Gregory Ford was a troubled young man, but he had been normal until his teens. In 2002, when he was in his mid-20s, his parents learned of a Boston Globe article about a former priest who had allegedly preyed on teenage boys in the Boston area. "After reading the Globe article," writes JoAnn Wypijewski, in an impressive article in Legal Affairs, "Ford's father said, 'I knew from that moment on that I was going to have all the answers.' "
The ex-priest was named Paul Shanley. In a 2003 article in Forbes, Daniel Lyons continues the story: "As his parents tell it, in years of therapy Greg had tried, unsuccessfully, to recall being molested by anyone. When his parents showed him the Globe article, he didn't remember Shanley or recognize his photograph. The Fords persisted, showing Greg a snapshot from his first communion with Shanley. At last Greg collapsed, sobbing, and said that from age 6 to 11 he had been raped by the priest. Later he estimated this happened 80 times. He alleged that Shanley took him from his one-hour Sunday school class, raped him, then returned him to his classmates."
Last month, Paul Shanley was sentenced to 12 to 15 years in prison for child rape. Because Shanley was 74, this was effectively a life sentence. His accuser—not Ford but Paul Busa, a 27-year-old Boston-area firefighter who recounted a similar story—said in a victim-impact statement, "However he dies, I hope it's slow and painful." The city of Boston, outraged by priestly pedophilia scandals and clerical cover-ups, agreed.
"Shanley may well have seduced teenagers" during the years in the 1970s when he ministered to abandoned and stray adolescents (many of them homosexual) in Boston, writes Wypijewski. If so, that was an inexcusable and possibly criminal abuse of his position and his charges. But this article is not about Shanley's life or character, which will receive no defense here. It is about the burden of proof in a criminal trial, and whether the Shanley conviction met it.
After Gregory Ford said he had been raped, his parents hired a Boston lawyer named Roderick MacLeish Jr., who had represented (according to Wypijewski) more than 200 alleged victims of priestly pedophilia. MacLeish won large civil settlements for Ford and three other men who, after learning of Ford's claim, came forward with similar stories of abuse at Shanley's hands. One of those other claimants was Busa.
The criminal case looked shaky. Prosecutors eventually dropped Ford as an accuser. They also dropped another accuser, and a third stopped cooperating. That left only Busa, who said his own lost memories of abuse at Shanley's hands began flooding back after he heard about his classmate Ford's recovered memories.
Sexual abuse of minors is a real and grim problem in America. What sets the Shanley case apart, however, is that it relies on uncorroborated recovered memories. To judge from press accounts, the prosecution presented no eyewitnesses, no physical evidence, no stories of contemporaneous health or emotional problems, and no recollections of unusual activity or behavior at the time. Shanley's accusers said he had removed them from catechism class regularly, sometimes weekly, in order to abuse them, but the boys' teacher said she never sent anyone to visit Shanley and that he never took anyone from class. How could such depravity go unnoticed? In civil depositions, Ford (writes Wypijewski) "testified that he buried the memory of each attack, and thus approached each new encounter with the priest as if it were the first, without fear."
The theory underlying this claim is that of traumatic amnesia. The notion is that some experiences are so horrible that the mind pushes them down into the subconscious, where they can fester and cause all sorts of physical and emotional distress. Eventually, often under the guidance of a therapist or on being cued by some stimulus, the amnesiac brings the memories into awareness.
This theory has a checkered legal past. Recovered-memory cases alleging sexual abuse, sometimes by satanic cults, surged into the hundreds in the early 1990s. Many alleged victims were steered by insistent therapists, and in many cases the recovered memory itself was the only evidence of abuse. (One plaintiff said her evidence of having been sexually abused from age 2 to 11 was based on "just what's wrong with me today ... [and] I'm still afraid of spiders.")
By the late 1990s, courts had become skeptical of traumatic-amnesia claims. It became clear that many recovered memories were false. Lawsuits and judgments dropped off sharply, as courts began insisting on corroboration and barring testimony that did not meet rigorous scientific standards. A 1996 Rhode Island decision "virtually ended all criminal prosecutions based upon recovered memories in the United States," R. Christopher Barden, a lawyer and psychologist who has worked on dozens of such cases around the country, said in an e-mail interview.
With some reason. The whole theory of traumatic amnesia is at best unproven, at worst quackery. Richard McNally, a Harvard University psychologist and the author of Remembering Trauma, says that people forget and recover nontraumatic memories all the time, but when an experience is truly traumatic, they "seldom if ever" forget it, though they may manage not to think about it. "No one has blocked out Auschwitz," he says. In a 2002 paper, three psychiatrists surveyed 77 studies of trauma survivors and found not a single reported case of traumatic amnesia. Moreover, McNally says, "the more repeated an event is, the less likely you are to forget that class of event."
It is not even clear that true traumatic amnesia has ever happened. Firmly corroborated cases number few or none, depending on whom you ask. "Virtually none," says Barden. A Web site says it has collected 96 corroborated cases, but much of the proffered corroboration is more suggestive than definitive, and 96 is not a large number.
Still, the human brain is complicated, and scientists almost never say never. Two other psychologists I spoke to—Michael Anderson of the University of Oregon and Chris Brewin of University College, London (and author of Post-Traumatic Stress Disorder: Malady or Myth?)—believe that traumatic amnesia may well have happened, at least to some people. Anderson believes he has found clues to a mental mechanism that may help people blunt or forget traumatic memories.
Even so, the Shanley case pushes the envelope. It asks us to believe that the victim completely forgot repeated and frequent rapes, and that 15 and more years later, the memories sprang back in gaudy and accurate detail. The word "accurate" is crucial. None of the scientists I talked to believes that recovered traumatic memories, if they exist, are more accurate than ordinary memories; and ordinary memories, especially of childhood events, are notoriously unreliable and malleable. Psychologists have had no difficulty implanting in experimental subjects vivid but entirely spurious childhood "memories" of being attacked by animals, riding in hot-air balloons, meeting Bugs Bunny (a Warner Bros. character) at Disneyland, and much more.
The jury in the Shanley case not only needed to believe that traumatic amnesia happens, it had to accept uncorroborated recovered memories at face value. It apparently did so because, in court, the accuser seemed sincere. Agonized, in fact. But psychologists know well that strong belief and vivid memory are no assurance of accuracy. A memory can be entirely false, yet emotionally and mentally indistinguishable from the real thing. One striking demonstration is McNally's research on people who believe they were abducted by space aliens. Their memories are "unbelievably vivid," and their emotional and physiological reactions in recounting them are "at least as great as reactions to real traumatic incidents," McNally says.
Intense emotion sways jurors, who believe someone must be lying. The jury sees the accused sitting coolly at the defense table while a wracked accuser tearfully recites tales of horror. But "lying isn't the issue," McNally says. The accuser may believe every word he says and still be entirely wrong. Courts now know this.
Under the circumstances, it is hard to blame the jury for deciding as it did. That is why the Shanley case should never have reached a jury without some corroborating evidence of a crime. "In British courts," says Brewin, "these kinds of allegations would not really get anywhere, unless there was independent evidence to support them."
For the most part, that is true in the United States, too. "Shanley is a bizarre aberration," Barden says. The case is a throwback, out of touch with today's best law and science. Shanley may be a monster. But the standard for a criminal conviction is proof beyond reasonable doubt. In this case, the state never met it.
© Copyright 2005 National Journal
Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. This article was originally published by National Journal.