A recent ruling in a Carthage rape case will make new law in North Carolina.

The case against a Moore County man accused of raping his 8-year-old daughter in 1996 is based on a controversial theory called "repressed memory" syndrome. It has various other names, but all refer to the idea that traumatic events can be hidden - sometimes for years - and then suddenly recalled.

Superior Court Judge John O. Craig III recently listened for hours to testimony by two leading psychiatrists on the current state of scientific knowledge about repressed memory and to arguments by attorneys for the state and the defense before granting a defense motion to suppress any evidence involving this particular psychological phenomenon.

"It just runs the risk of confusing the jury or causing undue prejudice," Craig said. "And that's really what it comes down to."

The names of both the father and the daughter are being withheld. It is a policy of The Pilot not to include the names of alleged rape victims, and identifying even the father would indirectly identify the daughter.

In this hearing, actual details of the -allegations were not part of the testimony or arguments in court. The court ruled against the state on this matter, agreeing with defense attorneys that such details were not relevant to the issue at hand.

'Pseudo Memory'?

In documents filed with the court by both sides, the story began with a young woman claiming to have had the experience of -suddenly remembering a traumatic event from her past - whether what she went through was recalling an actual event or what doctors call a "pseudo memory," a false recollection that sometimes can be as vivid as a real one.

The girl began having fainting spells and panic attacks in her late teenage years and sought therapy from numerous providers, according to the documents. Eventually, these episodes progressed to states in which she behaved as if she were regressing to age 7. She would "speak of a 'mean man' she worried would hurt her," according to a brief filed by the state.

Doctors diagnosed her as having "conversion disorder" (which used to be called "hysteria"), and she entered therapy with Liz Watson at Moore Regional Hospital's Behavioral Health Services. During therapy, she told Watson about an incident when she slipped while getting out of the bathtub at her father's house and hurt herself in her "private area." She remembered her mother taking her to the emergency room.

She and Watson "talked about how the mind will often protect one by going somewhere else when something very difficult or painful might be happening," court documents say.

At her next session, she told the therapist she had suddenly remembered her father lifting her from the bathtub and holding her against the wall, then throwing her to the floor and raping her, the documents said. She described that memory as "like a flashback" that suddenly hit her when her boyfriend brushed his arm against her neck.

Highly Controversial Theory

In another North Carolina case cited by the state, courts ruled out any testimony about "alleged repressed memories of childhood sexual abuse without accompanying expert testimony on the phenomenon of memory repression" and said any testimony about suddenly remembered traumatic incidents from childhood "must be accompanied by expert testimony on the subject of memory repression."

The question in the Moore County case was whether such expert testimony would be admitted. Defense lawyers Patrick Mincey and Eddie Meacham made a motion to suppress it, contending the theory is highly controversial and far from accepted science.

"Theoretical processes such as repressed memory, recovered memory, traumatic amnesia, dissociative amnesia, psychogenic amnesia are highly unreliable, are subject to unknown error rates, and are clearly not able to assist the trial court, and are likely to mislead the legal system," the two attorneys said in a brief filed with the court. "The terms all refer to the claimed involuntary and 100 percent total inability to remember traumatic events, with the 'repressed memory' ... somehow stored in a pristine, reliable manner that is somehow 'recovered' years later."

They contended that there is no credible scientific evidence or any general acceptance in the scientific community of such a process or any way to determine the accuracy of such "memories," describing the syndrome as involving "extraordinary claims" without sufficient peer-reviewed standing.

Both defense and attorneys for the state accepted the qualifications of two Harvard Medical School doctors who testified. Special Deputy Attorneys General Laura Parker and Amber Barwick represented the state.

Validating Is Difficult

A defense expert, Dr. Harrison G. Pope, director of the Biological Psychiatry Laboratory at Harvard Medical School's McLean Hospital, called into question any notion that such events are established science.

Pope testified that the theory somehow suggests a person could have a terrible trauma and then be totally unable to remember it for a period of time. He described that as counter to nature, since one function of trauma is protection in the future. If past dangers are forgotten, he said, they are more likely to be encountered again. Nature sides with memory, he said.

Pope told the court that violent disagreement exists in the scientific world about repressed memory. He said he reviewed 77 studies involving more than 11,000 people without so much as a single one containing even one case of supposed memory impairment not explainable in some other way. His opinion was that it did not exist.

A state expert from the same psychiatric hospital, Dr. James A. Chu, who is chief of hospital clinical services, had a somewhat different view. While acknowledging that controversy exists, Chu supported the argument that such recovered memory exists. In clinical practice, the patient's word is generally trusted, though facts are important. Validating a delusion would not be helpful to anybody, he told the court.

However, for a therapist to attempt to go out and do detective work verifying what a patient told them could be considered unethical, Chu said. He said there is no way to tell, in therapy, whether something a patient says is factually true or an unconscious mechanism.

That hit home with the judge.

Reliability Questioned

"I kept thinking back to one remark that Dr. Chu made during his direct testimony," Craig said as he delivered his ruling. "He said that this is an unconscious defense mechanism that represses bad or traumatic memories, and he described it as being Freudian. And then he sort of -parenthetically said you cannot disprove a Freudian mechanism. I think the converse is also true. It's very difficult to prove a Freudian mechanism."

Craig began explaining his decision by granting, for the sake of argument, most of the contentions Parker advanced on behalf of the state.

"Let's assume that we do call it in this instance an established scientific theory," he said, "if for no other reason than because it's been around for a while, and it's certainly been thoroughly discussed. And it's been criticized. Everyone is in agreement that it's controversial. Does that make it established? Well, I don't know. But let's assume just for the sake of going through this analysis that we can call it an established scientific theory."

The question would then arise as to the reliability in court of expert testimony as a guide to jurors deciding questions of fact.

"Dr. Chu would be limited to -giving an explanation to the jury that it was possible for the victim to have been experiencing a repressed memory or disassociative amnesia phenomenon so that the jury could evaluate the reliability of her testimony and decide whether she was telling the truth," Craig said. "And I think, as Ms. Parker noted to me in her closing argument, this is a very narrow and limited opinion that Doctor Chu could give."

'Underlying Agenda'?

Even granting all that, Craig said he would still have to weigh the possible value of such -testimony against the risk of jurors being prejudiced to favor an expert's word or being confused by conflicting expert testimony where the science is controversial.

"There is the reliability of the therapist who is taking down the notes and whether the therapist has been too suggestive, has asked leading questions, hasn't asked the right questions, how much training and experience does the therapist have, and so you've got that to contend with," he said. "And then finally you can overlay another problem, and that is other possible explanations for the behavior on the part of the -victim patient, such as pseudo memory - some possible underlying agenda that has nothing to do with the repressed memory, but actually turns out to be something entirely different."

Other such possibilities that have been suggested, Craig said, include "distorted memory, confabulation, pseudo memory and self-suggestion that would be emerging from the patient's internal mental workings."

Without declaring recovered memory either invalid or valid science, Craig said he was acting on his inherent authority under the rules of evidence to exclude testimony on repressed memory as prejudicial and apt to confuse jurors.

"So in that regard I'm going to grant the motion to suppress," Craig said, asking the attorneys to craft a more detailed order.

The ruling, if upheld, will set a precedent in North Carolina, denying admission of recovered memory testimony, as no court in the state has previously ruled on the question in any criminal case. Parker said last week that the state has filed an appeal with the N.C. Court of Appeals.

Contact John Chappell by e-mail at jchappell@thepilot.com.