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Taus v. Loftus

Why is this case important?

The primary goal of the Leadership Council is to advance the science of trauma and to promote the ethical application of this science to human welfare. To meet this goal, the LC offers amicus letters or briefs to courts in important cases that may affect the welfare of abuse victims or victims of interpersonal violence. One such case is Taus v. Loftus et al . Although this has been framed by the defendants as a lawsuit about scientific freedom and “repressed memories”, it is actually a suit about the conduct of researchers toward an abuse victim and the rights of human subjects.

Overview of the Case

The story of Jane Doe was first told by Dr. Corwin in 1997 in the journal Child Maltreatment. (see, Corwin, D. & Olafson, E. (1997). Videotaped discovery of a reportedly unrecallable memory of child sexual abuse: Comparison with a childhood interview taped 11 years before. Child Maltreatment, 2 (2), 91-112.) [full-text PDF]

The original article, along with commentaries by other scientists, are available in full-text PDF format::

 

Dr. Corwin had interviewed “Jane” as a young child and videotaped a session in which she disclosed abuse by her mother. Medical evidence supported the disclosure and the child was placed in the sole custody of her father. Her father later died and “Jane” was placed in a foster home. As a teenager, she no longer remembered the abuse and was considering reconnecting with her mother. However, first she wanted to know whether the abuse had really happened. “Jane” contacted Dr. Corwin and asked to see the videotape of herself as a child. When she went to view the tape, Dr. Corwin asked if he could videotape her watching it. She provided consent and he turned on the camera. However, before Dr. Corwin started playing the video of her disclosure, “Jane” spontaneously remembered the abuse and conveyed a level of detail that clearly corresponded to the specifics she had reported years earlier as a young child. After assurances of confidentiality, she gave Dr. Corwin permission to publish her remarkable case in the scientific literature.

At the time it was published, the case study of Jane Doe was but one of approximately 68 studies in the scientific literature documenting that people frequently forget and later remember traumatic events. However, because of the level of documentation, “Jane Doe” made an interesting case study. Several researchers who frequently acted as experts for people accused of child molesting, found the case worrisome as it ran contrary to their testimony in court cases. Elizabeth Loftus, PhD, an advisory board member of both the False Memory Syndrome Foundation and the National Center for Reason and Justice (advocacy groups that advocate for people accused of molesting children), and Melvin Guyer, PhD, decided to reinvestigate Jane Doe’s case. A private investigator was hired to determine Jane Doe’s true identity.
The measures used to reinvestigate her case are alleged by Taus to include misrepresentation, defamation, and invasion of privacy. For instance, Taus alleges that the defendants hired a private investigator to learn her true identity and that Loftus then began contacting family members to gather data about her without her knowledge or consent. Taus alleges that Loftus misrepresented herself to gain the cooperation of her foster mother. Taus claims that Loftus claimed misidentified herself as Dr. Corwin’s colleague and supervisor–someone she trusted. At the same time, Loftus apparently befriended Taus’ birth mother, who had lost custody due to physical and sexual abuse.

Loftus and Guyer later published an article in Skeptical Inquirer magazine suggesting that “Jane’s” original disclosure of abuse was false. The May/June 2002 and July/August 2002 issues of the Skeptical Inquirer,
a magazine published by the Committee for the Scientific Investigation of Claims of the Paranormal (CSICOP), included a two-part article, written by defendants Elizabeth Loftus and Melvin Guyer, entitled Who Abused Jane Doe?Ms

Taus (formerly “Jane Doe”) then filed a lawsuit against the Defendants claiming that personal information about her health and private life were obtained and published without her knowledge or consent, and that defamatory comments were made about her in public settings.
The Defendants countered by arguing that the “Jane Doe” case was of such extraordinary scientific significance that their conduct was justified in order to refute it. They filed a motion to dismiss the lawsuit saying that they did nothing wrong and that their behavior is protected under the First Amendment. In essence, the Defendants suggest that their right to free speech grants them the right to collect confidential data from a research subject and use that information in publications and public presentations without the subject’s consent.
In her Response to response to the Defendants’ motion to dismiss, Taus through her lawyer, claimed to have evidence to prove the following:
  1. Defendants undertook to avoid obtaining plaintiff’s consent to discuss her memory through David Corwin, M.D. in order to protect her privacy and anonymity and instead, set out to obtain personal details about her life and history; [i.e., Defendants failed to obtain consent from Taus prior to obtaining personal details about her life and history]
  2. Defendants misrepresented their intentions and credentials to interview plaintiff’s foster-mother, Margie Cantrell, who permitted them to tape record the conversation in reliance on the representations
  3. Defendants knowingly published facts concerning the confidential ethics complaint filed by Plaintiff with the University of Washington
  4. Defendants obtained and published information from a 1983 psychological evaluation of Plaintiff and her family members, quoted from it in their article and then filed the evaluation in this proceeding
  5. Defendants obtained a Child Protective Services report concerning Plaintiff and revealed its contents in the article
  6. Appellant Loftus intruded into the difficult relationship between Plaintiff and her biological mother and after the articles were published, took credit for briefly reuniting the two
  7. Appellant Loftus was warned by her colleagues that her techniques were contrary to the ethical principles of a psychologist and she should not publish her findings
  8. Defendants placed Plaintiff in the center of a public debate they created about whether their respective institutions had victimized them through appellant Tavris’s account of their institutional struggles and the ethics complaint
  9. The Attorney General for the State of Washington informed Plaintiff that all records related to her ethics complaint were to remain “strictly confidential”
  10. Appellant Shapiro was provided a list of names connected with the child custody proceeding by Loftus and he then obtained “voluminous records” related to a juvenile proceeding involving Plaintiff in Solano County
  11. Appellant Loftus has informed the media that she has medical records and depositions from the child custody proceeding
  12. Appellant Loftus was informed by David Corwin, M.D. that her intrusion into plaintiff’s life was causing emotional harm and that doing so without plaintiff’s consent was “not right”
  13. Appellant Loftus disclosed plaintiff’s initials during questioning in an unrelated litigation case in which she was acting as an expert witness
  14. At a conference of the False Memory Syndrome Foundation, appellant Loftus informed the audience that she would pass on expressions of support to plaintiff’s biological mother and then stated that Plaintiff was “engaged in destructive behavior” and “representing our country in the Navy.”
  15. Excerpted from Taus v. Loftus et al., Respondents brief filed in the Court of Appeal of California, First Appellate District, Division Two (August 4, 2004)
Defendants responded by filing special motions to strike the complaint pursuant to California’s anti-SLAPP statute (Code Civ. Proc., § 425.16),1 asserting that the complaint sought to impose liability upon them for actions that were undertaken in furtherance of their constitutional right of free speech. The trial court denied the motions in large part, concluding that the bulk of plaintiff’s claims should be permitted to go forward. The trial court found that Plaintiff Taus raised genuine issues and provided evidence that tends to support her claims. Thus the Defendant’s motion for summary judgment (i.e., the defendants’ request for the judge to dismiss the case before it is heard based on the assertion that the plaintiff has raised no genuine issue to be tried) was denied.

The Defendants appealed this decision to the California Court of Appeal. On April 1, 2005, the Court of Appeal held that most of the claims set forth in the complaint should be dismissed under the anti-SLAPP statute, but also concluded that the suit could proceed with regard to several aspects of defendants’ conduct that were challenged in the complaint.it held that the action could go forward with respect to

  1.  A cause of action for improper public disclosure of private facts based upon Loftus’s alleged statement at the October 2002 professional conference and Loftus’s disclosure of plaintiff’s initials during a deposition in an unrelated case, 
  2. A cause of action for improper intrusion into private matters based upon Loftus’s alleged misrepresentations to plaintiff’s foster mother and upon defendants’ alleged intrusion into confidential juvenile court files, and
  3. A cause of action for defamation based upon Loftus’s alleged statement at the October 2002 professional conference. (Decision of the The Court of Appeal of the State of California, First Appellate District, Division Two, April 1, 2005).
The Defendants then appealed to the California Supreme Court. On June 22, 2005 the high court agreed to consider the Defendants’ request for summary judgment. The Court granted review to consider whether the Court of Appeal correctly determined that plaintiff’s suit could proceed as to four points challenged by defendants.
On February 26, 2007, the California Supreme Court dismissed three of the four claims against Loftus. However, the high Court refused to dismiss a central assertion of Taus’s case against Loftus. The Supreme Court concluded that “the Court of Appeal correctly determined that plaintiff’s action for improper intrusion into private matters could proceed based upon the claim that Loftus obtained personal and sensitive information regarding plaintiff from [Taus’s] former foster mother by misrepresenting herself as an associate of Corwin, a psychiatrist with whom plaintiff had a close professional relationship. (see California Supreme Court’s decision)
On August 28, 2007, before the case had an opportunity to go to trial, Taus and Loftus reached an out of court settlement. (see, Settlement of Taus’s suit against Loftus.

Amicus Letters Submitted to the California Supreme Court.

Letters in support of the Plaintiff (i.e., Taus, previously known as "Jane Doe")

  • The Leadership Council

This letter expresses concern that if the Supreme Court grants the Defendants’ motion to dismiss the suit, the decision will serve as a green light for scientists to ignore research protocols and ethical guidelines established by federal and state law, and by state and national professional organizations. It may also make people less willing to engage in research, particularly on sensitive issues.

Letters in support of the Defendants (i.e., Loftus, Guyer, Skeptical Inquirer , etc.)

  • The False Memory Syndrome Foundation (advocates for parents accused of child sexual abuse by their children)
  • The Center for Reason nd Justice (advocates for those accused of sex offenses against children and adolescents)
  • Dr. Richard McNally
  • Dr. Christopher Frueh, Associate Professor and Director, Division of Psychiatry, Medical University of South Carolina. Signed by 46 other behavioral health professionals.
    This letter suggests that that the lawsuit against Loftus et al. “represents a pernicious legal strategy” that “could set a dangerous precedent that could serve to further stifle scientific inquiry into other contentious topics.”

Information on Previous Ethics Complaints or Ethical Issues That Have Been Raised Regarding Loftus' Work

  • Jennifer Hoult – Remembering Dangerously
    http://www.rememberingdangerously.com
    Ms. Hoult, an attorney, alleges that Loftus used distortion and misstatement of fact to seriously misrepresent Hoult’s history of abuse, and the facts of her legal case against her perpetrator. Hoult won the case and the judgment was upheld on appeal. Hoult shows how Loftus later misstated facts about the case in such a way as to cast doubt on the veracity of Hoult’s allegations.
  • Calof, D. L. Notes from the controversy: Ethics complaints filed against prominent FMSF board member. APA declines to investigate. Treating Abuse Today, 5 (6) & 6(1), Nov/Dec 1995 & Jan/Feb 1996, 71-73.
    According to this article, Loftus had been an active member of the American Psychological Association (APA) since 1973.
    She resigned January 16, 1996, shortly after the filing of two ethics complaints against her. Although she denies this was the reason for her sudden resignation, two different abuse survivors had recently submitted ethics complaints against Loftus to the APA based on their contention that Loftus had seriously misrepresented their cases in print. Both women had brought successful civil suits against fathers for child sexual abuse based on delayed memories. At their trials, both victims presented corroborative evidence that met the requirements for judicial proof of their allegations. However, they later discovered published articles or books in which Loftus distorted the facts of their cases to make it appear that their memories were false. Because of Loftus’ resignation, the APA said it no longer had any authority to pursue the ethics complaints. (available on-line at: http://www.astraeasweb.net/politics/loftus.html )
  • Crook, L. S., & Dean, M. (1999). “Lost in a shopping mall”–A breach of professional ethics. Ethics & Behavior , 9(1), 39-50.
  • Paper by nationally recognized ethicist Ken Pope, PhD, examining the scientific, ethical, and legal issues raised in the book The Myth of Repressed Memory by Elizabeth Loftus and Katherine Ketcham.: http://kspope.com/memory/lofrev3.php

Newspaper articles about Taus v. Loftus et al.

June 21, 2005: Maura Dolan. Memory, Pain and the Truth: A leading psychologist long skeptical about 'repressed' recollections challenged a much-cited sex abuse claim. Scorn and litigation ensued. Los Angeles Times. [no longer available on LA Times site, full text available here

June 23, 2005: Maura Dolan. High Court to Review Privacy Rights: Panel will rule in repressed memory case in which a UC Irvine scholar revealed information about the subject of a study. Los Angeles Times.

The California Supreme Court voted without dissent in a closed session to accept an appeal by UC Irvine psychology professor Elizabeth F. Loftus, who was sued after publishing what she called an “expose” of a case study in which a 17-year-old purportedly recalled a memory of her mother sexually molesting her 11 years earlier. Two lower courts had ruled that the lawsuit could go to trial.

Loftus is quoted as saying, “I also am exceedingly grateful to the scientists, clinical researchers and scholars who wrote to the court and joined me in my concerns about a frivolous lawsuit that carries the potential to stifle the free exchange of information.” Joy Silberg, PhD, is also interviewed. She is quoted as saying, “Science is in jeopardy if the public is not protected by ethics and standards…. There is no individual who is above the law, whether they be a very well-respected scientist or the president or a garbage collector.” (see correction sent by Dr. Silberg )

Kenneth Ofgang. 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. Metropolitan News-Enterprise (Los Angeles), June 23, 2005. http://www.metnews.com/

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.

Press release (2/26/07) by JULIAN HUBBARD, Esq. Attorney for Respondent NICOLE TAUS, RE: Supreme Court Decision in Taus v. Loftus

In our view, today’s Supreme Court decision is a victory for people whose privacy is invaded by unscrupulous means, even when those people assert the constitutional protections afforded the Fourth Estate. We believe that researchers who put aside the ethics of their professions by engaging in advocacy journalism are put on notice now that they cannot afford to engage in shadowy misconduct to meet their own agendas and objectives.

Maura Dolan, Ruling May Constrain Researchers, Los Angeles Times, February 27, 2007

http://www.latimes.com/news/local/la-me-speech27feb27,1,4612801.story?ctrack=1&cset=true
State high court says journalists and scholars can be held liable for privacy invasion if they misrepresent themselves to obtain private information.
The LC’s response to this article

Supreme Court OKs privacy suit against a UC psychologist: *Research subject says she was duped. By David Kravets, ASSOCIATED PRESS, February 27, 2007

SAN FRANCISCO Researchers could be liable for damages if they obtain private information through false pretenses, the California Supreme Court ruled yesterday.

Interview Methods Face Trial: California high court allows suit claiming misrepresentation to proceed. by Stephanie Francis Ward, ABA (American Bar Association) Journal, March 2, 2007

http://www.abanet.org/journal/redesign/m5reserch.html
Misleading someone’s friends or family to get personal information can violate privacy laws, the California Supreme Court ruled on Monday in a case that has many news media groups and research organizations concerned about how the ruling may affect their occupations. Taus v. Loftus , No. S133805 (Feb. 26).

Research on Dissociative Amnesia and Recovered Memories

Loftus' Viewpoint

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