Dec
12

Fighting Freud With Nit-Wit Theories

Imagine the following: A man accused of murder offers an alibi defense. He could not have committed the crime because at the precise moment the victim was killed, he was being help captive by little green people from Mars. He was captive in a Motel 6 room where he was forced to watch endless reruns of Sesame Street. He'll never forget the sing-song theme of the show. Indeed, the more he thinks about the experience, the more he recalls of it. But he's been ashamed to talk about it. Who would believe him?

No lawyer in his or her right mind would put on such an alibi, of course. The story just isn't plausible. We don't believe in alien abduction. At least I think we don't.

But we welcome with open arms any child who alleges he or she has been abused, even if those allegations are a decade or more old and lack any form of corroborating evidence. We've even created an entire industry of folks engaged in such weighty sounding nonsense as "forensic interviewing."

This industry is served by well meaning people. They want to burn the witches in our midst. Abuse a child, and steal innocence. We have to draw a line against these secret crimes, don't we?

By all means. But the business of line drawing ought not to be the work of something akin to hysteria. In alleged child sex cases, we have virtually abandoned statues of limitations. And we are creating an environment in which children are encouraged to "disclose" uncritically events that may or may not have taken place. We then absolve ourselves of responsibility for the consequences by saying we'll let juries decide the ultimate issues.

Suppose a man is accused of fondling a five, six or seven year old a decade or so after the alleged "facts." The child mentions this to parents in the midst of a heated exchange with her parents as he own sexuality blossoms. "Wicked uncle Ernie abused me," she says. "He was inappropriate."

Mom and Dad whisk the teen off to a therapist, who reports the claim. And the child, a few days later, finds herself in a so-called "forensic" interview. A videotape roles. The child is encouraged to "disclose" what is on her mind. No leading questions, a supportive interviewer, and police on the other side of a mirrored wall watching. The child repeats her claim.

From such stuff criminal cases are made every day in this state. But note that these witnesses are coddled despite their inherent unreliability. Placing a child in a room and encouraging them to "disclose" means little more than engaging in uncritical mining of the contents of a mind.

Sigmund Freud did that a century ago, and when he published "Three Essays on Sexuality," he scandalized Europe. He attributed all manner of adult psychiatric disturbances to childhood sexual abuse. The reading public was aghast. Was perversion taking place behind every door?

Freud later reassessed his opinion, and concluded that reports of childhood sex abuse were common not because there was a wicked uncle Ernie lurking behind every door, but because there are wicked desires lurking within the bosom of us all. Psychoanalysis was born of the recognition the a beast lurks within every civilized soul. And when that beast roars, children hear the sound and cannot distinguish fact from fiction. Childhood memories of sexual misconduct aren't reliable as historic truths.

I confronted a "forensic" interviewer with Freud the other day in a courtroom. She acknowledged all this, but only after fighting. She tried to wiggle free by saying she never really met Freud.

I chided the state at the break. "You need to read your Freud," I said. "Freud's been repudiated," he replied. Oh? By whom? The tepid half-wits congratulating one another in such programs as Finding Words? I heard one such expert testify that she would, if asked, use her forensic skills to help a man "disclose" his abduction by little green people. She blushed when she admitted this.

Freud did in fact repudiate his earlier work. Uncritical "disclosure" of memories of childhood abuse often do not yield historic truths about the conduct of others. Such memories are often fantasies. Why are we uncritically mining these memories as evidence today? Do we care so little for liberty? Or is this just a passing fad?

Reprinted courtesy of the Connecticut Law Tribune.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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