Forensic Corner; Court Actions Bring Hope and Distress
Lee H. Haller, M.D.
For this issue, I have two significant items to bring to
your attention. Both involve actions taken by the court system.
One of them seems quite hopeful whereas the other, unfortunately,
is distressing.
First, starting with the positive, comes a report from the
juvenile court in Bozeman, Montana of a thoughtfully conceived
experimental program that establishes a "Court of Peer Review"
which becomes a part of the trial process for a selected group
of youths. The underlying idea is to bring the concept of
trial before a jury of one's peers into the juvenile court
in a reasonable fashion.
The essence of the program is that after a juvenile offender
admits guilt or has been found guilty, the Court of Peer Review,
consisting of six juveniles, is created. The jury is given
notification of the verdict and the recommendations of the
prosecutor and the probation officer regarding disposition.
Counsel for the offender, or the offender personally, is allowed
to address the jury directly. The jury's task is to formulate
its own recommendations for disposition. The judge then uses
these as part of the basis for rendering an official disposition.
The program has been in existence for two years. It is too
soon to know whether these proceedings will impact recidivism.
However, it is quite clear that being a juror has a significant
impact on those youth who serve. They take their involvement
in the legal system seriously and tend to be more stringent
in their recommendations than the probation officers. Two
of the recommendations that regularly emerge are: "Offenders
are to stay in school and attend every (emphasis added) class,
and offenders are to apologize personally to their victims."
(16 Child Law Practice 31)
For those child psychiatrists who work with juvenile courts,
this is a program to keep in mind. How well such an undertaking
will function and what impact it will have on offenders over
the long term, will likely depend on the psychological make-up
of the offenders as well as those of the jury. Hopefully,
someone is studying these variables as part of the project.
On the other side of the coin comes a most troublesome commentary
from the Court of Appeals of Maryland. The dicta arose from
a case involving repressed memories of alleged sexual abuse.
Two adult women charged the chaplain of a parochial school
with having abused them during the time that they were students.
The defense claimed the action was barred by the statute of
limitations. Maryland has a "discovery rule" which allows
for the time limitation of the statute to be put on hold temporarily,
until "the plaintiff knew or should have known that actionable
harm has been done to him." (679 A.2d 1090) The issue, then,
was whether or not there was believable reason for the plaintiffs
not to "know." This is the issue behind repressed memories.
Both women alleged that they had repressed any memory of the
repeated incidents until later in their adulthood, after the
normal statute of limitations for reporting had expired.
The Court of Appeals heard testimony of the plaintiffs, as
well as mental health experts on both sides, and reviewed
relevant literature. The result was that the Court, in upholding
the summary judgment in favor of the defendants, found there
to be no difference between normal forgetting and repression.
The Court wrote: "After reviewing the argument on both sides
of the issue, we are unconvinced that repression exists as
a phenomenon separate and apart from the normal process of
forgetting." From a legal standpoint, since normal forgetting
does not extend the time-frame one is legally permitted to
file suit, neither does repression.
My concern is not only for the impact this potentially has
on other repressed memory cases, but, more importantly, what
it says about this court's view of the underpinnings of psychodynamics,
and by inference, uncovering psychotherapy. The Court did
not limit its statement about repression to the issue of sexual
abuse, but rather made the broad, sweeping statement that
there is no scientific basis for determining that repression
and normal forgetting are at all different. If this broad
rejection is what the legal community garners from this case,
the validity of psychotherapeutic treatment for people of
all ages has been dealt a severe blow. The final note is that
the U.S. Supreme Court has declined to review the case.
Dr. Haller is in the private practice of forensic psychiatry
in Potomac, Maryland
AACAP News/July-August
1997
|
