Amicus Letter by the Leadership Council
June 15, 2005
Honorable Ronald M. George, Chief Justice and
Associate Justices of the California Supreme Court
350 McAllister Street
San Francisco , CA 94102-4797
Re: Nicole Taus vs. Elizabeth Loftus et al., 1st Civ. No. A104689
Dear Chief Justice George and Associate Justices:
The Leadership Council on Child Abuse & Interpersonal Violence (hereafter "the Leadership Council"), a nonprofit independent scientific organization composed of respected scientists, clinicians, educators, and legal scholars (see attached list of board members), was founded in 1998 by professionals concerned with the ethical application of psychological science to human welfare. Our president, Dr. Paul Fink, is a past president of the American Psychiatric Association. He is also the former president of the American College of Psychiatrists, the National Association for Psychiatric Healthcare Systems, the Philadelphia County Medical Society, and the American Association of Chairmen of Departments of Psychiatry. The Leadership Council supports peer-reviewed research, hosts conferences, and has submitted amicus briefs in important state and federal cases. We are familiar with the scientific and ethical issues involved in the Taus vs. Loftus et al. case. As social scientists and lawyers who work with vulnerable populations, we have an interest in its outcome. We respectfully request that you accept our letter in support of the Plaintiff in the current matter before this Court.
Interest Of The Leadership Council
The primary goal of the Leadership Council is to advance the science of trauma and to promote the ethical application of this science to human welfare. The foundation of public support for science, or for any public endeavor, is trust -- in this case trust that scientists and research institutions are engaged in the dispassionate search for truth. We believe that as professionals all researchers share the collective responsibility for upholding the highest ethical principles in the conduct of scientific research.
The Defendants have argued that the Jane Doe study is of such significance that extraordinary measures were justified to attempt to refute it. These extraordinary measures appear to include misrepresentation, defamation, and invasion of privacy. The Defendants appear to argue that not allowing psychologists to violate the ethical guidelines of their profession or to circumvent the restrictions imposed by scientific review boards, will stifle research necessary to advance the field of memory and trauma. In short, the Defendants are claiming a personal immunity from tort laws and ethical standards. We vigorously disagree with these stunning assertions for a variety of reasons.
Scientific Issues are Not Central to the Legal Rights of the Plaintiff
Although a scientific discussion about memory provides the backdrop for the events giving rise to this case, scientific issues are irrelevant to the resolution of this litigation. It is the conduct of the Defendants that has been challenged by the Plaintiff, not their beliefs about the science of memory. Here, the Plaintiff alleges that the Defendants undertook a course of conduct designed to circumvent the protections afforded to subjects of legitimate scientific research for the Defendants' own gain. Consequently, this case involves simple torts; namely, the right of privacy, which is enshrined in the California Constitution, misrepresentation, and the law of defamation. This Court is not being asked to resolve, or even inquire into, the scientific controversies surrounding traumatic memories. Instead, this Court is being asked to evaluate whether the law of torts and the codes of ethics should be suspended in the name of an alleged scientific pursuit. Such a precedent would promote lawlessness, bias, and intrusion on individual privacy by investigators who feel passionately about his or her area of study.
Unethical Conduct is Contrary to Good Science and Does Not Serve the Public Interest.
Using the advancement of science as a justification for ignoring accepted scientific procedures and ethical guidelines is both unsupportable and cynical. Unethical conduct is the antithesis of good scientific practice and does not serve the interests of scientists. In fact, it was scientists who created the American Psychological Association's Ethics Code and a scientific organization that adopted it. The American Psychological Association's Ethics Code (2002) is based on considerable research about what activities are harmful to individuals and should therefore be excluded as unethical. American Psychological Association, The Ethical Principles of Psychologists and Code of Conduct (2003). Moreover, the code embodies the field's consensus  and helps insure good science by helping researchers avoid conflicts of interests and biased methodologies. Id . Thus the ethical code serves to advance the cause of science as it helps protect the integrity of the scientific process and helps insure the trustworthiness of scientific findings.
In the current case, the Plaintiff alleges that Defendant Loftus obtained private health information by misrepresenting herself as someone who was supervising Dr. Corwin, a researcher who her family knew and trusted. When her misconduct was challenged, Loftus allegedly argued that what she was really doing was journalism instead of science, and thus the ethical guidelines of her profession do not apply to her conduct. This behavior, if true, provides an important example of why ethical codes are so important. The purpose of professional ethical codes and Institutional Review Boards (IRBs) is to make sure that investigators do not cross the line of established professional norms and risk harm to their patients or research subjects. Federal regulation of research followed revelations of abuses, including those of the Nazi doctors who performed inhumane experiments during World War II, and those of the doctors who studied syphilis by not treating black service men in the Tuskegee experiments. In these instances, and many others like them, the defense claimed, as in the present case, that ethical rules and civil laws should be suspended for them so that their pursuit of knowledge would not be stifled.
Ethical guidelines also safeguard the integrity of scientific inquiry. For instance, engaging in multiple roles (dual relationships) can impair both scientific and clinical objectivity. The Leadership Council is astonished that several professionals have filed amicus letters with the court claiming that because of their ideological views, they are entitled to ignore the formal ethics codes, laws, and standards that otherwise apply to all other researchers. That they are willing to trumpet their right to act illegally and unethically because they have a higher cause demonstrates how important it is for this Court to preserve the fundamental human rights that are supported by constitutional rights, ethical norms, and tort laws.
Furthermore, the argument that it would be impossible to conduct necessary research if Defendants are required to meet the recognized formal requirements necessary to obtain informed consent from research subjects and necessary to respect the rights to privacy and confidentiality is completely fallacious. See Kenneth S. Pope & Melba J. T. Vasquez, Ethics in Psychotherapy and Counseling: A Practical Guide, 2nd Edition (1998). In every field of human inquiry in which some self-appointed science saviors have attempted to justify unethical behavior by asserting "It is impossible to study this field effectively unless one violates the ethics codes," more creative and rigorous research designs have been developed. Conscientious researchers are able to gather relevant scientific data without disobeying ethical standards.
If Defendants Loftus and Guyer had doubts about the case presentation of David Corwin, there are a wide variety of scientific methodologies they could have pursued. The normal scientific procedure would have been to recruit their own research subjects and try and duplicate the results. Replication is the cornerstone of the scientific process and is how dubious findings are usually tested. Alternatively, if they felt compelled to reinvestigate the specific case of Jane Doe, they could have asked Dr. Corwin if they could review his data. If they wanted to do follow-up research on the subject, the Defendants could have asked Corwin to contact the subject (Jane Doe) to see if she would be willing to be subjected to further study. All of these methods are established psychological procedures in clinical research that promote scientific progress when scientific questions arise about the scientific validity of a finding.
Researchers Are Not Free to Exclude or Exempt Themselves from Regulatory Oversight.
Researchers who are affiliated with state and federal institutions gain credibility through this affiliation and in exchange must follow state and federal guidelines. Universities, research organizations and the investigators who work for them are required to follow a set of regulations known as "the Common Rule" (technically, "Federal Policy for the Protection of Human Subjects," DHHS' 45 CFR 46 or the equivalent regulations for other federal agencies) when they receive federal support. The federal government requires investigators at universities receiving federal funds to comply with all IRB requirements, institutional policies, federal regulations, and state laws. National Institutes of Health Office for Protection from Research Risks (OPRR), Protecting Human Research Subjects, Institutional Review Board Guidebook (1993).
Plaintiff Taus alleges that Defendant Loftus failed to comply with these normal procedures and safeguards while at the same time using her reputation and standing as a psychologist and faculty member at the University of Washington to collect data on Ms. Taus' personal life and mental health. When Taus complained, Loftus apparently claimed that she was not really acting in her official capacity as a psychological scientist and thus should be considered exempt from customary regulatory and ethical oversight. It runs counter to the public interest to allow a professional to on one hand exploit their position and credentials to gather data that would otherwise be unavailable to them, and then claim they were acting as a private citizen in order to avoid the relevant professional and regulatory oversight on the other.
The usual process of gaining approval for a research study involves submission of a protocol to an IRB to assess the scientific merits of the proposed study and its impacts on human subjects. IRBs protect the rights and welfare of human research subjects and are responsible for ensuring that all approved research complies with the letter and spirit of the human subject research regulations and local law, as well as the ethical principles laid out in The Belmont Report. See Department of Health, Education, and Welfare, Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (1979). A specific protocol may then be approved by the IRB, with a defined specific informed consent process as part of the study, usually memorialized by a signed consent form in which a subject indicates his/her acceptance of the possible risks of the study, as enumerated in the protocol and the informed consent document. Deception is almost never allowed as part of human subjects protocols. According to American Psychological Association's Ethical Principle 8.07, psychologists do not deceive prospective participants about research that is reasonably expected to cause physical pain or severe emotional distress. If deception can be justified, psychologists must explain any deception that is an integral feature of the design and conduct of an experiment to participants as early as is feasible, preferably at the conclusion of their participation, but no later than at the conclusion of the data collection, and permit participants to withdraw their data. Apparently none of these procedures were followed in the current case.
The Legal Rights of Research Subjects Cannot be Waived by Researchers
Ms. Taus claims that she was studied and information gathered about her health and private life without her knowledge or consent. If true, such conduct cannot be condoned. Consent is the most basic and important portion of any research protocol and privacy is among the most basic and important of human rights. Private Citizens have a right to be informed of any research that is being conducted on them and to be advised of any harm that may befall them if they agree to participate. To protect subjects, all potential risks are to be carefully explained before any data collection takes place, and the subject must indicate his or her acceptance of any potential risks in the form of a signed consent form. Nor is informed consent a one time event; instead, it is generally recognized as an ongoing process . Office for the Protection of Research Subjects, University of California, Los Angeles. Investigator's Manual for the Protection of Human Subjects (1997); The Johns Hopkins Bloomberg School of Public Health Committees on Human Research, Informed Consent: A Guide (2002) ("Since human beings retain the right to withdraw from a study, consent must be considered an ongoing process."). Throughout a study, participants must be told about any changes in the study and be allowed to withdraw from the study at any time for any reason, or even for no reason.
The research subject's legal rights are not waived by signing a consent form; nor can they be waived. Federal regulations are quite clear on this point.
"No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject's legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence."
Department of Health and Human Services. Regulations for the Protection of Human Subjects (45 CFR 46), Section 46.116: General Requirements for Informed Consent.
Providing No Recourse to Victims of Unethical and Fraudulent Behavior by Researchers Will Have a Chilling Effect on The Willingness of Public Citizens to Participate in Scientific Research.
An ethical approach that guarantees anonymity and provides safeguards for the welfare of human subjects serves the public interest and is essential to maintaining public support for the pursuit of scientific knowledge. Conversely, when researchers fail to adhere to ethical and scientific guidelines, the public's trust in all forms of scientific research is eroded. Confidentiality is particularly important in fields of study where subjects are selected because of sensitive or stigmatizing characteristics (e.g., persons who were sexually abused as children, sought treatments in a drug abuse program, or tested positive for HIV, etc.). To recruit subjects, researchers must be able to give them honest assurances of confidentiality and advise them of any potential risks or harm that could come from their participation. The current case before the Court raises important issues about this process. For example, what kind of assurances of confidentiality can be provided if participation in research opens any subject up to surreptitious study by unaffiliated researchers? If the Defendants' position is accepted, where does the suspension of laws and ethics stop? Is any enterprising researcher permitted to hire a private detective to obtain otherwise secret or confidential data? Is misrepresentation to be considered part of the legitimate arsenal of scientific inquiry?
The Defendants' alleged tactics, and the alleged justification from which they flow, would pose a potential risk for every research subject and impact every research study in California . Should informed consent forms be rewritten to say "nothing you say or do can be kept private or confidential"? Without the assurance of confidentiality and respect for their private lives, how many people will be willing to participate in scientific studies â€" particularly on sensitive and highly personal subjects?
The Case of Jane Doe Is Not a Critical Case at the Epicenter of a Scientific Debate.
The Defendants claim that the case study of Jane Doe is at the epicenter of a scientific debate on "repressed memory" and thus is of such import that the rules of scientific conduct and California laws should be set aside for sake of science. In truth, Corwin's case study is but one of any number of research studies showing that trauma may in some instances lead to memory blockage and loss. For example, as of 1999, Brown, Scheflin, & Whitfield, Recovered Memories: The Current Weight of the Evidence in Science and in the Courts, 27 J. Psychiatry & L. 5-156 (1999), reported on 68 studies supporting dissociative amnesia. There are now almost 90 such studies. Moreover, in 1994, prior to the publication of Corwin's case report, the American Medical Association had already noted the existence of studies showing that there are cases where "recovered memories proved to be correct." American Medical Association, Council on Scientific Affairs, Memories of Childhood Abuse (1994). Actually, the only thing remarkable about Dr. Corwin's case report was the level of detail that he had collected in the form of videotapes. This level of detail is important to advancing our theoretical understanding of how dissociative amnesia may work, but alone was not so important as to constitute a major advance in the field.
In their arguments, the Defendants make much of the controversy over "repressed memory." However, the only real controversy about memory blockage is not whether it occurs (we know it does), but rather the exact cognitive mechanism causing the blockage and by what name this mechanism should be called. Currently most scientists label the process whereby the mind avoids conscious acknowledgment of traumatic experiences as dissociative amnesia . Others use terms such as repression , traumatic amnesia, psychogenic shock, or motivated forgetting . Semantics aside, this phenomenon has been repeatedly documented in the aftermath of combat, natural disasters, and rape and other forms of violence. In addition, there is near-universal scientific acceptance of the fact that the mind is capable of avoiding conscious recall of traumatic experiences and may gain access to memories of these experiences at a later time. So while the mechanism of exactly how memory blockage occurs remains unknown, the phenomenon of dissociative amnesia is well established. See , H. Sivers, J. Schooler, J. & Freyd, Recovered memories. In V. S. Ramachandran (Ed.) Encyclopedia of the Human Brain, Volume 4, 169-184 (2002); David H. Gleaves, et al., False and Recovered Memories in the Laboratory and Clinic: A Review of Experimental and Clinical Evidence, 11 Clinical Psychology: Science and Practice, 3-28 (2004).
The most comprehensive review of the scientific literature on dissociative amnesia was conducted by Brown, Scheflin and Hammond in their book, M emory, Trauma Treatment, and the Law (1998). This book by Dr. Brown and Professor Scheflin set the standard in the field after receiving the American Psychiatric Association's prestigious Manfred S. Guttmacher Award for best book in law and forensic psychiatry in 1999, as well as several other awards. Dr. Brown and his colleagues found that every study examining the question of dissociative amnesia in traumatized populations demonstrated that a substantial minority partially or completely forget the traumatic event and later recover memories of the event. In fact, no study that has looked for evidence of traumatic or dissociative amnesia after child sexual abuse has failed to find it. Id at 126. Taken as a whole, especially considering the range of populations studied and experimental designs utilized, the empirical research reviewed by Dr. Brown and colleagues constitute an irrebuttable conclusion as to the reality of dissociative amnesia.
Moreover, the reality of dissociative amnesia is accepted by all the major national scientific bodies regulating the practice of psychology and psychiatry and thus is generally accepted in the relevant scientific community. For instance, the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)which is written and published by the American Psychiatric Association recognizes memory problems to be a common feature of five post-traumatic conditions: Post-Traumatic Stress Disorder, Dissociative Amnesia, Dissociative Fugue , Dissociative Disorder Not-Otherwise-Specified , and Dissociative Identity Disorder . The term "dissociative amnesia" appears as follows in section 300.12:
Dissociative amnesia is characterized by an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness.
The DSM-IV also recognizes that dissociated memories may later return.
The reported duration of the events for which there is amnesia may be minutes to years. . . . Some individuals with chronic amnesia may gradually begin to recall dissociated memories.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) (1994) at 478-9.
In addition to acceptance by the American Psychiatric Association, dissociative amnesia is also recognized by the U.S. Department of Health and Human Services and the National Center for Health Statistics in their inclusion of this disorder in the International Classification of Diseases , 9th Revision, Clinical Modification (ICD-9-CR); by the American Psychological Association in their Final Report from the Working Group on Investigation of Memories of Childhood Abuse (1996); and by the International Society for Traumatic Stress Studies (ISTSS) in their practice guidelines for the treatment of post-traumatic stress disorder (PTSD).
The California legislature has also accepted the doctrine of dissociative amnesia. As pointed out by Justice Sonenshine in Tietge v. Western Province of the Servites, Inc. (4th Dist. 1997), 55 Cal.App.4th 382, 64 Cal.Rptr.2d 53: "Our Legislature was painfully aware that childhood sexual abuse by definition often leads to repressed memories" (concurring and dissenting opinion).
Moreover, Loftus herself has recognized the reality of dissociative amnesia in some of her previous work. See, Elizabeth F. Loftus, S. Polonsky, & M. T. Fullilove, Memories of Childhood Sexual Abuse: Remembering and Repressing. 18 Psychology of Women Quarterly 67-84 (1994) (finding that 19% claimed of abuse women forgot the abuse for a period of time, and later the memory returned). In fact, Loftus was an author of the American Psychological Association's 1996 Final Report from the Working Group on Investigation of Memories of Childhood Abuse which acknowledged that "it is possible for memories of abuse that have been forgotten for a long time to be remembered." Thus, as the judge in a case where Loftus served as a defense expert noted:
. . . even Dr. Loftus conceded upon cross-examination that the APA policy which she helped to create notes that "it is possible for memories of abuse that have been forgotten for a long time to be remembered . . ." The language of the APA report indicates that the challenge to recovered memories which is included therein concerns the mechanism by which the delayed recall occurs, rather than the fact of its occurrence . . . Furthermore, Dr. Loftus acknowledged that dissociation from a traumatic event is a recognized phenomenon.
State v. Walters , Nos. 93-S-2111-2112 (Superior Ct., Hillsborough Co., N.H. 1995) at 22-24.
In sum, the case study of Jane Doe was but one study in a large body of evidence supporting dissociative amnesia. As such, it was not of such great import that California laws should be set aside and the Defendants granted immunity from tort laws and ethical standards.
This case is not, as the Defendants suggest, about freedom of expression and First Amendment rights; nor is about the validity of repressed memory, improper intimidation of scientific viewpoints, or stifling legitimate scientific methods and procedures. Rather, this case is solely about the Defendants' conduct. Specifically: Was the Defendants' behavior in violation of ethical norms and rules of law?
The Defendants' conduct, as alleged by Ms. Taus, not only invaded the privacy of a private citizen, but relied on fraud and misrepresentation in order to do so. These are very serious charges. Such conduct, if proven, is not only reprehensible from a moral standpoint, it violates ethical guidelines set by the Defendants' profession, and served no legitimate scientific purpose. Moreover, such conduct could be potentially harmful to Ms. Taus' well-being. Unchecked, such tactics would place every research subject in California at risk and cast a taint on legitimate efforts to study trauma. Allowing unlawful behavior by researchers could also impede scientific progress by discouraging people from participating in scientific research for fear that they will be targeted. In the end, both the interests of science and the public welfare are served by preserving the fundamental human rights supported by the Constitution, federal regulations, state laws, and ethical norms.
For these reasons, we respectfully request that the California Supreme Court deny Defendants' Petition for Review and allow Ms. Taus her day in court.
DATED: June 15, 2005
Paul Jay Fink, M.D.
191 Presidential Blvd., Suite C-132
Bala Cynwyd, PA 19004
Phone: (610) 644-5007
Submitted on behalf of Leadership Council's Advisory Board
Based in Washington, DC, the American Psychological Association (APA) is the main scientific and professional organization representing psychologists in the United States.
In addition, the federal government's increasing sensitivity to the privacy rights of citizens led to the passage of the Health Insurance Portability and Accountability Act (HIPAA), 45 CFR Part 160 and Part 164. HIPAA protects the rights of individuals -- including research subjects -- to keep confidential information about themselves and their health private.
Abuse survivors feel they are being victimized a second time if professionals react with disbelief or disregard for their ordeal. See, L. Madigan & N. Gamble, The Second Rape: Society's Continued Betrayal of the Rape Victim. (1991). Negative social reactions have also been shown to hinder recovery in rape victims and are related to greater PTSD symptom severity. See, S. E. Ullman, Social Reactions, Coping Strategies, and Self-Blame Attributions in Adjustment to Sexual Assault, 20 Psychology of Women Quarterly 505-526 (1996).