Memory & Manipulation

The trials of Elizabeth Loftus, defender of the wrongly accused

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 Inquirermagazine, 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.

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