Nedan återges ett kapitel ur Max Scharnbergs bok om en rättegång, en bok som även innehåller grundläggande information om rättsutvecklingen. Boken i sin helhet kan läsas på http://www.yakida.se/max/maxbok.pdf

Max Scharnberg

Textual Analysis of a RecoveredMemory Trial, Assisted by Computer Search for Keywords, Sidorna 20 - 22


Chapter 2

The Background of All Recovered Memory Cases

Since the Second World War, North-Western Europe has shown a marked inclination to imitate many trends that a short period before, for better or worse, were common in the United States. Sometimes this would not occur until after its “prototype” had already been abandoned and deemed to be completely mistaken in America.

One of these trends consisted of a set of heterogeneous but entangled aspects, which in one way or another are related to sexual abuse. The American origin of this trend is no longer disputed. “Like the old days of a communist under every bush, now there was a child abuser under every bush”, said Elizabeth Loftus (1991:131). One aspect was the enlargement of the concept itself. Actions that had for generations been considered normal or even desirable were suddenly re-labelled as criminal. Two telling examples are provided by Wakefield & Underwager (1988). A mother called the social services to ask for advice. She breast-fed her 2½-year-old son; was this appropriate or should she stop? Half an hour later the social services fetched the child: breast-feeding at that age was considered sexual abuse. – A sun oil salesman demonstrated his product by smearing the shoulders of a nine-year-old girl in front of her parents. For this “crime” he got a prison sentence of two years.

A second aspect was the enormous change of the kinds and power of evidence permitted in the courts, and deemed sufficient for a conviction. The famous case of the McMartin pre-school in California is instructive in this respect We shall return to this case in chapter 21. Most information here is taken from Eberle & Eberle (1993).

The proceedings in the district court were handled by judge William Pounders of the Supreme Court. No child accused any teacher of anything, until the child had been in psychotherapy by Kee MacFarlane or her co-workers. (MacFarlane was not at all a psychotherapist.) But after this therapy they accused 358 persons of the most absurd crimes.

The prosecutors realised that a trial with 358 defendants could only result in 358 acquittals. Therefore they selected two persons to be charged: a woman who owned a part of the preschool, and her son who was a teacher there. All the other 356 persons disappeared in silence.

One might try to imagine a situation in which 358 persons were suspected of having killed one child each, and the public opinion felt no indignation when 356 suspects were not charged, at the same time as the same general public felt the most pervasive fury when those two who were prosecuted, were acquitted. It could be argued that such an odd pattern would not have emerged if people really believed in the accusations.

Note the following facts about how Pounders handled the case.

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Judge Pounders forbade the defence to tell the jury that the children had accused 356 other persons, and that the evidence against all 358 persons was equally strong. In his mind this knowledge would expose the jury to “undue influence”.

Judge Pounders permitted the prosecution to call a large number of children who testified that they had been abused precisely at the McMartin Preschool and precisely by the two defendants, despite the fact that the children were not even born until after this preschool had been closed and the two defendants had been arrested. In Pounders’ view this misinformation would not expose the jury to “undue influence”.

Judge Pounders likewise permitted a category of perjury that is generally accepted in the American legal system. Another person who had committed many serious crimes (e.g., a number of bank robberies) was offered to receive only one year for all the crimes, if he committed perjury. He was placed in the same cell as one of the McMartin teachers. Afterwards he testified in court and under oath that the teacher had told him that he was really guilty of sexual abuse. According to Pounders neither this perjury would expose the jury to “undue influence”.

In Scandinavia as well as in many other European countries we can witness analogous phenomena: a palpable reduction of the power of evidence used and permitted in court, and deemed sufficient for a conviction. Other imitated American phenomena include an increased severity of the punishment meted out, and an increase of the time limit for prosecution.

Furthermore, a new variety of psychotherapy was invented in the USA and imitated in Europe, viz. Recovered Memory Therapy (RMT). It is important to note that this approach was altogether traditional in some respects and completely new in others.

For the past hundred years, most varieties of psychodynamic therapies (or of talking therapies) have been based on Sigmund Freud’s psychoanalysis to a greater or lesser extent. The essence of psychoanalysis has always consisted of the of two procedures: persuasive techniques aimed at making the patient believe in the interpretations delivered by the therapist; and enraging techniques aimed at producing violent outbursts of impotent rage (the word “impotent” is crucial and its importance cannot be exaggerated). Despite this character, Freud and his direct and indirect followers have persistently and dogmatically asserted that they have been very careful not to influence the patient. And on the basis of the latter but false assertion they have concluded that the causes of the patient’s reactions derive from the patient’s inner mind and are independent of the therapist’s behaviour. This was said to be true both of the patient’s eventual belief in the interpretations, and of his outbursts.

From the very beginning psychoanalysts declared that their treatment consisted in making unconscious phenomena conscious by lifting repressions. In 1896 Freud explicitly claimed that what he had made conscious were recollections of events experienced during the patient’s early preschool years. And – as more recent psychoanalysts have revealed – half a century later the ego-analysts habitually explained every kind of psychic ailments as the effect of one particular

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kind of event: around the age of one the patient had woken up and had seen his parents engaged in sexual intercourse.

Turning now to the difference between psychoanalysis and recovered memory therapy (RMT), the psychoanalysts were content if the patient had “understood” and given “verbal assent” to the double interpretation that he had experienced such events, and that they were the true causes of his present ailments. Three generations of psychoanalytic literature make it blatantly clear that no psychoanalyst requested that the patient should recall the events. By contrast, the central innovation of recovered memory therapy is the request for recalling certain events constructed by the therapist. (Admittedly, some recent psychoanalysts have combined psychoanalysis with RMT, and they will request real “memories”.)

The events “disclosed” by the new therapists were usually criminal: sexual abuse by a parent, or ritual murder of children (with or without concomitant cannibalism). Consequently, RMT would often lead to legal action or civil suits against the alleged perpetrator. In the USA some therapists would not charge the patient with a consultation fee proportionate to the number of therapeutic session. Instead they would receive a percentage of the damages allocated to the patient by the court.





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