Can the mind block out memories of sex abuse and then recall them accurately decades later?
Experts on both sides will argue the controversial and emotional issue this week before a Baltimore judge in a $40 million lawsuit brought by two women who say a Roman Catholic priest abused them while they were students at Archbishop Keough High School 25 years ago.
"The irony of the situation is that those who forget can sue. Those who don't forget, cannot. It's such a strange anomaly in the law," said Dr. Pamela Freyd, executive director of the Philadelphia-based False Memory Syndrome Foundation.
The lawsuit against the Rev. A. Joseph Maskell is the first Maryland test of a legal attack that has allowed victims of alleged sexual abuse elsewhere around the country to collect long after the normal statute of limitations on damage suits has expired.
The Baltimore women, now in their 40s, assert that they buried the memories of the incidents for decades and only recalled them within the last three years.
They also say they recalled the abuse without the aid of psychotherapy, which has been widely attacked for planting false memories.
Circuit Judge Hilary D. Caplan will begin hearing testimony tomorrow from the women and psychiatrists and psychologists on both sides. He will decide whether the women's recollections meet the legal test for an exception to Maryland's three-year statute of limitations on filing civil suits. Lawyers on both sides say the issue likely will wind up before the Court of Appeals.
The exception was designed to deal with medical malpractice, whose effects on the victim may not show up until long after the statutory period has expired. It permits lawsuits within three years after the alleged malpractice has been discovered.
The women's lawyers have asked Judge Caplan to rule that their recovered memories are valid under that exception and to allow the case to proceed.
Lawyers for Father Maskell, the Archdiocese of Baltimore, the School Sisters of Notre Dame and Dr. Christian Richter, a retired Ruxton gynecologist accused of molesting one of the plaintiffs in collaboration with the priest, have asked the judge to dismiss the case.
In court papers, they argue that the women's reported memory loss does not meet the mental incompetence requirements for an exception to the statute of limitations. They also say there's no accepted scientific evidence proving the validity of recovered memories.
Beverly A. Wallace, one of the plaintiff's lawyers, said the women aren't arguing that they had repressed memories. Instead, she said, they suffered from an amnesiac "aspect of post-traumatic stress disorder."
PTSD became widely known from its diagnosis in Vietnam War veterans and is well-documented, she said.
Nonsense, said J. Michael Lehane, Father Maskell's attorney.
"There are several names for it, but the principle is the same. When repressed memory started to get some bad press, they changed the name," he said.
The issue here arose when one of the women complained to the archdiocese in 1992, saying she had recalled being sexually abused by Father Maskell while she was in high school.
When church officials said they could not corroborate her story, the woman engaged Phillip G. Dantes, a Towson lawyer. He placed a blind ad in The Sun in August 1993, asking former Keough students who had been abused to come forward. A group of women responded, including the second plaintiff.
Most of the women, including several interviewed by The Sun, said they had never forgotten the sexual abuse, but kept silent because they feared no one would believe them. Under Maryland law, they would not be allowed to sue.
Father Maskell, who was a chaplain and guidance counselor at Keough during the late 1960s and early 1970s, has denied all of the allegations. However, after hearing from several of the women, the archdiocese removed Father Maskell from his Elkridge parish and revoked his priestly duties.
The two plaintiffs will bring to court one the most controversial mental health issues of the day.
Advocates say recovered memories are valid and give those who have suffered a chance to recover damages from their one-time tormentors.
Critics say there's no valid evi- dence to prove these memories are true, and that many lives and reputations have been ruined by judges and juries who believe them.
"Repression is science fiction," declared Dr. Terry Campbell, a former chief psychologist at the Maryland Penitentiary who has practiced privately in Michigan since 1972.
Vietnam veterans suffering from post-traumatic stress disorder have not repressed their horrible memories of combat, Dr. Campbell said. On the contrary, "They are overwhelmed by almost life-sized memories."
"I don't believe there is any evidence that people can bury streams of trauma and then just dig them out," said Dr. Elizabeth Loftus, author of the recently published "Myth of Repressed Memory."
Dr. Loftus, professor of psychology and adjunct professor of law at the University of Washington, added that "Legislatures right and left are writing this into law. They have been convinced by people who wish it were true."
On the other side, Dr. David H. Gleaves, assistant professor of psychology at Texas A & M University, said, "Recovered memory does exist. People who say it doesn't are ignoring decades of literature that says it does."
The American Psychiatric Association endorses dissociative memory disorder, which includes general and selective amnesia, Dr. Gleaves said.
"We don't know why or how it happens, but we know it happens," he said.
He cited extensive literature, including a British medical study of 1,000 World War II soldiers, many of whom suffered psychogenic amnesia and recovered memories of battle only years later. Those recoveries are usually triggered by an event in the present, said Dr. Gleaves, who was formerly research director of the Renfrew Foundation, a private hospital in Philadelphia.
Dr. Martha Rogers, a forensic psychologist in private practice in Tuspin, Calif., said she is skeptical of the repressed memories, "but within limits I think there are situations where people don't remember."
A growing body of research shows that in sex abuse and other severe trauma cases, some people do have memory difficulty, although most people can recall the incidents.
Some critics argue that therapists may plant suggestions in patients under hypnosis or drugs to bring back "memories" of events that never occurred.
Mitch Bobrow, a psychotherapist in Ithaca, N.Y., supports the recovered memory theory but says, "we're dealing with a minefield."
"The false memory people say we plant memories, and sometimes I guess that's true," he said. Mr. Bobrow said some therapists "are toxic, maybe abuse victims themselves, and they have an agenda. That's where a lot of the false memory syndrome allegations come from."