Diane Ereth was charged with five sex crimes in August 1994. Thirteen months later, at the suggestion of one of her public defenders, she underwent a sex offender evaluation. Ereth stated she was willing to undergo counseling and psychotherapy to determine whether she was repressing memories of the offenses.
In December 1995, Ereth filed a signed plea agreement and notice of acknowledgment and waiver of rights. Under the terms, Ereth entered two Alford pleas. The U.S. Supreme Court held in North Carolina v. Alford, 400 U.S. 25 (1970) that an individual accused of a crime may "voluntarily, knowingly, and understandingly consent to the imposition of prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." Ereth noted, "I believe that the facts are overwhelmingly against me, and that I would be found guilty in a trial, but at this point I cannot admit to that guilt."
After the filing, Ereth began sex offender counseling, including hypnosis. Six days before sentencing, Ereth moved to withdraw her guilty pleas. She said counseling had brought her to the "clear understanding" that she did not commit the crimes with which she had been charged. The court denied her motion. it set a new sentencing date and ordered Ereth to undergo a psychiatric evaluation.
The examining physician noted that Ereth was not suffering from a psychotic disorder, and he expressed his concerns about the treatment program Ereth was in. He asserted, "The contentions of that facility that such treatment can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputable professional organization in the field of mental health....There is no credible evidence that repression of memory of being the victim can happen, much less for being the perpetrator.
The day before the new sentencing date, Ereth asked the court to reconsider her motion to withdraw the guilty pleas, based on the opinions of the psychiatrist. She said she would not have pleaded guilty had she known of the information in his report. The court denied her motion and sentenced to a term of five years, with three years suspended, for each of the two counts.
Holding: The Supreme Court of Montana agreed with Ereth that her plea was not voluntarily, intelligently and knowingly made. Had Ereth known of the "substantial amount of controversy" surrounding repressed memory therapy, she might not have chosen to enter her plea. Ereth may have "truly believed" that she had repressed her memories and entered the treatment program to "be able to recover those memories and get help." When there is such doubt about a plea, the doubt must be resolved in favor of the defendant.
Another opinion dissented thusly: "The record in this case indicates that Ereth chose to plead guilty because that alternative course of action was the one most likely to keep her out of a lengthy prison sentence."
| Steven J. Lynn, Ph.D. Professor of Psychology State University of New York at Binghamton |
 | Joseph McCann, Ph.D. Psychologist United Health Services Hospitals |
Drs. Lynn and McCann comment: The claim of "robust repression"—that large chunks of trauma-related experiences can be obliterated from memory—is highly controversial. In fact, traumatic events are often recalled more easily than non-traumatic events because memories of traumatic events are intense and distinctive. Significant life events such as robbery, assaults, and hospitalizations can occasionally be forgotten. However, such events are readily recalled when memory cues are provided.
Even if one accepted the proposition of robust repression, it is doubtful that this theory would apply to a sexual abuse; it is incredible to argue. that perpetrating abuse traumatizes the abuser. Perhaps a perpetrator's recall of the abusive events would be compromised due to guilt and fear of legal reprisals. However, it is more plausible that guilt and fear of punishment would increase rumination about and rehearsal of the events and thereby improve recall. Even if a perpetrator were strongly motivated to not think about engaging in child abuse a cue such as viewing videotapes of victim testifying about their abuse would be expected to reinstate recall.
The present case can be contrasted with instances of adult recall of childhood sexual abuse. Events that occurred many years in the past could well be forgotten, regardless of whether they are traumatic or mundane. However, in Ereth, the alleged perpetration of abuse occurred in the recent past, so there is every reason to believe it would be remembered.
Can people undergo therapy to determine whether they are repressing memories of an offense? Contrary to Ereth's counselor's contention, no psychotherapeutic procedure can determine the truth value of a claim, and no method can avoid implanting false memories. Even when no memory-enhancing techniques are used, some memories are likely to be distorted because memory involves a reconstruction rather than a literal replay of past events. The only way to determine whether an event is historically accurate is to corroborate it.
In fact, the use of psychotherapeutic techniques to help determine the veracity of a claim of guilt or innocence may well contaminate self-reports and memories. Consequently, valuable evidence may be forever tainted, and it will be much more difficult, if not impossible, to sort out valid self-reports and memories from those that have been contaminated by therapeutic suggestions.
Treatment of Perpetrators: Why Dubois?
- The abuse does not traumatize the abuser
- Recent act as opposed to remote abuse
- False memories may implant rather than a literal replay
