Thursday, June 23, 2005
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S.C. to Decide Whether Abuse-Study Subject May Sue Professor
Woman Claims Her Privacy Was Invaded, Prominent Psychologist Teaching at UCI Says Suit Is SLAPP
By KENNETH OFGANG, Staff Writer/Appellate Courts
The state Supreme Court agreed to decide yesterday whether a woman who was the subject of a child abuse study 20 years ago may sue a prominent psychologist who has criticized the study and questioned the accuracy of the plaintiff’s account of what transpired.
The justices, at their weekly conference in San Francisco, voted 6-1 to review the ruling of the First District Court of Appeal in Taus v. Loftus, A104689. Justice Paul Haerle’s April 1 opinion for Div. Two was unpublished.
Only Justice Marvin Baxter voted to allow the decision of the Court of Appeal, which said the plaintiff could sue for invasion of privacy and defamation, to stand.
The defendant, Dr. Elizabeth Loftus, is a professor at UC Irvine. Her work over the past three decades, described as both groundbreaking and controversial, has largely focused on the accuracy of memory.
Repressed Memory
Loftus has testified as an expert in more than 250 cases. While her early work dealt largely with the inaccuracy of eyewitness identifications, in more recent years she has questioned the claims of many of her colleagues to be able to revive patients’ long-suppressed memories of traumatic events.
The professor last year told a reporter that she bought a gun and took up target shooting as a result of death threats related to the publication of her 1994 book The Myth of Repressed Memory.
The suit the high court agreed to consider concerns articles published between May 1997 and August 2002.
The plaintiff, Nicole Taus, is now an officer in the Navy. But as a child, she was the subject of a child custody battle in which her father—who won full custody—claimed that Nicole had been abused, sexually and otherwise, by her mother.
In May 1997, an article was published in Child Maltreatment, the journal of the American Professional Society on the Abuse of Children.
One of the authors, Dr. David Corwin, said that a 6-year-old then involved in a custody dispute—she was identified as Jane Doe in the article—had reported to him in 1984 that she was abused by her mother. She subsequently lost all memory of that disclosure, Corwin said, and spontaneously recovered the memory during an interview 11 years later.
Corwin had concluded, and testified, that Jane Doe was abused by her mother and that the mother’s allegations that her father had abused Jane and coerced her into accusing her mother were false. In 1995, when Jane was 17 years old, she agreed to be re-interviewed by Corwin and to allow him to use the 1984 interview tapes for “professional education.”
Corwin and his co-author insisted that Jane Doe had recovered her memories of the earlier abuse and that while there were possible inconsistencies between what she said in 1984 and what she recalled 11 years later, the “core recollection” was consistent with the original statements.
Skepticism Expressed
In 2002, however, Loftus and a colleague, Dr. Melvin Guyer of the University of Michigan, authored a two-part article that appeared in the Skeptical Inquirer, a magazine published by the Committee for the Scientific Investigation of the Claims of the Paranormal.
Loftus and Guyer titled their article Who Abused Jane Doe? The Hazards of the Single Case History . Based in part on interview with key players in the events ó including Jane Doe’s biological mother and her stepmother, who Loftus said probably played a role in the alleged memory recovery—the authors concluded that the abuse had never occurred, and that the memories were entirely false.
In 2003, Taus sued Loftus, Guyer and others, making public for the first time the fact that she was the Jane Doe referred to in the earlier articles, along with the identities of her parents and other information about herself. She accused Loftus of infliction of emotional distress, invasion of privacy, fraud—for allegedly misrepresenting herself in order to obtain private information about the plaintiff—and defamation, for allegedly calling Taus’ mental health and fitness for military duty into question, not only in the Skeptical Inquirer but also in subsequent public statements.
The defendants moved to strike Taus’ claims under the anti-SLAPP statute. With respect to Loftus, Solano Superior Court Judge James Moelk struck the fraud claim but allowed the causes of action for infliction of emotional distress, invasion of privacy, and defamation to stand.
The Court of Appeal affirmed in part and reversed in part. It struck the claim for infliction of emotional distress, but said Taus was sufficiently likely to prove invasion of privacy and defamation to survive the anti-SLAPP motion.
Haerle, writing for the panel, said Loftus’ article and related public statements were protected to the extent they related to the public controversy generated by the Corwin article. But Taus has otherwise valid claims, the justice concluded, based on statements made by Loftus that Haerle said were neither newsworthy nor privileged.
The justice explained:
“For example, there is evidence in the record that Loftus made the following statement at a seminar: ëJane Doe engaged in destructive behavior that I cannot reveal on advice of my attorney. Jane is in the Navy representing our country.’ There is also evidence that Loftus revealed the first and last initial of Taus’s real name during a deposition in an unrelated court action. These comments ...do not relate in any way to the validity of the Jane Doe study, the repressed memory debate or to any other matter of legitimate public interest. They are clues as to the true identity of Jane Doe and, under the circumstances, a reasonable jury could find that disclosing this information was both offensive and objectionable.”
Copyright 2005, Metropolitan News Company