virtually indistinguishable from clients with posttraumatic stress disorder (Table 1)?a condition prevalent among victims of childhood sexual abuse. Although FMS proponents may argue that therapy itself causes posttraumatic stress disorder, there is no evidence to support such a claim.

There are no tests to measure FMS, and there is no way to determine if someone has it. Because it cannot be identified, it cannot be scientifically investigated, which is why no studies or case reports of it have been published in the peer-reviewed professional literature. [21]

FMS purportedly arises from "recovered memory therapy," a theoretical practice said to be capable of creating memories of childhood sexual abuse in psychotherapy patients. The "diagnosis" of FMS was introduced in 1992 by Pamela Freyd, Ph.D. (an educator) and her husband Peter Freyd, Ph.D. (a mathematician). The Freyds conceived the idea of FMS not after years of dedicated study and research in psychology, but, rather, soon after their daughter (Jennifer Freyd, Ph.D.) privately confronted them with memories of incest perpetrated by her father. (Ironically, Jennifer is a respected research psychologist specializing in memory and perception.) In 1993, the Freyds, who are co-founders of the FMSF, filed a complaint against Jennifer's former therapist, but the Oregon State Board of Psychologist Examiners dismissed the case "in its entirety."

FMS is not recognized by experts in sexual abuse trauma. It does not appear in the American Psychiatric Association's official compendium of mental disorders and is not being considered for inclusion in that manual.

* American Psychiatric Association (1994). Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Washington, D.C.: APA, pp 424-9. Posttraumatic stress disorder may be acute (the symptoms last for less than 3 months), chronic (the symptoms last for 3 months or longer), or have a delayed onset (the symptoms appear 6 months or more after the traumatic event).

** False Memory Syndrome Foundation (1995). "Frequently Asked Questions." Sept.

Information and misinformation in the recovered memory controversy

"Recovered memory therapy" (RMT) is another scientific-sounding term that originated alongside FMS and has been given the following definition:

"Recovered memory therapy" is a term covering a wide variety of therapeutic techniques which assume that the patient's current symptoms are caused by traumatic events which have been lost to conscious recollection; these therapies further assume that restoration of conscious recollection (or at least acknowledgment that the trauma occurred) is essential to the successful treatment of the patient's symptoms. [22]

This definition also does not appear anywhere in the scientific literature and does not refer to any process recognized by the mental health professions. Again, it originates with John Kihlstrom, who goes on to say that RMT is

a kind of continuum of therapies which are concerned with the patient's memories (however they are recovered).... Outside the continuum entirely are... therapies that don't make reference to memory, or use memory, in any formal way, and which don't make assumptions about the historical causes of present symptoms. [23]

According to FMS theory, then, therapy clients have been subjected to RMT if they remember or talk about anything from their past ? an activity that is "hazardous" because it can result in "false memory syndrome." .

Appendix A of the TRMP Act explains how this bill would require therapists "who offer hypnosis as a means of 'recovering repressed memories' " to be aware of "the 1985 public warning by the AMA that such a procedure is likely to produce false memories which may be damaging to the patient." [24] However, a spokesperson for the AMA said that he recalls no such warning ever being issued. He indicated that the AMA regards the therapeutic use of hypnosis as "successful and should be practiced by trained professionals." [25]

In a 1984 report on refreshing recollection through hypnosis, the AMA reaffirmed its longstanding recognition of hypnosis as a valid therapeutic modality:

As a therapeutic technique hypnosis may be helpful in dealing with the emotional consequences of a traumatic event; that is, a recollection may have emotional validity even if it may not be historically accurate. Thus, it is not important for the therapist to concern himself with the veracity of what is remembered under hypnosis, but rather to help the patient integrate this material in an ego syntonic way to deal with the traumatic events that are presumed to have occurred. [26]

This report made a distinction between the use of hypnosis to refresh memory in psychotherapy patients and its use to refresh recall in victims and witnesses of crime who participate in police investigations. [27] With respect to the former, the AMA summarized its findings:

Hypnosis can be effective in helping some individuals provide memory reports pertaining to events about which they are amnestic. Such recollections, however, may or may not be accurate, although they may be profoundly important in the psychotherapeutic treatment of the individual. [28]

The AMA acknowledged the legal ramifications of hypnotically refreshed memory, which can vary by jurisdiction. [29]

Most therapists who work with trauma survivors understand that it is important for clients not to confront or distance themselves from important figures in their lives solely on the basis of material obtained through hypnosis.

When dealing with memories of childhood abuse, the AMA advises physicians to "address the therapeutic needs of patients" who report such memories, and that "these [therapeutic] needs exist quite apart from the truth or falsity of any claim." [30]

FMS proponents argue that some people are so suggestible that they can be influenced into believing they were sexually abused in childhood when actually they were not. This assertion, however, has little scientific basis. According to a recent review of the scientific literature on this subject sponsored by the National Institute of Mental Health:

The case for the suggestibility of real-life emotional memory to intrusions from postevent information is weak. Studies of actual victims and witnesses to crimes show no evidence of suggestibility, and diary studies rarely reveal overt errors or confabulations. [31]

FMS proponents also frequently claim that many therapy clients are looking for someone else to blame for their problems when they view their upbringing as a source of current difficulty in life. However, an exhaustive review of the literature on this subject found quite the opposite:

These data also help to rebut suggestions that depressed individuals report more adverse childhood experiences for motivational reasons, for example, because they wish to justify their current symptoms or to comply with the wishes of their therapist... or because they have internalized common ideas about links between parenting and psychopathology, which lead them to "rewrite" their autobiographies to fit in with societal expectations... . In any case, it would be inconsistent for depressed persons, who in general tend to blame internal causal factors for their misfortunes... to blame external factors such as their upbringing unless there were good reasons for them to do so. [32]

While FMS proponents claim the existence of phenomena (i.e., FMS and RMT) that are unknown to science, they correspondingly ignore the wealth of clinical and experimental data supporting traumatic amnesia. There is indisputable evidence that traumatic childhood events can be accurately recalled after a period of apparent amnesia, yet they deny this ability by asserting that there is no proof for the existence of repression ? the burying of intact memories that are too painful for conscious awareness. This assertion is based on a single literature review that lacks direct relevance to the recovered memory controversy and has been cited out of context. [33] Further, it erroneously assumes that there is but one theoretical mechanism by which traumatic amnesia can occur.

Trauma experts generally agree that dissociation -- the fragmenting of awareness into elements of behavior, emotional feeling, sensation, and knowledge [34] -- explains the broad range of clinical phenomena that are consistently observed in trauma survivors, regardless of whether the trauma is associated with combat in war, a natural disaster, sexual violation, or other types of personal assault. Terror appears to shatter the unity of awareness into pieces that are actually constantly remembered as intrusive or avoidant symptoms until the experience can be integrated into "a fully developed life narrative." [35]

Most mental health professionals who specialize in treating trauma survivors understand the complex way in which humans respond to emotionally overwhelming events, and they are skilled in recognizing what others are likely to misinterpret or not notice. For example, many of the major features of posttraumatic stress disorder (e.g., restricted range of affect, inability to recall important aspects of the trauma) are actually dissociative symptoms. [36] .

Is there really an "epidemic" of child sexual abuse accusations?

Sexual child abuse is still a highly underreported crime [37] and there are no reliable statistics on its true incidence. We do know the number of documented cases, though --152,400 in 1993 alone (these represent 15% of all substantiated cases of child maltreatment in the United States for that year). [38] Assuming that the incidence of sexual child abuse has remained fairly constant over the past 45 years, [39] we can estimate the current population of adult survivors between 25 and 45 (the age range of adults most likely to seek therapy for abuse-related problems) by regarding this figure as an annual rate of incidence and multiplying it by 20 years. Conservatively, the population numbers 3,048,000.

In contrast, the FMSF claims to have been notified of 17,000 "complaints," [40] which, even if valid, represent only 0.6% of the estimated population of adult survivors.

The FMSF has implied that the number of inquiries it has received since its inception (17,000) is the same as its dues-paying membership (3,070 as of March 15, 1995), fostering an exaggerated public perception of it's size. [41] If the FMSF's actual membership is used in the above computation, the "epidemic" of allegedly false child abuse accusations dwindles to 0.1% of the conservatively estimated population of adult survivors. Naturally, this figure assumes that each FMSF member represents a memory of abuse that is demonstrably false. .

What evidence is offered to prove that "dangerous" therapy is being practiced?

Proponents of the TRMP Act claim that thousands of "families" have been destroyed by "false memory syndrome." Many of these "families" belong to the FMSF.

The FMSF relies on two main sources of "proof" for its contention that consumers have received bad therapy: (1) simple denial of guilt by those who have been accused of sex crimes, and (2) the dramatic accounts of people who have recanted their disclosures of abuse. [42]

Denial in sex offenders is a particularly well-documented phenomenon [43] and has been studied in terms of its degree, [44] underlying motivation, [45] accompanying pathology, [46] and other variables. Researchers in Great Britain have actually been able to identify five distinct patterns of denial in sex offenders. [47] One of these patterns features "externalizers," which are offenders who are most likely to blame the victim or third parties:

Group 2, the 'externalizers', was composed predominantly of offenders against young females. They tended to blame the victim for the offence, and also blamed other, third parties such as their spouses. Interestingly, in spite of this, a large minority in the group were recidivists and many also admitted to other paraphilias. This group was most likely to harbour a sense of injustice against the way people like themselves are dealt with by the legal system, and their projective style of attribution often took on a persecutory tone when turned on the police or the courts. [48]

Offenders may be subject to other types of perceptual distortion that free them of guilt. [49] Indeed, some not only deny harming their victims but actually claim to have helped them in a way. [50] Psychologist Daniel McIvor, Ph.D., observed a group of offenders who viewed themselves as "good family men":

They experienced no guilt, lied by omission, and effortlessly utilized compartmentalization and rationalization... When they started with one lie by omission, it soon spread to hundreds of lies. But they did not feel they were "lying." They did not feel they were doing anything against the law... [51]

Persistent denial on the part of perpetrators can actually be a factor in the recanting of abuse disclosures, as some survivors capitulate when they lack adequate emotional support to cope with the reality of their traumas. Experts who treat victims of sexual abuse recognize that recantation is also a psychological defense and can be part of the gradual and uneven process of coming to terms with overwhelming trauma. [52] The American Psychiatric Association acknowledged this clinical reality in their official statement on memories of sexual abuse:

. . . hesitancy in making a report, and recanting following the report can occur in victims of documented abuse. Therefore, these seemingly contradictory findings do not exclude the possibility that the report is based on a true event. [53]

In contrast, FMS proponents accept denials and recantations at face value. Typically, they ascribe the long and troubled clinical histories of recanters to benign causes ? that is, if they acknowledge recanters' histories at all. Often, FMS proponents portray the family lives of recanters as idyllic prior to therapy and "destroyed" or "shattered" afterward, identifying mental health services rather than sexual child abuse as a threat to a "sacred American institution." .

The FMSF's efforts to substantiate member claims of "false" memory "implantation" by therapists took the form of a survey in 1993. Of 487 questionnaires sent to accused parents, 284 were returned. The results were given the following interpretation:

The accusations are based on recovered "repressed" memories. [54]

The categorical nature of these results, achieved without direct or objective evaluation of the primary subjects by trained professionals, was questioned:

I asked Dr. [Pamela] Freyd if any of the members' accusers came about their memory in any other way. She responded, "There are a few people who don't fit the demographic information." But did that mean their memories were spontaneous? "I really can't answer that," was her response. [55]

What, then, can be known about the "epidemic" from 284 self reports of individuals accused of sex crimes? Only that the FMSF has yet to provide data of scientific value.

In a recent article, psychiatrist Michael Good, M.D., made an important observation: "Apart from anecdotal material, I... have been unable to locate published analytic case reports in which a patient's plausible memory of early trauma turned out to be essentially and verifiably false." [56]

According to psychiatrist Judith Herman, M.D., of Harvard Medical School, "The very name FMS is prejudicial and misleading... we have no evidence that the reported memories are false. We only know that they are disputed." [57] .

With no scientific evidence for "false memory syndrome," FMS proponents have resorted to arguing their claims on the basis of activity in the courts. They often assert that people alleging abuse can win "recovered memory" cases on the strength of their memories alone. However, due process requires a high standard of evidence, and substantial corroboration of the recalled abuse must be presented for a lawsuit to be successful. FMS proponents typically discount or ignore this corroborating evidence or else misrepresent the facts of a case altogether.

For example, in her article, "Remembering Dangerously," [58] FMSF advisory board member Elizabeth Loftus, Ph.D., warns readers to "beware that... case 'proofs' may leave out critical information," yet her own description of Hoult v. Hoult ("The Case of Jennifer H.") fails to mention the critical testimony of several witnesses, including the defendant's admission of having sexually abused another child. Loftus implies that there was no independent corroboration of the abuse:

These experts were apparently unaware of, or unwilling to heed, Yapko's (1994) warnings about the impossibility, without independent corroboration, of distinguishing reality from invention and his urging that symptoms by themselves cannot establish the existence of past abuse. [59]

Yet the corroborative evidence in this case was overwhelming. (Significantly, the decision in favor of Jennifer Hoult was upheld by the First Circuit Appellate Court.)

Loftus writes that Jennifer "had 'experts' to say they believed [author's emphasis] her memories [of sexual abuse by her father] were real." Actually, the expert witnesses testifying on behalf of Jennifer indicated that her clinical profile was consistent with having been sexually abused in childhood, which is testimony of a very different kind. [60] Loftus fails to mention that Jennifer's therapy did not involve hypnosis, drugs, suggestions of abuse, or a diagnosis of abuse - all supposed hallmarks of "recovered memory therapy." She writes that Jennifer "paid her therapist $19,329.59 . . . to acquire [the] knowledge" [61] of her father's sexually abusive acts, yet the majority of Jennifer's therapy concerned issues other than abuse, and most of her memories of abuse spontaneously emerged outside of therapy.

Near the end of the article, Loftus writes that "Many of us would have serious reservations about the kinds of therapy activities engaged in by Jennifer" [62] ? an ambiguous statement inviting the erroneous conclusion that Jennifer's therapy involved practices similar to those Loftus describes early in her article (e.g., age regression, guided visualization, trance writing). The reader can find other examples of this kind of reporting throughout the text.

One of the most frequently cited cases by FMS proponents is Ramona v. Isabella et al. In this action, non-patient Gary Ramona brought suit against his daughter's therapists after events that transpired in the wake of her reporting memories of his sexual abuse of her as a child. The jury's decision in this complex case is often touted as a vindication of the false memory hypothesis, but it actually reflected consideration of other issues. This case was primarily concerned with the duty of care owed to Mr. Ramona as a result of his presence in the office of his daughter's therapist during a family confrontation. Importantly, Holly Ramona did not agree with her father's claim of therapist malpractice, and the case did not address Holly's memories or whether she had been abused by her father. As the jury foreman remarked after the trial:

We were rather disturbed when Mr. Ramona captured the headlines by claiming a victory of sorts, when we knew the case did not prove he did not do it. I want to make it clear that we did not believe, as Gary indicates, that these therapists had given Holly a wonder drug and implanted these memories. It was a very uneasy decision and there were a lot of unanswered questions. [63] .

Does the TRMP Act address a real crisis in mental health care?

The alleged "epidemic" of "dangerous" psychotherapy practices that are based on "unsubstantiated pseudoscientific myths" appears itself to be a myth, voiding the TRMP Act of its purported raison d'être. What, then, is the true purpose of this legislation? The answer to this question may be found in the bill's net effect.

An exhaustive medico-legal analysis of the TRMP Act in New Hampshire described this legislation as "unnecessary" and "unworkable," and concluded that it "would be the kind of radical surgery from whose very 'success' the patient would bleed to death." [64] Indeed, the destructive impact of this bill would be so profound that the American Psychological Association has issued a resolution against it:

. . . the [APA] is opposed to the enactment of legislation that, while seeming to protect the consumer, actually creates a bureaucracy and unnecessary barriers that interfere with consumer access to mental health services and fails to protect consumers. [65]

The TRMP Act is cloaked in the mantle of consumer protection, but its end result speaks to another objective. Far from protecting consumers, this legislation would sharply curtail the delivery of mental health services by severely impairing the ability of therapists to provide adequate care while mandating impediments to insurance reimbursement.

This bill would effectively eliminate the already-limited clinical resources available to survivors of childhood sexual abuse, and it would severely hamper the ability of survivors to obtain redress from their perpetrators. These "reforms" sponsored by individuals accused of sex crimes would provide an indirect means by which offenders could silence their victims and avoid accountability. Considering the fact that victims of childhood sexual abuse comprise a high proportion of psychiatric patients, [66] the homeless, [67] drug and alcohol abusers, [68] pregnant teens, [69] runaway youth, and prostitutes, [70] the TRMP Act would only complicate some of the most troubling problems in society that directly or indirectly affect us all.

[1] R. Christopher Barden (1994a). "A Proposal to Finance Preparation of Model Legislation Titled Mental Health Consumer Protection Act." August, p 2. RETURN TO TEXT

[2] R.C. Barden (1995). "Draft of Truth and Resp. in MHP Act ? State Version. January 14. RETURN TO TEXT

[3] As originally introduced, the bill was entitled, "An Act Relative to the Recovered Memory Syndrome" (HB 236). RETURN TO TEXT

[4] "Mental Health Providers Act" (HB 0966). RETURN TO TEXT

[5] "An Act Relating to Mental Health Treatment" (HB 669). RETURN TO TEXT

[6] Barden, 1994a, p 5. RETURN TO TEXT

[7] R. Christopher Barden (1994b). "Truth, Professional Responsibility and Consumer Protection in Mental Health: Legal, Scientific, Historical, Social and Legislative Aspects." 1994 Presidential Address to the National Association for Consumer Protection in Mental Health Practices. RETURN TO TEXT

[8] HB 236 (New Hampshire), p 3; HB 0966 (Illinois), p 4. Nearly identical wording appears in the Missouri version (HB 669, p 2) and the boilerplate for the state version (Barden, 1995, pp 5-6). RETURN TO TEXT

[9] Barden, 1995, p 12. RETURN TO TEXT

[10] Leifer R (1966). Psychotherapy, scientific method and ethics. American Journal of Psychotherapy 20: 295-304. RETURN TO TEXT

[11] Barden, 1995, p 5; HB 236 (New Hampshire), p 3; HB 0966 (Illinois), p 4. Nearly identical wording appears in the Missouri version (HB 669, p 2). RETURN TO TEXT

[12] Barden, 1994a, p 5. RETURN TO TEXT

[13] Ibid. RETURN TO TEXT

[14] Barden, 1994a, p 6. RETURN TO TEXT

[15] Barden, 1995, p 10. RETURN TO TEXT

[16] Ibid, p 8. RETURN TO TEXT

[17] Subdivision 330-A25: Recovered Memory Cases. HB 236, p 1. RETURN TO TEXT

[18] Saunders LS, Buraztajn HJ, Brodsky A (1995). Recovered memory and managed care: HB 236's post-Daubert "science" junket. Trial Bar News (New Hampshire) 17: 30. RETURN TO TEXT

[19] Herman Ohme (1994). "Lobbying Made Easy." July 18, p 9. RETURN TO TEXT

[20] False Memory Syndrome Foundation. "Frequently Asked Questions." September 1995. RETURN TO TEXT

[21] Professional literature has the important distinction of requiring legitimate scholarship, which is achieved through critical peer review by academicians who are prominent in their areas of expertise. RETURN TO TEXT

[22] John F. Kihlstrom. "Recovered Memory Therapy defined." Traumatic-stress@netcom.com, Wed, Jan 18, 1995 4:40 AM EDT; Message-Id: Pine.SOL.3.91.950117112532.9979B-100000@minerva. RETURN TO TEXT

[23] John F. Kihlstrom. "Belated Reply to Goodrich on Recovered Memories." Traumatic-stress@netcom.com, Wed, May 17, 1995 4:06 PM EDT; Message-Id: Pine.SOL.3.91.950517144624.24676B-100000@minerva. RETURN TO TEXT

[24] Barden, 1995, p 14. RETURN TO TEXT

[25] Interview with Judith M. Simon, September 19, 1995. RETURN TO TEXT

[26] AMA Council on Scientific Affairs (1984). Scientific status of refreshing recollection by the use of hypnosis. CSA Report K (I-84), p 321. RETURN TO TEXT

[27] Ibid, p 318. RETURN TO TEXT

[28] Ibid, p 323. RETURN TO TEXT

[29] Ibid, p 317. RETURN TO TEXT

[30] AMA Council on Scientific Affairs (1994). Memories of childhood abuse. CSA Report 5-A-94, p 4. RETURN TO TEXT

[31] Koss MP, Tromp S, Tharan M (1995). Traumatic memories: Empirical Foundations, forensic and clinical implications. Clinical Psychology: Science and Practice 2: 127. RETURN TO TEXT

[32] Brewin CR, Andrews B, Gotlib IH (1993). Psychopathology and early experience: A reappraisal of retrospective reports. Psychological Bulletin 113(1): 91. RETURN TO TEXT

[33] Gleaves DH (1996). The evidence for 'repression': An examination of Holmes (1990) and the implications for the recovered memory controversy. Journal of Child Sexual Abuse 5: 1-19. RETURN TO TEXT

[34] Braun BG (1988). The BASK model of dissociation. Dissociation 1(1): 4-23. RETURN TO TEXT

[35] Herman JL (1992). Trauma and Recovery. New York: BasicBooks, p 184.

An example of this therapeutic dynamic is described by psychologists Dori Laub and Nannette Auerhahn in their case presentation of A. When A came upon an accident scene, he felt compelled to apologize to the injured party for not saving his or her life. Difficulty concentrating, somatic complaints, and the inability to establish a stable relationship with a woman eventually prompted him to seek professional help. With treatment, A was able to remember an experience from his youth in which he discovered the body of a loved one whose death he felt he contributed to. Subsequently, his symptoms resolved and he was able to begin a relationship. (Laub D, Auerhahn NC [1993]. Knowing and not knowing massive psychic trauma: Forms of traumatic memory. International Journal of Psycho-Analysis 74: 287-302). RETURN TO TEXT

[36] Braun, p 8; van der Kolk BA (1987). Psychological Trauma. Washington, D.C.: American Psychiatric Press, p 17. RETURN TO TEXT

[37] Peters SD, Wyatt GE, Finkelhor (1986). "Prevalence." In D Finkelhor, A Sourcebook on Child Sexual Abuse. Newbury Park, CA: Sage, p 18. RETURN TO TEXT

[38] McCurdy K, Daro D (1994). Current trends in child abuse reporting and fatalities: The results of the 1993 annual fifty state survey. Chicago: National Committee for the Prevention of Child Abuse. RETURN TO TEXT

[39] A nationwide poll conducted by the Los Angeles Times 10 years ago indicated that 22% of the 2,627 adults surveyed (27% of women and 16% of men) had been sexually abused in childhood (August 25, 1985, p 1; August 26, 1985, p 1), suggesting that sexual child abuse was at least as prevalent 45 years ago as it is today. RETURN TO TEXT

[40] FMS Foundation Newsletter, March 1, 1995. RETURN TO TEXT

[41] Lawrence LR (1995). "False Memory Syndrome Foundation's Membership Exaggerated: Organization Only Has About 3,100 Members." Moving Forward Vol. 3, No. 3, pp 6-7.

The fact that the FMSF offers "family" and "professional" memberships but no "individual" memberships further obscures the perception of its size. RETURN TO TEXT

[42] Executive Director Pam Freyd claims that the FMS Foundation has been contacted by "well over 200 recanters" but doesn't keep a precise running count (interview with Judith M. Simon, July 14, 1995). RETURN TO TEXT

[43] Kennedy HG, Grubin DH (1992). Patterns of denial in sex offenders. Psychological Medicine 22: 191-6; Haywood TW, Grossman LS, Kravitz HM, Wasyliw OE (1994). Profiling psychological distortion in alleged child molesters. Psychological Reports 75: 915-27; Marshall WL, Eccles A (1991). Issues in clinical practice with sex offenders. Journal of Interpersonal Violence 6(1): 68-93; Grossman LS, Cavanaugh JL (1990). Psychopathology and denial in alleged sex offenders. The Journal of Nervous and Mental Disorders 178(12): 739-44; Marshall WL (1994). Treatment effects on denial and minimization in incarcerated sex offenders. Behavior Research and Therapy 32(5): 559-64. RETURN TO TEXT

[44] Langevin R (1988). Defensiveness in sex offenders. In R Rogers (Ed), Clinical Assessment of Malingering and Deception. New York: Guilford Press, pp 269-90. RETURN TO TEXT

[45] Rogers R, Dicky R (1990). Denial and minimization among sex offenders: A review of competing models of deception. Annals of Sex Research 4: 49-63. RETURN TO TEXT

[46] Grossman & Cavanaugh. RETURN TO TEXT

[47] Kennedy & Grubin. RETURN TO TEXT

[48] Ibid, p 195. RETURN TO TEXT

[49] McIvor DL (1993). How do non-adjudicated sex offenders think? Treating Abuse Today 3(6): 28-30. RETURN TO TEXT

[50] Ibid, pp 28-29; Kennedy & Grubin, p 195. RETURN TO TEXT

[51] McIvor, p 28. RETURN TO TEXT

[52] Summit R (1983). The child sexual abuse accommodation syndrome. Child Abuse & Neglect 7:177-93; Sorenson T, Snow B (1991). How children tell: The process of disclosure in child sex abuse. Child Welfare 70(1):3-15. RETURN TO TEXT

[53] American Psychiatric Association. Statement on memories of sexual abuse. December 12, 1993. RETURN TO TEXT

[54] False Memory Syndrome Foundation (1993). Family Survey Results. RETURN TO TEXTSummer, p 1. RETURN TO TEXT

[55] Abern A (1995). Sexual abuse: When is it real? Unpublished manuscript, on file at Treating Abuse Today, p 12. RETURN TO TEXT

[56] Good MI (1994). The reconstruction of early childhood trauma: Fantasy, reality, and verification. Journal of the American Psychoanalytic Association 42(1):81. RETURN TO TEXT

[57] Herman JL. "Adult Memories of Childhood Trauma: Current Controversies." Position paper presented at the annual meeting of the American Psychiatric Association, San Francisco, May 26, 1993. RETURN TO TEXT

[58] Skeptical Inquirer, March/April 1995, pp 20-9. RETURN TO TEXT

[59] Ibid, p 27. RETURN TO TEXT

[60] Despite defense counsel's repeated attempts to induce Renee Brant, M.D., to testify about whether she believed Jennifer, Brant adamantly and unequivocally refused to do so. RETURN TO TEXT

[61] Skeptical Inquirer, p 27. RETURN TO TEXT

[62] Ibid, p 28. RETURN TO TEXT

[63] Butler K: Clashing memories, mixed messages. Los Angeles Times Magazine, June 26, 1994, p 12. RETURN TO TEXT

[64] Saunders et al, p 37. RETURN TO TEXT

[65] American Psychological Association. Resolution on "Mental Health Consumer Protection" Acts. February 18, 1995. RETURN TO TEXT

[66] Craine LS, Henson CE, Colliver JA, MacLean DG (1988). Prevalence of a history of sexual abuse among female psychiatric patients in a state hospital system. Hospital and Community Psychiatry 39(3): 300-4; Bryer JB, Nelson BA, Miller JB, Krol PA (1987). Childhood sexual and physical abuse as factors in adult psychiatric illness. American Journal of Psychiatry 144: 1426-30; Swett C Jr, Surrey J, Cohen C (1990). Sexual and physical abuse histories and psychiatric symptoms among male psychiatric outpatients. American Journal of Psychiatry 147: 632-6. RETURN TO TEXT

[67] Goodman L, Saxe L, Harvey M (1991). Homelessness as psychological trauma ? Broadening perspectives. American Psychologist 46(11): 1219-25. RETURN TO TEXT

[68] Craine et al.; Briere J, Runtz M (1988). Post sexual abuse trauma. In GE Wyatt & G Powell (Eds.), Lasting Effects of Child Sexual Abuse. Newbury Park, CA: Sage, pp 85-99. RETURN TO TEXT

[69] Jennifer Steinhauer. "Study Cites Adult Males for Most of Teen-Age Births." New York Times, August 2, 1995, Section A, p 10. RETURN TO TEXT

[70] Wurtele SK, Miller-Perrin CL (1992). Preventing Child Sexual Abuse ? Sharing the Responsibility. Lincoln: University of Nebraska Press, pp 8-10.RETURN TO TEXT

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