Child and Sexual Abuse Repressed Memories-Real or Imagined?
Staying Clear of Unethical Behavior

January/February 1994
Updated September 1998

Richard S. Leslie, J.D.
Of Counsel

Let me first answer the question. Some repressed memories are real, some memories are incorrectly remembered and some are imagined. Some therapists contribute to the problem by, among other things, inappropriately "helping" patients to remember sexual and other abuse, sometimes satanic ritual abuse, when it may never have happened. And, as well, some allegations against therapists for such behavior are false. Each case presents different facts and circumstances that can only be resolved after thorough investigation and often, legal proceedings. Therapists must take great care to protect themselves from false allegations and to make sure that their practices and procedures are not conducive to inappropriately encouraging false memories of child abuse. This article will explore some of the legal and ethical considerations involved in handling these matters.

Some have theorized that lawsuits have proliferated because many states, including California, have liberalized statute of limitation laws so that adults may sue for childhood sexual abuse years after reaching adulthood. The assertion by some is that these lawsuits, brought many years following the alleged abuse, are brought by people who are, for one reason or another, seeking unjust enrichment for acts that never occurred. The other perspective is that these statutes have enabled people, who were in fact abused as children, to enjoy a remedy for the damage caused to them by parents, relatives, ministers, teachers or others. The truth is often hard to determine, and again, can only be approached on a case by case basis. Abusers will, of course, deny wrong-doing and place blame elsewhere, and falsely charged or accused persons have every right to protest and to seek legal and other remedies.

One of the more common lawsuits is when the therapist is sued by persons who claim to have been falsely accused of child abuse and allege that the therapist helped or encouraged the patient to remember abuse that never occurred. Complaints of this nature are also filed with the licensing board or a professional association’s ethics committee. Another common lawsuit or complaint is initiated by the patient, who alleges that his/her prior statements and memories regarding child abuse were based upon the therapist’s improper actions—whether intentional or negligent, and that such abuse never occurred. Complaints of this nature are also made to licensing boards and ethics committees.

Because the intense controversies around the subject are likely to continue and because of the seriousness of the subject matter, it is important for therapists to be conscious of what they are doing, and to be aware of how they can become vulnerable if caught up in a complaint as described above. This article will explore areas of vulnerability and will make suggestions intended to help therapists avoid liability for negligent or otherwise inappropriate conduct.

The Use of Hypnosis

One must exercise caution when utilizing hypnosis in "repressed memory" and related cases because of the power of suggestion under hypnosis. Therapists who are accused of using hypnosis improperly to elicit memories will have to demonstrate that they have acted appropriately—i.e. according to the standards of a reasonably prudent practitioner of like licensure under similar circumstances. Therapists must first determine whether they possess the necessary education, training and experience to use hypnosis. They must then determine whether they possess the skills necessary to use hypnosis in "repressed" or "delayed" memory cases.

In a thorough investigation or cross-examination of the therapist, he/she will be asked to specifically document (by date, time, place and title) the education, training and experience that qualifies the therapist to use hypnosis. California law no longer requires MFCCs to obtain a certificate in hypnosis from the BBS prior to using the technique. It should be noted that the old requirements called for 40 hours of approved hypnosis education (no less than 10 of those hours to be in a clinical setting) and 30 hours of supervised clinical experience. Therapists should thus be prepared to clearly articulate and demonstrate their preparation for utilizing hypnosis. Both the licensing law (in its unprofessional conduct section) and the CAMFT Ethical Standards require therapists to act within the scope of their competence, as established by their education, training and experience.

Unknowledgeable therapists may use hypnosis in a manner that leads to the exclusion of the patient’s testimony in a criminal proceeding against an alleged perpetrator. Such negligent action on the part of the therapist could lead to liability, and of course, could damage or ruin the lawful and appropriate criminal prosecution of a child abuser. Section 795 of California’s Evidence Code is the governing statute regarding the admissibility of testimony in a criminal proceeding where hypnosis has been utilized.

The law makes clear that the testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witnesses’ testimony. In order for the testimony to be admissible, however, all of the following conditions must be met:

a) the testimony is limited to those matters which the witness recalled and related prior to the hypnosis
b) the substance of the prehypnotic memory was preserved in written, audiotape, or video tape form prior to the hypnosis

c) The hypnosis was conducted in accordance with all of the following procedures:

i) the subject (witness) gave informed consent to the hypnosis

ii) a written record was made prior to hypnosis documenting the subject’s description of the event, and information which was provided to the hypnotist (therapist) concerning the subject matter of the hypnosis

iii) the hypnosis session, including the pre- and post-hypnosis interviews, was videotape recorded for subsequent review

iv) the hypnosis was performed by an M.D., psychologist, licensed clinical social worker or a licensed MFCC experienced in the use of hypnosis, and independent of and not in the presence of law enforcement, the prosecution, or the defense.

d) Prior to the admission of testimony, the court holds a hearing at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness’ prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness’ prehypnosis recollection.

A careful review of this law reveals that the courts must carefully scrutinize testimony where hypnosis has been utilized. In fact, if hypnosis is not used properly (i.e., in accordance with the statute), the prehypnotic memories will not be able to be testified to by the witness! Memories directly elicited from the hypnosis (and not previously called) will not generally be admissible into evidence. The courts generally believe that hypnosis is not a reliable truth-determining technique.

Video/Audio Recording

Whether used in hypnosis cases or otherwise, video/audio recording of sessions can be useful in establishing the therapist’s appropriate conduct. It captures the actual transactions and communications between therapist and patient, and constitutes the best evidence of what occurred in therapy. No recording of sessions, or course, should be done without the patient’s prior signed authorization evidencing informed consent. While recording is useful in a number of respects, it also has its drawbacks.

The patient or therapist may become nervous, uncomfortable or distracted. The tape can give opponents an opportunity to focus on the interviewing techniques of the therapist, and to assert that the therapist was inappropriately leading or supportive. Even statements like "I know it’s difficult for you, but you’re doing good," can be misconstrued. Additionally, if the therapist is in fact negligent (e.g., asks leading and suggestive questions), the recording can be used against the therapist. One must not only be able to perform competently, but must be confident of his/her abilities.

Record Keeping

As I have written in prior issues of The California Therapist, good record keeping is essential when treating patients for mental or emotional conditions or disorders. Failure to keep good and thorough records in these kinds of cases (and others too) can lead to criticism and liability for the therapist. When a patient is describing prior abuse, the details of such description should be carefully noted. The records should indicate how and why the information arose, and who first raised the issue. It is also important to take a history and to obtain records from prior health care providers and health facilities.


As with any particularly complex or controversial case, it is important to consult with more knowledgeable therapists or experts. Therapists invite criticism when they diagnose too quickly, particularly with a multiple personality disorder, and conclude that the patient has been the victim, for example, of satanic ritual abuse.

Sometimes the therapist’s own personal background or belief system influences the process inappropriately. In fact, some judges will allow, as a part of the cross-examination of the therapist, the attorney to explore and discover personal information about the therapist’s background. The attorney is usually seeking to find out if the therapist himself/herself has been the victim of satanic ritual or child abuse. Consultation with an independent and reputable practitioner can be especially useful in these cases. Corroboration of one’s diagnosis by another can be extremely valuable evidence should such allegations be made. Conversely, a failure by the consultant to corroborate a therapist’s diagnosis should cause the treating therapist to proceed cautiously and to re-evaluate his/her thinking.

Avoid Untraditional Techniques

Each therapist has his/her own opinions and belief systems as to what works in therapy. In deciding lawsuits or complaints, the courts and the BBSE tend to adhere to the well-accepted norms of the profession, as established by expert testimony. The further away from traditional psychotherapy one moves, the more risks one takes. Treatment techniques involving channeling, spirit guides, exorcism, balancing of energy fields, or the use of crystals should obviously be avoided. The use of hypnotic age regression therapy is considered by many to be unreliable and dangerous. Some patients have remembered abduction by aliens on UFOs after such treatment.

A therapist who uses any other non-standard technique should be able to justify the use of such technique by expert witnesses and by reference to clinical literature. Anyone can call himself/herself an "expert," and anyone can write a book or clinical article. The sufficiency of the evidence presented will be judged by the quality and acceptability of the evidence presented on behalf of the accused therapist.

Read the Literature

One of the questions that attorneys like to ask in cross-examining therapists is "What books have you read, and what research have you done, to update and inform yourself about the current state of knowledge in the area of ____?" Therapists who are doing work in the area of "repressed memory" and related cases would be well-advised to read the clinical literature available. Brandt Caudill, an attorney in Orange County who defends therapists who face legal or administrative action, recommends that therapists read, at a minimum, the article by Elizabeth F. Loftus, Ph.D., in the May 1993 issue of The American Psychologist entitled "The Reality of Repressed Memories." That article also contains a list of references that are relevant to this subject matter.

According to Mark L. Ellis, Senior Attorney with the National Center for Prosecution of Child Abuse, an article by Gary Milton and Susan Limber, which appeared in the September, 1989 issue of The American Psychologist, is also quite helpful. This article, "Psychologists’ Involvement in Cases of Child Maltreatment —Limits of Role and Expertise" discusses the ethical and legal impropriety of expert testimony which goes beyond the limits of psychological expertise and involves opinions which are unjustified by specialized knowledge. He also likes an article entitled "Expert Testimony in Child Sexual Abuse Litigation," written by John E. B. Myers, et. al., which appeared in the Nebraska Law Review, Vol. 68, Nos. 1 and 2, 1989. Reprints can be ordered for $15 plus $4.25 for shipping and handling from the American Professional Society on Abuse of Children, 332 S. Michigan, Suite 1600, Chicago, IL 60604, (312) 554-0166. This organization also publishes a quarterly newsletter regarding child abuse issues (called The Advisor) but it is only available to members.

Avoiding Problematic Interviewing Techniques

This is an extremely important determinant of therapist liability. Therapists must take care to avoid asking leading questions or to make suggestions that patients may have been abused when there exists no evidence of such abuse. Therapists are particularly vulnerable, and must therefore exercise great care, when treating patients who have never alleged abuse before the patients were in therapy. It is important to be conscious that a patient’s memory may be contaminated by television shows (some of which are thoughtful discussions of the subject matter and some of which approach sensationalism) or newspaper or magazine articles (there is an obvious distinction between a well-recognized professional journal and a tabloid’s exposé), and therapists should therefore take care not to conclusively presume abuse without careful exploration and questioning.

Therapists should avoid "pushing" clients to remember abuse. They should be cognizant that certain books and support groups may induce memories inappropriately, sometimes leading patients to over-generalize from limited information. Use of anatomically correct dolls with children is generally accepted, but therapists must be sure that they do not use the dolls in a suggestive manner. Such dolls are a tool to help children demonstrate what may have happened, but sole reliance on the child’s actions with a doll to make a conclusive diagnosis is somewhat dangerous.

In thinking about approaches to interviewing clients, it is important to remember that the therapist’s duty is to be objective. Therapists should not be anxious to confirm abuse, but should also be looking for evidence that demonstrates that no abuse occurred. There are too many reports of cases where therapists have concluded that child abuse must have occurred if there is no other reasonable explanation for a client’s depression, obesity or other condition. It is not unknown for some therapists to inform patients very early in therapy that he/she was probably the victim of satanic ritual or sexual abuse, in the absence of any clear evidence. The existence of some symptoms, which could mean a variety of things, sometimes inappropriately gets translated by the therapist into conclusions of abuse.

Some have suggested that interviewing protocols should be established to assist in the proper assessment of child abuse, but no such development has occurred. Many feel that restrictive interview guidelines would be impractical and that they would improperly stifle different interview styles and philosophies. It is important that therapists avoid questions or statements like a) have you ever considered the possibility that you were abused? b) there must be something else in your background that accounts for your condition—think hard; c) I’ve had similar dreams to yours and I was abused by my father; d) sounds like you were abused as a child—tell me about it; or e) did your father or someone else touch you inappropriately? In other words, care must be taken not to make suggestions by the question itself. The information should come from the patient without prompting.


Therapists are in a precarious position when diagnosing and treating repressed memory and other similar cases. Because this area of practice is receiving significant public attention, therapists are under a microscope. Many who are accused of child abuse allege that the untrained and unskilled therapist was the primary cause of the false allegations. Some of these claims are probably justified. Others are simply the assertions of abusers who seek to blame others and hide their guilt. Ferreting out the truth is often difficult and sometimes impossible. Patients may really remember past abuse, or may first remember and then deny.

In this uncertain environment, therapists must take precautions to protect themselves from criticism and liability. For those who do work in this area, it is critical that they be prepared and knowledgeable. This article will hopefully assist therapists to act responsibly and to maintain objectivity. Some therapists see their roles as advocates for their patients. Such a view of their role is dangerous. Attorneys are advocates and seek to win. Therapists need to be objective and need to concentrate on providing appropriate treatment without any predisposition to come to any particular conclusion.

I wish to extend my thanks to Attorney Brandt Caudill, an attorney in Tustin, California (with the law firm of Callahan, McCune and Willis) who has been involved in a variety of these kinds of cases brought against therapists. He was kind enough to provide me with some of his thoughts regarding the subject matter and offered suggestions intended to protect therapists from liability. His ideas and thoughts have been incorporated into this article.

This article appeared in the January/February 1994 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such an article as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained in this article.

Updated 9/98

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