The Trials of Elizabeth Loftus, Defender of the Wrongly Accused
By Sasha Abramsky
Orange County Weekly
September 9, 2004
http://www.ocweekly.com/features/features/memory-manipulation/19618/
On the wall of Professor Elizabeth Loftus' third-floor UC Irvine office is a paper bull's-eye target, pockmarked with bullet holes. If it looks somewhat incongruous in the mostly sedate academic surroundings—bookshelves lined with psychology texts, a large desk with a black Dell computer and stylish flat screen, a mock Vanity Fair cover with Loftus' face staring out from atop Demi Moore's body (a humorous gift from students), and photocopies of Andy Warhol's Mick Jagger portraits—there's good reason. Loftus—who, when she pulls her blue straw hat over her mussed shoulder-length brown hair and stands up in black-velvet pants and cotton blouse, looks startlingly like Diane Keaton in Annie Hall—took up target practice in 1994 after receiving death threats following the publication of her book The Myth of Repressed Memory. "We're going to kill the bitch" was one choice missive. The holes in the paper, Loftus says, laughing nervously as she recalls the events, were made on the firing range.
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Photo by Slobodan Dimitrov |
Target practice aside, Loftus' work veers into an X-Files-type reality where nothing is as it seems, where even the inner sanctum of an individual's most personal memories is subject to manipulations and falsification. We think of that sanctum as a citadel invulnerable to outside pressures. Loftus tells us that, to the contrary, it is a marshland crisscrossed with paths, instantly imprinted by the footprints of all those who traverse it.
Beth Loftus grew up in a house on Santa Monica Boulevard. And while she has spent much of her adult life away from the place of her birth, she has always been drawn back to the city where things are not always what they seem, where humans—the storytelling species—have perfected the art of illusion. The allure is appropriate given that Loftus specializes in studying the malleability of, the fallibility of, human memory and given that she has spent a lifetime exploring the strange nether regions of the mind where fact and fantasy, reality and distortion, blend into new versions of "the truth."
Recently, three decades into her influential career as a research psychologist and memory expert in legal cases, Loftus, in her early 50s and recently divorced, returned to Southern California after several years at the University of Washington in Seattle. Now ensconced at UCI's department of psychology and social behavior, as well as its criminology department, she lives in a modest faculty house. A framed panoramic oil painting of the early-20th-century wooden house overlooking Lake Washington in which she lived until 2002 hangs on her hallway wall, copied from a photograph by a man she believes to be wrongfully imprisoned and whose cause she has championed.
Somewhat ironically, her return was a side effect of research work investigating the veracity behind the allegations at the heart of a high-profile Jane Doe child-abuse case. She eventually co-authored an article about the case with University of Michigan psychologist Mel Guyer—from which stemmed a lawsuit against the authors, the university, the journal in which the article appeared and the organization that publishes the journal—but first Jane Doe filed an ethics complaint against Loftus with the University of Washington. Though the university eventually cleared Loftus of breaking research protocols—after seizing all of her files on the case and preventing her from publishing her work for almost two years—its support was so lukewarm and its unwillingness to stand by its controversial psychologist during the current lawsuit so clear that Loftus was only too happy to accept an offer from UCI.
For the past many months, Loftus, who herself has served as an expert witness in more than 250 cases since 1975, has been preparing to go to trial. It is a battle for personal survival as much as for her professional reputation—never mind that she was recently elected to the prestigious National Academy of Sciences as well as listed by the Review of General Psychology as one of the 20th century's Top 100 psychologists. "I'm so proud of what I've done," Loftus states defiantly. "I'll fight to the bitter end." Over the past year, the lawsuit has been wending its way toward the trial stage. If she loses, not only will academic freedom have arguably suffered a grievous blow, but also on a personal level, Loftus herself could face bankruptcy.
In early 2003, Loftus gave a lecture in Hollywood, at the Center for Inquiry West, a venue run by the Committee for the Scientific Investigation of Claims for the Paranormal (CSICOP) that specializes in casting skeptical eyes over discussions about paranormal, and otherwise scientifically dubious, or unprovable, happenings: UFO sightings, alien abductions, crop circles, that sort of thing. "Preconceived ideas and the accuracy of memory are factors that always seem to come into play, at least with these anecdotal beliefs we investigate," explains Jim Underdown, the center's executive director, hinting at the strange interplay of cultural beliefs and sensory input that goes into molding complex memories. "The fact that memories are so plastic and changeable, if a memory can be introduced, then that becomes a serious issue and a serious aspect of an investigation. Even if somebody is telling the truth, it may be they're telling the truth about a false memory—about something that didn't happen."
Loftus told her audience about a case she had recently investigated, a famous Jane Doe case, in which a messy divorce and child-custody battle had ended with the biological mother being accused by her six-year-old daughter of having sexually abused her earlier in her life. Following the accusations, custody was awarded to the girl's father and his new wife. Over the years, the young girl lost all memory of the "abuse"; then, nearly 11 years later, the doctor who had interviewed her after the initial abuse claims re-interviewed her. At that point, the 17-year-old suddenly recalled detailed abuse episodes. Touted by repressed-memory specialists as one of the most celebrated cases in the literature, Jane Doe's story—which had been written about with her consent by the specialist who conducted the interviews—had long struck Loftus as resting on extremely shaky foundations. Was it possible, she wondered, that the six-year-old child had been coached by her father and his wife to issue the initial allegations, that she had quickly "forgotten" the abuse because it hadn't in fact occurred, and that years later she had "recalled" false events at the prompting of the specialists who interviewed her?
Loftus and a colleague from the University of Michigan began interviewing all the key players in the events—including the biological mother and the stepmother, whom Loftus came to believe had helped the child to recall the abuse episodes. Eventually, they concluded the abuse had never occurred and that the memories, which over the years and decades had come to represent a defining event in Jane Doe's life, were, while powerful, in fact entirely false.
In the summer of 2002, Loftus and her colleague published an article on their findings in Skeptical Inquirer magazine, a journal run by CSICOP. It was provocatively titled Who Abused Jane Doe? The Hazards of the Single Case History. Now, in early 2003, she was speaking before an audience at the Center, reiterating some of these oil-thrown-on-fire conclusions.
Not long afterward, in May of that year, Loftus and her colleague (as well as her editor and friend) psychologist Carol Tavris, the Center and the magazine were named as co-defendants in a civil lawsuit — Taus v. Loftus—filed by Jane Doe at the Solano County Superior Court in Northern California. Doe, by then a lieutenant in the U.S. Navy, was suing them for violations of her privacy—even though, until the lawsuit was filed, her identity (Nicole Taus) had been kept entirely out of the public domain. "Dr. Loftus and/or her co-author apparently spent quite a bit of time talking to people, including my client's biological mother," Taus' attorney, Julian Hubbard, of the Redwood City law firm of McCloskey, Hubbard, Ebert and Moore, explains. "Talking about her and soliciting information about her private life—obtaining her medical records and obtaining information about her when she was growing up that has nothing to do with what she [Loftus] was writing about." Hubbard claims that Loftus went beyond the bounds of academic research by "befriending" Jane Doe's mother to the point where she would provide a willing audience for poetry the mother had written, by coaching her to believe she had not abused her daughter decades earlier, and by attempting to forge a reconciliation between mother and child.
Not surprisingly, Loftus' side sees things somewhat differently. They argue that Doe's privacy was always protected until she, herself, nullified it by going to court and seeking financial damages against the defendants. The lawsuit, says Loftus' attorney, Tom Burke, "revealed who she [Jane Doe] was, where she went to high school, where she grew up. What's really frustrating here is not only did she apparently consent to the original publication of her case history when she was young, but also later on in life, when she was interviewed 10 years later by Dr. [David] Corwin [the psychologist who popularized her story], she consented again." Then, after Loftus' article was published, Corwin received Jane Doe's consent one more time to use her case history in arguing against Loftus' ideas on the dangers of believing in recovered memories.
In other words, Loftus' team believes that Jane Doe, who did not respond to requests (issued through her attorney) to comment for this article, was fine with her story being used as long as those using it uncritically accepted the reality of her memories.
Yet increasingly, memory experts such as Loftus have been proving that not only is memory unreliable, but it can also be so utterly manipulated as to render it next to useless as pivotal evidence in criminal cases. If Taus wins her lawsuit, says attorney Burke, frustrated in an attempt several months back to have the case summarily dismissed, "it would set a very dangerous precedent. If you have someone who's simply trying to contribute to an understanding of the data, if those views are silenced, you can't do what needs to be done."
It's no secret that in recent years, numerous men and women have been released from prison after new DNA evidence cleared them of crimes for which they were convicted entirely on the basis of eyewitness testimony. In New York, Barry Scheck's Innocence Project has created a cottage industry out of using new technologies to expose such miscarriages of justice. But despite high-profile cases such as the release from Illinois' death row of several prisoners after journalism students at Northwestern University investigated their stories and proved their innocence, we like to think of these cases as unfortunate aberrations blemishing a system that, in the main, works to protect the innocent. Loftus challenges this reassuring assumption.
In an era where social panics—around sexual abuse, drug use and, more recently, terrorism in particular—have led all too many Americans to abandon the assumptions of innocence that theoretically underlie our criminal-justice system, Beth Loftus is a voice of caution. Like Henry Fonda in Twelve Angry Men, she is a holdout against our willingness to equate an accusation with guilt and our tendency to damn people on hearsay rather than genuine, verifiable evidence. Fighting the memory wars, for Loftus, has gone beyond the confines of the academy; it has become a battle for the credibility of America's justice system.
In essence, Loftus says that our memories can lie and that when coaxed in one direction by people we trust (family members, therapists, police officers asking us to identify perps from a series of mug shots), all too often we can "remember" events that did not happen and see people at the scene of a crime who in fact were not actually there. While these false memories can be about almost anything, in the past couple of decades, they have had an impact on the criminal-justice scene, most notably around the theme of "recovered" memories of instances of sexual abuse alleged to have occurred years or decades previously. Lacking any physical evidence, these cases hinge solely on the word of the alleged victim, their legal viability reliant entirely on the willingness of prosecutors, judge and jury to accept the allegations at face value. Yet so traumatizing are these "memories," these images of shattered and violated childhoods that swim up to the surface years later, often while the "victim" is undergoing counseling with an unlicensed therapist, that few are willing to challenge their validity and to further devastate already desperately depressed individuals—and as a result, too often men and women have been prosecuted solely on the basis of such "memories" or, if not prosecuted, have had their reputations and family relationships destroyed.
What drives Loftus is not, as her detractors believe, a perverted desire to keep sexual predators free to wreak havoc on young innocents, but rather a passionate belief that during social hysterias, the presumption of innocence becomes subsumed under a tidal wave of lock-'em-all-up-and-throw-away-the-key rhetoric. And that during such hysterias, finger pointing by those who really have been victimized is enough to convict the innocent and guilty alike, while at the same time, finger pointing by those who have never been victimized is also enough to doom the accused. Suffused with a sense of history, Loftus is haunted by the ghosts of the Salem witch trials from more than three centuries ago. Combine sloppy police work, the pressure to identify and convict high-profile criminals at any cost, and intense pressure put on suspects during interrogations to own up to—to remember—committing certain acts, and, Loftus argues, all the ingredients are present for grievous miscarriages of justice.
"I was getting pretty upset about this," she says. "I'd see people convicted I believed were innocent, and it would keep me awake at night. There is a problem with faulty memory—it's the major cause of wrongful convictions in this country. We're living in a world where there's a temptation to believe every accusation of abuse, no matter how dubious it may be, and sexual abuse seems to have a privileged status, which makes it all the more special. Obviously there's real child sex abuse, and there are adults who were abused as children—as I was," Loftus says softly and way too matter-of-factly. For a woman who has been accused for years of defending pedophiles and other dangerous predators, it's a pretty large bombshell to just drop into the conversation. But after hesitating a while, she begins to explain. It turns out that Loftus herself recalls being sexually molested by a family acquaintance when she was a young girl. "I was maybe six. I always remembered it. The first person I told was my former husband, when I was in my 20s. It was definitely sort of embarrassing. I remember him [the acquaintance] scratching my arm and telling me certain things—like where babies came from. The one worst thing I remember is when he pulled his pants down and laid me on top of him—and I squirmed my way off him."
The difference between the abuse she remembers suffering and the "repressed memories" of so many other alleged victims, Loftus argues, is that she never "repressed" her experience; it never lay dormant and utterly outside of her consciousness from the moment it allegedly occurred until, years later, it was coaxed out into the open again by a therapist trying to find the source of a patient's adult discomforts. Instead, throughout her childhood, the memories kept resurfacing, sometimes in bizarre ways. When she turned 13, for example, and her period didn't arrive, somehow she decided that maybe her abuser's actions all those years ago had put her into a state of permanent pregnancy.
"I'm pretty aware of the fact there are some creepy people out there—from my own experience," Loftus explains. "But all the people who get harmed by the uncritical acceptance of every accusation—there's a whole bunch of people who get hurt, including the real victims, who get trivialized. You can't be raped for 10 years and not remember it. Yet according to the repression aficionados, anything's possible."
Just ask Pamela Freyd of the Philadelphia-based False Memory Syndrome Foundation. FMSF, on whose scientific and professional advisory board Loftus sits, was founded in 1992 to provide advice to those accused in repressed-memory cases. "We've been contacted by 22,000 families," says Freyd, a retired teacher whose own family was rent apart by an abuse allegation from her 33-year-old daughter in 1991. "There was a growing problem for some families who had adult children who had suddenly and inexplicably accused them of abuse—abuse they had had no awareness of till, as adults, they entered therapy. These were families with good relationships. Therapists used hypnosis, sodium amenthol, guided imagery, dream interpretation, relaxation exercises. These are very dangerous techniques to use if undertaken in the expectation you can excavate historically accurate memories."
Wisconsin attorney Bill Smoler, who represents several accused families in repressed-memory cases, recalls one instance in which a young woman entered therapy and "began a journey into believing she was raped by her father, grandfather, uncle, brother, two cousins and three members of the clergy—and had repressed all of these memories." Ultimately, it emerged that the woman had severe multiple-personality disorder, and after she died, Smoler sued her therapist on behalf of her parents for malpractice as well as for damages because of the hurt done to the family. In 2000, a jury awarded the deceased woman's estate and her family more than $5 million.
Back in Southern California, a 79-year-old onetime marriage, family and child counselor, who asked that her name not be used, explained how in the late 1980s, her then-41-year-old daughter entered therapy and began recalling images that started with a memory of her mother inserting scissors into her vagina and gradually built up to a point at which she decided her parents were Satanists who had killed and eaten babies in her presence. Nobody was ever charged in the case, but the family in question was, naturally, completely devastated.
Others were not so lucky. In her books on repressed-memory cases, Loftus details the experiences of many individuals who were charged with sexually abusing their children solely on the basis of recovered-memory testimony. Many of these men and women spent months in jail awaiting trial; others ultimately were sentenced to years in prison—all without a shred of physical evidence ever being presented.
Over the years, Loftus' work has generated many followers. But others have responded with the kind of venom rarely seen within the confines of academia. Her friend Carol Tavris—who herself tasted a little of the fury after she published a famous New York Times Book Review article in 1993 titled "Beware the Incest-Survivor Machine"—jokes that they have both been caricatured as "evil pedophile psychologists from hell." Their critics range from rival memory experts, such as Jane Doe's champion, David Corwin, to an array of therapists, victims of child abuse, and those who, for whatever reason, feel betrayed by those around them and hold Loftus and Tavris personally responsible for their ills. A quick Google search reveals hostile Internet correspondence, angry radio-show transcripts and high-octane commentary against Loftus from around the world. And then, of course, there are the aforementioned death threats.
"Once I started being skeptical of those repressed-memory accusers and the therapists who helped them get this way," Loftus says, her voice tinged with an emotion somewhere between resignation and bewilderment, "the hate mail began flowing in."
Yet Loftus' work goes well beyond the veracity of sex-abuse claims. While she made a name for herself as a memory expert defending those she believed to be wrongly accused, her work increasingly highlights the rough edges of memory in a host of different situations. Take a high-profile case in which the guilt or innocence of a defendant revolves almost entirely around eyewitness testimony or memories recalled by defendants during police interrogation, and the chances are pretty good that Beth Loftus' name will show up somewhere in the proceedings. These cases include the celebrated McMartin and Dale Akiki kiddie-abuse cases from the 1980s, in which allegations of day-care providers systematically abusing their young charges led to a national panic about youngsters being ritualistically abused by those hired to care for them, and the Holly Ramona case, which spawned a generation of repressed-memory allegations. (Ramona was a student at UCI who went into therapy and "recovered" very vivid but ultimately false memories of being repeatedly raped by her father while she was a young girl. Eventually, in 1994, in a case written up by Moira Johnston in her book Spectral Evidence, the father successfully sued the therapist for malpractice for implanting the false memories in his daughter's mind.) Loftus has even testified in the Ted Bundy trial, as well as in the Hillside Strangler, O.J. Simpson and Rodney King cases in LA—she argued that the video of the police beating King didn't capture the entirety of the event, yet likely shaped the firsthand memories of those called to give testimony in the trial. More recently, Loftus has served as a behind-the-scenes consultant in some of the church-abuse sagas around the country, trying to work out which allegations have merit and which are coattails claims.
Look carefully and Loftus also appears as a consultant for the defense in the federal trial of Texas Tech professor Thomas Butler, a bioterrorism and bubonic-plague expert. He was accused of illegally importing vials of plague from Africa, contacting the FBI after several dozen vials went missing, and then, after three days of interrogation, admitting that, while he had no memory of the events, he might have accidentally destroyed the vials himself. Loftus argued that even an absent-minded and aging professor would remember if he had destroyed such an integral part of his own work. In the end, the jurors agreed and acquitted the 62-year-old Butler on the most serious charges.
In a simple conference room in one of UCI's 1960s-era tower blocs, Loftus and her students, who are for some reason overwhelmingly female, devise experiments to show just how manipulable memories can be. While they don't seek to replicate alien-abduction experiences or to insert images of sexual abuse into the minds of those never abused—even if they were unethical enough to want to attempt such experiments, they would never in a million years receive permission from the university to do so—they do seek to create an array of other memories of events that never occurred.
In an extra-credit homework assignment, for example, Loftus' students went home and said to younger siblings things as simple as "Hey, do you remember the time you got lost in the mall when you were five years old?" and then recorded the ways in which the "memory" would take on a life of its own in the succeeding days, becoming more vivid, more detailed, with each conversation. At a more advanced level, using research subjects in a lab, students successfully created memories of mildly traumatic childhood experiences—such as being temporarily separated from one's parents—that never actually occurred. One student even managed to generate a series of false memories in her research subjects about being licked on the ear by a Pluto character while visiting Disneyland decades earlier. In another experiment, to make sure they were dealing with false recollections rather than real ones, research assistants created memories about meeting Bugs Bunny at Disneyland, who in reality couldn't possibly have been in the theme park. The purpose of these mind games is to show that even the most vivid memory is not necessarily an accurate representation of past reality.
Not long ago, actor Alan Alda visited Loftus' lab while researching a television documentary on memory. Before he visited the lab, Loftus' team had Alda fill in a questionnaire about his eating history since childhood. Over the course of the morning Alda was in the lab, Loftus and her students then implanted a false memory in his head, subtly convincing him that a computer analysis of his questionnaire had determined that he had gotten sick from eating bad hard-boiled eggs when he was a young boy. Later, when they took the actor out for a picnic—a photograph of the event is tacked up on Loftus' office cork board—they monitored his food choices and, sure enough, he avoided the hard-boiled eggs they offered him.
Loftus' Irvine colleague Michael Rugg, an expert in the physiology of memory, believes that physiologically the same brain regions are activated when someone answers "yes" to something that is true as when someone answers "yes" to something that he believes to be true but that is actually false. In other words, physiologically, the truth is less important than an individual's perception of the truth. Ultimately, perhaps, it is this blending of interior and exterior realities that creates uniquely human forms of memory—that renders our minds forever different from those of the binary strings at the center of computer hard drives, that makes our vision of the world, our interaction with the world over time, so different from that of machines designed to manifest artificial intelligence.
Among the more bizarre examples of the tricks memory can play is the rash of vivid alien-abduction stories that has intrigued scientists and ufologists for several decades. While some experts accept at face value stories of men and women being removed from their beds in the middle of the night, taken aboard spaceships, being experimented upon and even made to have sexual intercourse with alien beings, most memory specialists have a somewhat different explanation. Harvard experimental-psychopathology professor Richard McNally, for example, has run two studies on alien abductees. He found that most reported a form of sleep paralysis known in the profession as hypnopompic episodes—essentially a state, experienced by up to 30 percent of the population at some point in their lives, when the body is physically asleep, part of the mind is still dreaming, but another part of the mind is conscious of being awake—and that most, while certainly not psychotic, did have a strong tendency toward beliefs outside of the mainstream. "They're not lying," McNally says of their experiences. "They're really sincere. They are, however, characterized by a range of New Age beliefs, by magical ideation—they tend to believe in past lives, crystals, reincarnation, alternative medicines. Second, they're high on absorption—they can become entranced by a sunset, absorbed in a novel, they had imaginary playmates as children."
Like many of the people in the sexual-abuse cases, most of the alien abductees McNally interviewed did not actually remember, at the time of awakening from their hypnopompic episode, that they had been abducted. What they did feel was intense discomfort; many then sought the help of therapists or counselors—under whose tutelage they began to "remember" that they had been abducted and experimented upon while in this strange state. In a different cultural context, the same individuals would likely have recalled being visited by witches, ghosts or Satan. "Under the suggestive questioning of clinicians," McNally states, "these individuals' minds are generating very powerful explanatory frameworks—under the guise of memory—for their sleep paralysis. They're very resistant to reinterpretation." Soon, such "memories" become an integral part of the individual's self-identity—"I am an alien-abductee survivor"—and physiologically, the alien abductees, when asked to relive their experiences, respond in much the same way (sweaty palms, racing heartbeat, facial muscle tensions) as do traumatized war veterans.
Those who cling to "recovered" memories of long-ago childhood sexual abuse—many of whom, says Loftus, also have a tendency to vibrant visual imagination, are somewhat suggestible in the presence of more extroverted personalities (such as therapists) and tend to have problems concentrating—are likewise invested in the reality of their claims. In both instances, says McNally, psychological problems lead to therapy, which leads to hypnotic regression, which leads to "false memories that explain the original problem." Maybe that's why Jane Doe reacted so furiously when Loftus and a colleague challenged the veracity of her story. It wasn't just that strangers were snooping around her past; those same strangers were actually, in effect, telling the world that the adult Jane Doe might not have as valid an excuse for perceived adult neuroses and problems as she believed she had.
Maybe that's also why many therapists have also reacted so furiously to Loftus' work. One female therapist sat down next to her on an airplane a few years back and, when in the course of casual conversation she found out whom she was sitting next to, got so angry that she hit Loftus over the head with a rolled-up newspaper, saying over and over again, "You're that woman."
Loftus, says Tavris, "makes people question, even if they don't know they're questioning, the explanation they've lived with for so long. She's telling doctors they're killing women because they're not washing their hands. The venom in the clinical world to Beth is in direct relation to how defensive she makes them feel. Beth is questioning some of the basic principles on which people are earning their livelihoods. People don't like that."
Now Loftus is getting ready to defend herself in court. Like many of the cases in which she has testified over the decades, Taus v. Loftus has the potential to once again remake the ground rules in the memory wars. Win or lose, however, Loftus has already succeeded in highlighting the legal system's overreliance on uncorroborated eyewitness testimony. "I think I've really helped people to understand the malleable nature of memory," Loftus says. "When I help save one innocent person, I feel really good about it."
Recently, Loftus tells me, she got a call from "Jane Doe's mother. She said, 'I'm calling because I had a stroke. I'm getting out of the hospital, and I just wanted to say to you that I'll never forget what you did for me.'"
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