Memory & Manipulation

The trials of Elizabeth Loftus, defender of the wrongly accused

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."

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