JUSTICE DENIED: Reviewer’s Rejoinder

Vol. 19 No. 8 (August, 2009) pp.623-625

JUSTICE DENIED: WHAT AMERICA MUST DO TO PROTECT ITS CHILDREN, by Marci A. Hamilton. New York: Cambridge University Press, 2008. 168pp. Hardback. $23.00/£16.99. ISBN: 9780521886215.

Reviewer’s Rejoinder: Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: Whitley_Kaufman [at] uml.edu.

(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

Marci Hamilton has replied to my review of JUSTICE DENIED, her argument for eliminating statutes of limitations on sexual abuse this book. I am glad to have a chance to respond.

Professor Hamilton says that I claim that “no one knows what the statute of limitations will accomplish – even though some states already have started to experiment with the approach I advocate.” But she has misunderstood my point, which is precisely the opposite. I pointed out that, given that a good number of states have already adopted this reform, it should be quite a simple matter to determine whether in those states the reform had a significant effect in lowering the rate of sexual abuse. Indeed, what we have is an extremely useful controlled experiment in which one can compare the rates in these states with states that still have the SOL. It is thus disappointing that the author did not do this research, for it would allow us to test her assertion that the reform would help solve the problem of child sexual abuse. The fact that the public learned the identities of hitherto secret child abusers in California is interesting, but hardly suffices to address whether this resulted in a substantial reduction in sexual abuse among children in California, which is of course the real issue. (Moreover, the ever-increasing use of sex offender lists is itself problematic; see “Unjust and Ineffective,” THE ECONOMIST, August 6, 2009).

Hamilton also asserts that I “ignore” the support for her factual claim that “at least 25% of girls and 20% of boys are sexually abused” in this country. Here I can only reiterate my original concern, which she appears to have misunderstood. Of the five sources she cites for this assertion, only one (Frawley-O’Dea) supports her factual claim, and the others are either irrelevant to it (e.g. one discussing sexual abuse in India), or contradict it. The World Health Organization figures are 7 – 36 % of girls and 3 – 29% of boys worldwide; Freyd reports figures of 20% of women and 5 – 10 % of men worldwide. It hardly needs pointing out, I hope, that both of these undercut Hamilton’s assertion and Frawley-O’Dea’s as well, since the actual number of abuse cases might be as low as 7% of girls and 5% of boys. Hamilton dismisses these numbers as irrelevant, since they relate to the international community rather than the United States. But if so, why did she cite irrelevant data as support for her claims? Moreover, if Hamilton is right, then it would entail that child sexual [*624] abuse is far higher in the United States than the international average. But this seems quite unlikely, and Hamilton does not argue for this point (it is also contradicted by the fact that the figures for India are dramatically higher than the global average – some 76% of women, if these numbers are credible). Hence, her assertion is supported by only 1 of the 5 sources she cites (the one she says I ‘ignore’). Hamilton has selectively chosen as her source one that gives estimates that are substantially higher than the mainstream view. In any case, the main complaint in my review was that she failed to indicate to the reader that these figures are quite controversial, and that she has deliberately chosen the highest estimate rather than one in the middle. Of course, it remains puzzling that the author uses as sources estimates that tend to contradict her own figures or that are by her own admission irrelevant to her figures.

Hamilton also professes to be shocked that I cite an article from 1994 as a rebuttal to her book (I did not realize there is a 15-year statute of limitations on citations to scholarly articles!). She asserts that the false memory movement has “ground to a halt with the repudiation of its leaders in courtrooms around the country.” But this is sheer rhetorical bombast. She bases it on a single court case, TAUS v. LOFTUS, in which a leading critic of recovered memories was sued for invasion of privacy regarding her investigation of a purported case of recovered memory, the “Jane Doe” case. But there are several problems here. First, Hamilton falsely implies that there has been a broad trend in the “repudiation” of “leaders” of the movement, though she only cites a single purported such case (misleading the reader by using “see, e.g.” to falsely suggest there are many more such cases). Nor is it clear in what sense the TAUS case “repudiated” Loftus. What Hamilton does not reveal is that 20 of the 21 counts against Loftus were dismissed as a blatant attempt to interfere with free speech rights, and that Loftus settled the remaining count for a nominal sum in order to avoid the harassment of litigation. And it is far from clear that Loftus did anything wrong or unethical in her careful investigation of the Jane Doe case and her convincing demonstration that it provided no good evidence of “recovered memory” after all.

Even more significant, however, is Hamilton’s use of the deliberately vague term “repudiation” to misleadingly imply that the TAUS case in any way discredited the substance of the argument against the use of “recovered” memories in the courtroom. On this point, Hamilton clearly has not read Loftus’ article on the case, “Who Abused Jane Doe?” (SKEPTICAL INQUIRER, May/June 2002, pp. 24-32). Contrary to Hamilton, there is overwhelming evidence of the ease with which false memories can be implanted in suggestible people, especially children, and there is to date not a single documented case of a “recovered” memory of childhood sexual abuse; indeed, the Jane Doe case is still often cited as a definitive example of such a case, despite Loftus’ clear demonstration to the contrary. Lest there is any doubt about the possibility of convicting innocent people on the basis of implanted false memories in children, everyone should read the Martin Gardner article referenced in my original review, which remains the classic [*625] discussion of the problem of false memories. For example, he describes the case of Robert Kelly, owner of the Little Rascals day-care center in Edenton, North Carolina, who was convicted in 1992 on 99 counts of sex offenses and given 12 consecutive life sentences, the longest sentence in North Carolina history (fortunately, the Court of Appeals later overturned the sentences on grounds of legal errors by the prosecution). Gardner describes some of the “memories” of the children who were purportedly abused:

Some notion of the accuracy of these “memories” can be gained by one child's recalling that “Mr. Bob” had taken a group of children aboard a ship surrounded by sharks. He threw one of the girls in the ocean. Was she eaten by sharks? No, the boy replied. He had jumped into the water and rescued her! Children recalled seeing Mr. Bob kill babies with a pistol and take photos of employees engaging in sex. They testified to sodomy by Mr. Bob, and said he routinely shot children into outer space on rocket ships. To this day the children, now young adults, swear their revived memories are genuine. “We know. We were there,” they have said many times on TV talk-shows.

Lawyers are trained in the skills of zealous advocacy of their positions and are not expected to present objective or balanced presentations of the issues, given that there will always be an opposing advocate on the other side and a judge and jury to attempt to determine what is the unbiased truth of the case. It is thus legitimate for a lawyer to omit facts troublesome to one’s case and selectively choose evidence to support one’s position. But while such an approach is legitimate for the courtroom, when an attorney enters the public arena, the standards are higher than merely the rhetorical effectiveness of one’s advocacy. In her response, Ms. Hamilton defends her book (twice) on the grounds that it was written for a “general audience,” though it is unclear what relevance this has to my criticisms. But an effective democracy depends on a full and objective presentation of the issue. This is particularly so for a book that is explicitly aimed to influence legislators as well as public opinion on a matter of the utmost public importance.

REFERENCES:

Gardner, Martin. 1994. “Notes of a Fringe Watcher, The Tragedies of False Memories.” SKEPTICAL INQUIRER 18(5), 464-470.

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