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New York Magazine Describes False Memory as “A Defense for Sex Offenders”

An bad-faith headline from New York Magazine:

The Memory War Jennifer Freyd accused her father of sexual abuse. Her parents’ attempt to discredit her created a defense for countless sex offenders.

Peter Freyd was accused by his daughter after she apparently remembered childhood sex abuse as an adult during a therapeutic encounter. Peter and his wife Pamela Freyd then famously created the False Memory Syndrome Foundation to advocate for memory research, focusing on the phenomenon of supposed “recovered memory”. Advocates for the veracity of recovered memories have celebrated the closure of the FMSF, as I discussed a year ago here in relation to the International Society for the Study of Trauma and Dissociation.

Since the 1970s, memory research has given us a fuller and more nuanced understanding of the uncertainties of human memory, and some of this knowledge has relevance to legal proceedings. Of course, evidence that memory is malleable may be useful for guilty defendants looking to explain away victim or witness testimony (a point so banal it is barely worth stating), but it can be vital in preventing miscarriages of justice. Although focusing mostly on the Freyds, the article, by Katie Heaney, also discusses the work of Elizabeth Loftus:

Perhaps no one alive has been harder on memory’s reputation than Loftus. In 1974, the Department of Transportation awarded Loftus — then a newly minted Ph.D. in psychology — a grant to study memory distortion among eyewitnesses of car accidents. That same year, she used her findings to assist a public defender in a murder trial; the defendant got off, and Loftus has had no shortage of work as an expert witness ever since.

“Got off” obviously implies that a guilty defendant got away with it, but here’s the actual context of the case, as described by Loftus herself in 1975:

Last year I worked with the Seattle Public Defender’s office on a case involving a young woman who had killed her boy friend. The prosecutor called it first-degree murder, but her lawyer claimed she had acted in self-defense. What was clear was that during an argument, the defendant ran to the bedroom, grabbed a gun, and shot her boy friend six times. At the trial, a dispute arose about the time that had elapsed between the grabbing of the gun and the first shot. The defendant and her sister said two seconds, while another witness said five minutes. The exact amount of elapsed time made all the difference in the world to the defense, which insisted the killing had occurred suddenly, in fear, and without a moment’s hesitation. In the end the jury must have believed the defendant; it acquitted her. [1]

It’s not clear from this whether Loftus’s testimony was decisive, and that last sentence is slightly infelicitous in that it overstates the jury’s need for belief – perhaps the defendant was compelling, and perhaps there was other evidence in her favour, but if the case hinged on the “five minute” witness then all that was needed was that the jury should be unsure. The anecdote is a coda at the end of an article that discusses various instances of mistaken identity and misremembered details.

Heaney goes on to discuss the limitations of the famous “Lost in the Mall” false memory experiment that Loftus devised with the neuroscientist Jimmy Coan, who at that time was an undergraduate:

Coan, Loftus’s former student and now a neuroscientist and psychology professor at the University of Virginia, has decidedly mixed feelings about the experiment he inadvertently spearheaded. “I’m slow enough on the uptake that it took me a while to realize that the study I was doing was making people who had been sexually abused feel like I was their enemy,” he tells me. “That was completely devastating to me.” Although he has been asked to testify about false memory in countless court cases, Coan has always refused. He just doesn’t think the mall study is sufficiently relevant. In her excitement, he thinks, Loftus may have “mischaracterized” what started out as an undergraduate assignment for extra credit.

“I got five points,” Coan says. “Five points and decades of grief.”

Coan has responded to this characterisation on Facebook, in two comments:

[deep exhale]… OK. Time to clarify a couple of things about this article, and its accompanying podcast episode. First, Katie Heaney (its author) appears to have done some creative editing of our phone conversation to make it appear that I’m saying that Elizabeth Loftus’s work is unconvincing and misunderstood, when what I’m ACTUALLY talking about is my five point extra credit assignment in Beth’s class nearly 30 years ago. And things like being misquoted in the service of a shoehorned agenda is what I was referring to when I made my “decades of grief” quip. And the reason I don’t testify about all of this when asked to is that I’m not qualified to do so, not that I think the research is bad or irrelevant. [frustrated face here]

I’ve contacted Heaney seeking an explanation. Would love to get the complete recording of our conversation released.

More thoroughgoing critiques of the article have been published by Carrie Poppy on Medium, and by Julian Greaves of the Grey Faction, mentioned in passing by Heaney as the FMSF’s “online, cult-obsessed sons”. As discussed by Poppy:

Heaney also waves her hand at Grey Faction, an activist group that exposes psychological pseudoscience, because they (in her mind) are obsessive teens who are still enthralled by the Satanic Panic caused by repressed memory theory in the ’80s and ’90s. Never mind that that history is intrinsically tied to Qanon, “deep state” conspiracy theories, and the other madness the U.S. is still grappling with today.

Much of Poppy’s critique takes the form of a letter to the editor that was never published. She has also posted letters to the magazine from Loftus, from the Center for Inquiry, from Greaves and his Grey Faction associate Evan Anderson, and from Pamela Freyd herself. A response from the editor, Ted Hart, is also included, although for some reason he didn’t want it made public.

Pamela Freyd’s response includes some forensic observations about Heaney’s rhetoric:

Peter is described as “prideful” rather than “stoic.” A defendant “got off” rather than “was found innocent.” Peter and Pam were “intimate” rather than “were married.” Multiple items associated with Pam and Peter are referred to as “elite,” “wealthy” or “affluent. Victims of therapeutic suggestion are “gullible” [according to the FMSF] rather than “vulnerable.”

I discussed an earlier attack on the concept of false memory here.

Footnote

1. Elizabeth F. Loftus, 1975. “Reconstructing Memory: The Incredible Eyewitness”, Jurimetrics Journal 15 (3): 188-193, p. 193. Available here.