THE STATE OF NEW HAMPSHIRE

The defendant is charged with seven counts of Aggravated Felonious Sexual Assault, six counts of Felonious Sexual Assault and five counts of Indecent Exposure and Lewdness.  All of the assaults allegedly occurred when the victim was between the ages of six and eight years old.  Because the victim has no memory of the assaults until she was fifteen years old, the State now seeks a pre-trial ruling under State v. Hungerford to allow the introduction of what it concedes are the victim's repressed memories.  The defendant objects and argues that the recovery and reliability of repressed memories remains suspect.  After a six-day evidentiary hearing, during which the court considered expert testimony, the State's motion is DENIED and the court precludes the State from introducing the victim's testimony at trial.  ^[1]

1. The hearings began in August, 2004 and continued into September, 2004.  Because the court allowed the State to present certain psychological testing, the results of which were not provided to the defendant until the hearings began, the court permitted a brief continuance to allow the defendant to present rebuttal expert testimony.  Thereafter, the prosecutor handling the case was placed on medical leave, thus requiring additional continuances.  Finally, substitute counsel for the State appeared and the final day of hearings was held on March 10, 2005.

The victim, Rhianna Light, is an eighteen-year-old woman who is the biological child of the defendant and Stacy Light.  When Rhianna was approximately two years old her parents divorced and Rhianna lived primarily with the defendant.  When Rhianna was in the second grade, the custody arrangement changed and she spent alternating weeks living with each parent.  Sometime in 2000, Rhianna's relationship with her mother deteriorated, and the defendant and Ms. Light agreed that Rhianna would live full-time with the defendant.

In May 2001, the defendant physically assaulted Rhianna while they were shopping at the Wild Wolf.  As a result, a DCYF investigation was conducted and the defendant was eventually convicted of simple assault.  In addition, Ms. Light sought full custody of Rhianna and after several months of court hearings, the court granted Ms. Light's request.

As early as age four, Rhianna participated in psychotherapy to cope with the constant discord between her parents and to address feelings of anxiety she experienced throughout childhood and into adolescence.  From the fall of 1999 through April 2001, Rhianna was in counseling with Catherine Ganley-Brown, a psychiatric nurse practitioner who worked for Seacoast Mental Health.  The goals of therapy were to assist Rhianna in coping with anxiety and other issues related to her family circumstances.

During a therapy session in February 2000, Rhianna disclosed that she had been experiencing a recurring dream in which a man touched her genitals.  In the dream, Rhianna could hear the male's voice but could not identify him.  She believed the man was somehow connected to her kindergarten class.  Ms. Ganley-Brown told Rhianna that hearing voices could be an indication that Rhianna had been the victim of sexual abuse.  After the first disclosure, Rhianna did not discuss the dream further and Ms. Ganley-Brown testified that she did not attempt to explore the dream or to recover any memories that might be related to the dream.

After Ms. Ganley-Brown left Seacoast Mental Health in the spring of 2001, Rhianna continued therapy with Lisa Higgins, a licensed social worker.  The sessions with Ms. Higgins focused primarily on coping with the upcoming criminal and family division hearings related to the May 2001 physical assault.  Some of the sessions included both Rhianna and her mother.

On September 6, 2001, Rhianna revealed that she was hearing a male voice almost daily.  While she could not understand what the voice was saying, she knew it was a male voice and she described the tone of the voice as frightening.  During the next session, Rhianna read some poetry to Ms. Higgins, in which Rhianna expressed conflicting feelings about her father.  After listening to the poetry, Ms Higgins suggested that the voice Rhianna had been hearing was probably her father's.  Rhianna told Ms. Higgins that she had the same suspicions about the identity of the male's voice.

Over the next several months, Rhianna became increasingly more anxious and nervous.  She expressed feelings of anger toward her father and competing feelings of sadness over missing him.  In addition, she was experiencing a tremendous amount of stress over the upcoming custody hearing, sentencing hearing, and the regular court delays attendant to the hearings.

On December 21, 2001, Ms. Higgins received a phone call from Stacy Light, who indicated that Rhianna was hearing a disturbing voice that Rhianna was linking to "something she has blocked out."  Ms. Light also told Ms. Higgins that she, Ms. Light, was becoming increasingly upset by Rhianna's dream because she had also been sexually abused as a child.  Rhianna then spoke to Ms. Higgins and told her that, "she had a gut feeling something happened to her and it could be sexual abuse."

On December 28, 2001, Rhianna reported hearing voices and told Ms. Higgins she had an intuition she had been sexually abused, but could not remember anything specific.  Ms. Higgins inquired whether this intuition could be the result of a seed planted by a former therapist in years past.  Rhianna replied she wasn't sure at that time.

On May 15, 2002, Rhianna told Ms. Higgins she had become increasingly depressed and was having suicidal thoughts.  Rhianna, her mother, and Ms. Higgins discussed hospitalization and the next day Rhianna was admitted into Hampstead Hospital.  After her release from the hospital, Rhianna met with Ms. Higgins on May 29, 2002 and reported she had experienced flashbacks to sexual abuse while in the hospital. 

At Rhianna's next appointment, she disclosed newly recovered memories that her father had inappropriately touched her on three occasions when Rhianna was between the ages of 5 1/2 and 7 1/2.  Ms. Higgins informed Rhianna that she would have to report these allegations to DCYF.  Rhianna did not provide any details of these incidents at the time.  On June 26, 2002, however, Rhianna presented Ms. Higgins with a letter detailing the alleged sexual abuse.  Ms. Higgins testified that while she provided positive reinforcement, validation and normalization to Rhianna regarding the reported incidents of abuse, she did not engage in specific memory retrieval techniques.  On July 2, 2002, Michelle Dow of DCYF interviewed Rhianna.  In both the letter to Ms. Higgins and during the interview with DCYF, Rhianna indicated the abuse happened every night for approximately one year.

After these disclosures, Rhianna read a self-help book on sexual abuse Ms. Hissing loaned her and bought two other books regarding sexual abuse.  The books described coping mechanisms to use in dealing with feelings of guilt surrounding sexual abuse.  Rhianna also participated in an online discussion forum for sexual abuse victims called Pandora's Box.  Rhianna testified that none of these resources provided her with any details of sexual abuse, but rather assisted her in processing the conflicting emotions the recent memories were provoking.

In September 2002, Ms. Higgins suggested Rhianna participate in EMDR therapy to treat her symptoms of Post-Traumatic Stress Disorder resulting from the memories of sexual abuse.  Rhianna engaged in EMDR therapy with Donald deGraffenreid, a licensed clinical social worker, for approximately five sessions.  At the hearing, Mr. DeGraffenreid described the three-step process of EMDR he employs with his patients.  First, Mr. DeGraffenreid discussed the therapy with the patient and then asks the patient to think about the therapy.  Second, the patient fills out a two-page worksheet that identifies a specific issue of trauma to be addressed during treatment and any negative beliefs or stresses associated with the trauma.  Finally, Mr. DeGraffenreid engages in bilateral stimulation of the patient's brain.  While focusing on a mental image related to the trauma, the patient follows Mr. DeGraffenreid's finger with her eyes.  Then Mr. DeGraffenreid taps the patient's hands alternately, followed by a sound played in the patient's ears alternately.  Mr. DeGraffenreid testified he does not comment on the patient's images or issues, nor does he engage in any memoy retrieval techniques.  In Rhianna's case, she focused on three different incidents of abuse perpetrated by her father -- physical, emotional and sexual.  Mr. DeGraffenreid recalls they spent no more than one session addressing sexual abuse.

In November 2002, Rhianna visited the Rockingham County Attorney's Office to discuss the possibility of criminally prosecuting the defendant.  After reviewing the facts of her case, the Assistant County Attorney told Rhianna he would be unable to bring charges based on her memories thus far and he suggested she attempt to recall more specific memories.  Over the following three-week period, Rhianna sat in her closet and recorded detailed memories of specific instances of abuse.  Some of the memories came back to her at different times during the day, while she was at school, for example.  Other memories cane to her while she was sitting in the closet.  After recalling a specific memory, she would sit in her closet and record the memory.

After recording the memories, Rhianna reviewed family photo albums and identified pictures that corresponded to some aspect of the memory, for example photographs depicting a particular dress she was wearing at the time she was abused.  Ultimately, Rhianna presented to the County Attorney's Office memories of seven different incidents.  The State now seeks to introduce these memories into evidence at the defendant's criminal trial.

The New Hampshire Supreme Court first addressed the admissibility o repressed memory testimony in State v. Hungerford, 142 N.H. 110 (1997).  In its decision, the Supreme Court recognized that it is generally accepted in the psychological community "that people are capable of repressing or dissociating conscious recollection of all or part of certain traumatic events."  Id. at 119. The Court also noted, however, that virorous debate exists on the questions of "how the process of repression occurs, how the process of retrieval occurs, and indeed if in fact retrieval is possible at all."  Id.

Relying on State v. Cressey, 137 N.H. 402 (1993) and Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court listed eight factors for the trial courts to consider in determining, "the reliability of a recovered memory, -- that is, whether the recovered memory is reasonably likely to be as accurate as ordinary memory." Hunderford, 142 N.H. at 125.  The factors are:

1. the level of peer review and publication on the phenomenon of repression and recovery of memories;
2. whether the phenomenon has been generally accepted in the psychological community;
3. whether the phenomenon may be and has been empirically tested;
4. the potential or known rate of recovered memories that are false;
5. the age of the witness at the time the event or events occurred;
6. the length of time between the event and the recovery of the memory;
7. the presence or absence of objective, verifiable corroborative evidence of the event; and
8. the circumstances attendant to the witness's recovery of the memory, i.e., whether the witness was engaged in therapy or some other process seeking to recover memories or likely to result in recovered memories.

Id. at 125-26 (citations omitted).  Further inquiry is required if the witness "was engaged in formal psychological therapy or some other process aimed at, or likely to facilitate, the recovery of memories.  Id. at 126 (citation omitted).

In the case of recovery attendant to therapy, this inquiry includes an examination of the therapist's qualifications, the type of therapeutic approach used, whether complaints of false accusations have been filed against the therapist, whether the therapist ordinarily seeks hidden memories of believes that many psychological problems stem from sexual abuse, and whether the therapist remains detached during the process or 'validates' allegations of abuse that arise.

.: Id. (citation omitted).

Following a discussion of the relevant scientific literature, the Court determined that, at that time, there was no general acceptance within the scientific community regarding the process of recovering repressed memories, Id. At 130, and stated that "[I]n the case of repressed and recovered memories, the level of submission is high, but the debate over methodology and the meaning of results continues."  Id. at 126.  Although the Court concluded the phenomenon of recovery of repressed memories had not yet reached a point of scientific reliability upon which the Court may rely, the Court recognized that "[t]here will probably be a day, as there has been regarding the forensic use of DNA, when courts can be given reliable, competent information on the issue of repressed memory."  Id.at 133-34.  In considering the admissibility of repressed memory, the Supreme Court suggested "a case-by-case approach tempered with skepticism."  Id. at 122.

According to the State, the day has come for this court to reconsider the holding in Hungerford.  Specifically, the State argues there is now general acceptance in the psychological community regarding the process of repressed memory retrieval.  Alternatively, the State contends that even if the court finds the process of recovering repressed memories is not yet scientifically established, "the indicia of reliability present in the particular memories . . . rise to such a level that they overcome the divisive state of the scientific debate," and are admissible. Id. at 134.

In 1997, the Supreme Court affirmed the trial court's finding that the phenomenon of memory repression and recovery had been extensively addressed in the psychological literature.  The Court concluded, however, that significant criticism regarding the methodology used undermined the validity of the clinical studies.  For example, the court relied on the following in concluding some studies were not valid:

the subjects were "recruited" by their therapists; it is unclear whether the reported underlying events were confirmed in any way; it is unclear whether the events were "sufficiently traumatic" to have been remembered at every moment; and an affirmative answer to the question conveys insufficient information to conclude that full repression has actually occurred.

In addition, the Court noted the ethical impossibility of conducting controlled laboratory testing regarding the validity of recovered memories, Id. at 127; a concern that will obviously continue to hamper efforts toward obtaining the necessary general scientific acceptance of the process by which memories can be accurately recovered.

Since the Supreme Court's decision in Hungerford, the level of publication on the issue has continued to grow.  The State's expert witness in this case, Dr. Daniel Brown, presented the court with the findings of eighty-five studies on repressed memories of childhood sexual abuse, compared to approximately sixteen such studies available at the original Hungerford hearing.

The State claims these eighty-five clinical studies and an additional eight surveys of the psychological community indicate that the phenomenon of recovery of repressed memories is now generally accepted within that community.  According to Dr. Brown, a number of these studies address the methodological concerns expressed in Hungerford.  Based upon a review of the articles provided to the court and the testimony of Dr. Harrison Pope, however, the court concludes that the same or similar methodological critiques still apply.  For example, some of the studies continued to rely on self-reporting and utilized questions that could be interpreted to include whether the subject had simply chosen not to think about the abuse over time.  While the prospective studies did not rely on self-reported abuse, most merely confirmed the existence of the repressed memory phenomenon and did not address the reliability of the resulting recovered memory.  In addition, it is difficult, if not impossible, to discern whether subjects in the prospective studies repressed and forgot a memory of a traumatic event or deliberately failed to disclose the event.

Perhaps most persuasive was the testimony of Dr. Margaret Ward, a licensed clinical psychologist who has treated victims of child sexual abuse for over 25 years.  In addition to her clinical practice, Dr. Ward has received significant research training and conducts seminars regarding the repressed memory phenomenon.  Dr. Ward reviewed approximately 90 articles discussing the phenomenon of repressed memory, including studies designed to determine the validity of the recovered memory process.

Dr. Ward stated that, based upon her review of the repressed memory literature, there is no consensus regarding the mechanisms causing repression, the process of retrieval or whether repressed memories are as reliable as ordinary memories.  While there is general acceptance that repressed memories exist, Dr. Ward testified that the same cannot be said for the mechanism by which those memories return to consciousness.  Indeed, she indicated that since the Supreme Court's decision in Hungerford the controversy surrounding the process by which memories are recovered has intensified.

In support of her testimony, Dr. Ward relied on, among others, articles from the British Psychological Association, the New England Journal of Medicine, the New Zealand Medical Journal and the Journal of Child Sexual Abuse.  In all of those publications, the authors characterized the debate surrounding the recovery of repressed memory as controversial and polarized.  In addition, they described memory retrieval as a reconstructive process that is complex and fallible.  The court finds Dr. Ward's testimony particularly credible in light of her personal belief that the phenomenon of repressed memories exists.  Indeed, she has treated two patients that she believes recovered repressed memories of child sexual abuse many years after the abuse occurred.  Nonetheless, she has concluded from her thorough, objective review of the relevant literature that significant controversy remains within the psychological community regarding the reliability of recovered memories.

The State also relies on several surveys in which Board Certified Psychiatrists, Ph.D. clinicians, Psy.D. clinicians, Social Workers and Psychologists were asked their opinions regarding the validity of repressed memories.  While Dr. Brown concluded from the results of the surveys that the phenomenon of recovered memory had gained general acceptance in the psychological community, the actual data suggest otherwise.  For example, the surveys asked whether the clinicians believed repressed memory was valid, was possibly valid or was invalid.  Dr. Brown concluded that the clinicisns who categorized repressed memory as possibly valid had generally accepted the phenomenon as scientifically proven.  The court disagrees with this classification.  On the contrary, a clinician who indicates that the existence of repressed memory is possible has merely stated an acceptance of an underlying hypothesis rather than a conclusion that the phenomenon is generally accepted in the field.  Thus, the surveys Dr. Brown relies on to prove that the phenomenon is generally accepted actually demonstrate otherwise.

After applying the Hungerford criteria, the court determines that the reliability of recovered memories has not been sufficiently established in the psychological community to permit their admission into evidence.  Notwithstanding this finding, the Supreme Court in Hungerford stated that the indicia of reliability present in the memories may nonetheless "rise to such a level that they overcome the divisive state of the scientific debate on the issue."  Id. at 134. Under the circumstances presented here, the court finds that the memories in this case do not.

First, the court notes that Rhianna was engaged in psychological counseling consistently from the time she was four years old through the present.  While it appears that none of her therapists specifically engaged in memory retrieval techniques during therapy, Rhianna has undergone extensive therapy for sexual abuse.  Each therapist testified that the purpose of therapy was not to determine whether the abuse had in fact occurred, but rather to assist Rhianna in coping with the trauma that resulted from remembering the sexual abuse.  Consequently, Rhianna's therapists provided affirmation, validation and normalization of the reality of the sexual abuse as well as Rhianna's feelings regarding the abuse.  Such an environment, while not intentionally suggestive and while appropriately therapeutic, indirectly supports the patient's version of events, regardless of whether the patient's memories are accurate.  Moreover, one of Rhianna's first therapists specifically suggested that the recurring dreams about a male voice could be evidence of sexual abuse; a suggestion both Ms. Higgins and Dr. Ward described as inappropriate.

The court also considers the context in which the disclosures were made.  In this case, the defendant and Stacy Light were embroiled in a heated custody dispute over Rhianna, during which Rhianna first disclosed the incidents of abuse and while in the temporary custody of her mother.  In addition, Stacy Light indicated that she too had been abused as a child and told Ms. Higgins that Rhianna's memories were causing Ms. Light renewed trauma.  In light of Rhianna's stated need to be responsible for the well-being of her mother, and the stress Rhianna experienced as a result of her parents' discord, additional doubt is shed on the reliability of Rhianna's recovered memories.

The court is also troubled by the Assistant County Attorney's request of Rhianna to attempt to retrieve more specific memories of abuse.  After her hospitalization at Hampstead Hospital, Rhianna described her memories and flashbacks as revealing a general pattern of abuse that appeared to occur on a regular basis.  Weeks after the State's request for more specific memories, Rhianna provided written statements containing seven allegations of abuse in which she was able, for the first time, to recall substantial detail surrounding the incidents.  For example, Rhianna described the number of windows and stairs located in the home where the abuse occurred.  In addition, she recalled the precise location of where she and the defendant were sitting at the time of each incident and the specific clothing she was wearing when the defendant allegedly abused her.  Although unable to do so at the time of the DCYF interview when asked, she provided specific holidays or times of year when the abuse occurred.  Even according to Dr. Brown, individuals who recover memories of traumatic events generally provide little detail regarding peripheral facts, as Rhianna was able to do here.

The court next considers Rhianna's age at the time the events occurred and the length of time between the event and the recovery of the memory.  According to the indictments, the charged events occurred between 1991 and 1994, when Rhianna was between the ages of 5 and 8.  Rhianna recovered memories of abuse when she was hospitalized in 2002, more than ten years after the onset of the charged events and eight years after the abuse allegedly stopped.  Rhianna's young age at the time of the alleged abuse and the substantial period of time that passed before recovery weighs against admissibility.  See Hungerford, 142 N.H. at 132.

Finally, the court can find no corroboration for the alleged abuse.  While the State suggests that evidence of Rhianna's urinary tract infections provides support for her testimony that the defendant abused her, there are other explanations for the recurrence of this condition.  First, Rhianna's medical records reveal that at birth she suffered from vaginal lesions, which were surgically removed.  Second, Rhianna has suffered from urinary tract infections for most of her life and continues to have difficulties presently.  Finally, even if the urinary tract infections could provide corroboration for the allegations, the State offered no expert testimony on the issue from a qualified physician.

The State also claims Rhianna's statement to a child therapist that the defendant rubbed her back while she was in bed provides corroboration for the abuse.  First, Rhianna was four years old at the time she made the statement.  Second, there is nothing inherently suspect about a father rubbing a young child's back before bedtime.  Finally, Rhianna provided the statement at a time when her parents were disputing custody and when Rhianna was clearly torn between her loyal feelings for each parent.  The context in which the statement was made makes its corroborative relevance tenuous.

The State additionally argues that psychological testing of the victim in this case reveals that she possesses personality traits which make her prone to disassociative amnesia.  Thus, the State argues, she is more likely than others to repress memories of traumatic events and less likely to fabricate them when they are recovered.  In support of this theory, Dr. Brown testified about several forensic tests he used to assess Rhianna's psychological profile.  Based on the results of the testing, he concluded that Rhianna's individual personality traits are consistent with disassociative amnesia.

To rebut the State's theory, the dfendant offered the testimony of Dr. David Medoff, an expert in the field of forensic psychological testing.  Dr. Medoff testified persuasively that the methodology and interpretive techniques used by Dr. Brown to reach his conclusions were flawed.  For example, Dr. Medoff explained that Dr. Brown improperly applied the Impact of Event5 Scale to this case.  First, the test uses no known cut score, thus making is an unacceptable forensic tool.  Second, the designers of the test intended it to assess trauma that results from a single vent, such as a car accident, and not from a pattern of trauma over time, such as a prolonged divorce or, in theis court's opinion, years of abuse.  Finally, the test has never received peer review and has not been generally accepted as a forensic assessment tool.

Many of the other tests Dr. Brown employed were designed for use clinically and not forensically.  In addition, interpretation of the particular tests was extremely subjective and some of the tests were not accompanied by governing manuals, which generally ensure the integrity of testing.

Finally, Dr. Medoff testified that Dr. Brown's application of the MMPI in this case did not comport with ethical guidelines and violated the standards for appropriate MMPI interpretation.  Specifically, Dr. Brown failed to provide plausible alternative explanations for the test results.

Even assuming Rhianna possesses character traits that make her more susceptible to disassociative amnesia, the State failed to demonstrate that Dr. Brown's methodology for reaching this conclusion has been generally accepted in the relevant psychological community.  Moreover, the State's theory does not address this court's conclusion that, notwithstanding the existence of repressed memory, no accepted scientific methodology has been developed to test the accuracy of those memories.

The court is personally convinced from Dr. Brown's expert testimony that in a small number of cases, individuals who possess certain personality traits can repress and later recover memories of child sexual abuse, especially where, as here, the alleged abuse occurred repeatedly over a period of time when the victim was young and where the abuse was allegedly perpetrated by a close family member.  Unfortunately, whether the court believes in the validity of the phenomenon is not the legally required standard to apply in determining whether the evidence is admissible.  Instead, the court must apply the standard articulated in Hungerford.  In so doing, the court cannot conclude that the phenomenon of repressed memory recovery has yet been scientifically accepted.

Nor can the court find sufficient indicia of reliability present in the particular memories here to allow their admission into evidence.  In reaching this conclusion, the court does ot mean to suggest that Rhianna has fabricated the memories of abuse.  On the contrary, it is apparent that she genuinely believes the abuse occurred.  Rather, the court determines, based on the law and the evidence, that the reliability of memory retrieval has not been sufficiently established to allow the introcudtion of Rhianna's memories here.  Accordingly, the State's motion is DENIED.  ^[2]

SO ORDERED

Date: 4/4/05

Tina L. Nadeau

Presiding Justice

cc:

Andrew Cotrupi, Esq.

Rockingham County Attorney Office.

2. In this court's opinion, an overview of the law and science since the Supreme Court's decision in Hungerford, suggests that application of the standard articulated in Daubert may not be appropriate in determining the admissibility of psychologically repressed memories.  It is difficult to imagine a time when the validity of the manner in which repressed memories are recovered can ever reach the level of scientific certainty as has been achieved for the admissibility of DNA evidence, blood evidence, fingerprint evidence and other scientific processes.  That is because the process by which memory is created and/or recovered is not susceptible to concrete, empirical analysis.  Instead, this court would employ a standard requiring a threshold level of reliability before admitting the evidnce and permit the jury to consider the credibility of the repressed memories, including an assessment of the expert testimony.  Since this is not the standard in New Hampshire, however, the court is bound by the ruling in Hungerford.