The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An exchange I had with a fellow law professor revealed disagreement over whether Christine Ford's refusal to turn over any of her records of the therapy sessions in which she discussed the alleged incident involving Brett Kavanaugh, even in redacted form, to the Senate Judiciary Committee, undermines her credibility.
First, I addressed the claims that (a) the legal system treats what Ford told her therapist is presumptively true, because it comes within a hearsay exception; and (b) that her attorneys would not misrepresent what the records state, for fear of being sanctioned by the bar association. I wrote, (1) The fact that medical records are a hearsay exception doesn't give them a presumption of truth, and no court would instruct a jury on such a presumption. It instead only means that the legal system finds them reliable enough to be admitted, which is a low bar. (2) The bar association is largely a paper tiger, few unethical attorneys ever get sanctioned.
But these points are tangential. The heart of the matter, as I've noted previously, is this revelation from the original Washington Post story detailing Ford's allegations against Kavanaugh: "Years later, after going through psychotherapy, Ford said, she came to understand the incident as a trauma with lasting impact on her life. … She also said that in the longer term, it contributed to anxiety and post-traumatic stress disorder symptoms with which she has struggled."
As I wrote,
This raises many questions. What did she originally tell her therapist? Who was her therapist? Is her therapist known as a cautious clinician, or someone who believes in recovered memories, or what? What modalities of treatment did her therapist use? In particular, did she use hypnosis to either help Ford recover the memories, to render them less traumatic, or otherwise? When was Ford diagnosed with anxiety and post-traumatic stress disorder? What other trauma(s), if any, led her to suffer from PTSD?
The other professor made two basic points. The first is that there is no reason to believe that Ford's memory of the incident is a "recovered memory." The second is that there are sound privacy rationales that would lead an attorney to advise Ford to decline to turn over her therapy records, even in redacted form.
I responded that the question isn't whether it's advisable for Ford to decline to produce her therapy records, but whether this undermines her credibility, not because someone with "nothing to hide" would "turn over everything" but because by her own account, the therapy sessions are where the allegation against Kavanaugh first came up, and, by her own account the therapy sessions affected her perspective on the incident.
We can't entirely dismiss the notion that this is a "recovered memory." I agree it's unlikely, but we have no way of knowing for sure, given that we know nothing about the therapy, or the therapist.
In any event, "recovered memory" is a distraction, because while not impossible the much greater danger is that the therapist used a treatment modality, such as hypnosis, that affected Ford's perception of the memory, or engaged in suggestive questioning that doesn't arise to the level of "recovered memory," but skewed the memory. Details of memories from 30 plus years ago are already problematic from a reliability standpoint,* but memories that have been subject to hypnosis and related techniques are especially unreliable. Hypnosis can enhance memory, but it can also both lead the subject to add details to a memory, and to be much more confident that all the details of his memory are accurate.
For example, one plausible defense of BK is that the incident in question was not an attempted rape as described by Ford, but innocuous, or at least far less serious, "horseplay" that he and Judge quickly forgot, and that Ford herself dismissed for decades as insigifnicant. However, the incident became magnified, some details changed or exaggerated, and so on, during therapy. (Note that when I say this is "plausible," I'm not saying we have evidence of this, but without the therapy records all sorts of scenarios can't be dismissed out of hand.)
Similarly, it's been reported that Ford didn't initially name Kavanaugh as her attacker. It's possible she may have "remembered" who he was only under hypnosis or a similar modality, which could, for example, have been influenced by his name being in the news.
I've seen it asserted with confidence that no woman would forget exactly who perpetrator was of such an incident, even decades later, so it's impossible to believe that she initially didn't remember it was Kavanaugh. That is false. In fact, because I've been writing about the issue, a woman I know confided in me that she had a very similar experience to Ford's allegations, around the same time frame, when she was around the same age. She remembers some details of the incident, but doesn't remember who the boys were. But again, we could shed light on what Ford remembered and under what circumstances if we had her therapy records.
Let me be clear, again, that these speculations, possibilities. It's also entirely possible that Ford remembered the details without any prompting whatsoever, which would provide support for her account of the incident. But how can we know without knowing something about the therapy?
As for privacy concerns, they are legitimate. Who wants other people to see one's therapy records, redacted or not? And yet… Ford has publicly accused one of the most prominent people in the country, about to assume a position of extreme power, of being an attempted rapist. If one is going to make an allegation like that, with the ramifications of both changing the course of American political history and destroying someone's reputation, I think one can reasonably be expected to be forthcoming with all relevant information in your possession.
*Here is the abstract from the scientific paper linked to:
Although memory can be hazy at times, it is often assumed that memories of violent or otherwise stressful events are so well-encoded that they are largely indelible and that confidently retrieved memories are likely to be accurate. However, findings from basic psychological research and neuroscience studies indicate that memory is a reconstructive process that is susceptible to distortion. In the courtroom, even minor memory distortions can have severe consequences that are in part driven by common misunderstandings about memory, e.g. expecting memory to be more veridical than it may actually be.