|
Articles
on Fells Acres, Massachusets, ritual abuse scandal | Michael Cardamone |
Wenatchee | Bakersfield | Saskatoon
| Adriaan Mak's case | Elizabeth Loftus | Coverage
of Klassen/Kvello civil trial | Claudette
Grieb | Phil Bourgelais
| Alain Andre
The Bourgelais case is important,
because it is another attempt by true believers in the validity
of repressed and recovered memories of childhood sexual abuse
to test the validity of the Hungerford decision in New Hampshire
which disallowed cases based on repressed memories
unless certain criteria were met.--Adriaan
Mak
Phil Bourgelais
Repressed memories rejected
By Liz Chretien , newsletter@seacoastonline.com
, April, 2005
BRENTWOOD - For Rhianna Light,
it's over.
Rockingham County Superior
Court Judge Tina Nadeau recently ruled that Light's father, Phillip
Bourgelais of Exeter, will not stand trial for allegedly sexually
abusing his daughter between the ages of 6 and 7 based on her
recovered memories. Light, now 18, claims that she began recalling
suppressed memories of sexual abuse in 2001, first only in fragments,
and later in full memories.
The court's decision was handed
down April 5 following an evidentiary hearing that began last
summer and concluded, after numerous continuations, on March
10.
"After a six-day evidentiary
hearing during which the court considered expert testimony, the
state's motion is denied and the court precludes the state from
introducing the victim's testimony," the court order stated.
A New Hampshire state law,
known as the Hungerford Law, prevents repressed and recovered
memories from being admitted in court unless eight criteria are
met. Four of the criteria concern the reliability of the science,
and four are specific to the individual whose memories are in
question - having to do with the age of the accuser when the
alleged abuse took place, specific circumstances surrounding
the abuse and the recovery process of the memories.
The court order stated, "The
memories in this case do not rise to such a level that they overcome
the divisive state of the scientific debates on the issue."
The court went on to cite five
reasons for its decision: the fact that Light was "engaged
in psychological counseling consistently from the time she was
4 years old through the present," the fact that the disclosures
were made during a "heated custody battle," Light's
age at the time the events allegedly occurred, the fact that
the assistant county attorney requested Light attempt to retrieve
more-specific memories of abuse, and the fact that "the
court can find no corroboration for the alleged abuse."
The judge's ruling went on
to explain that "the court must apply the standard articulated
in Hungerford. In so doing, the court cannot conclude that the
phenomenon of repressed memory recovery has yet been scientifically
accepted, ... nor can the court find sufficient indicia of reliability
present in the particular memories here to allow their admission
into evidence.
"The court does not mean
to suggest that Rhianna has fabricated the memories of the abuse,"
the order continued. "On the contrary, it is apparent that
she genuinely believes the abuse occurred. Rather ... based on
the law and evidence, the reliability of memory retrieval has
not been sufficiently established to allow the introduction of
Rhianna's memories here."
In a prepared statement, Light
said: "It's hard to say how I feel about it. There are so
many different emotions. Am I hurt? Yes. Angry? Yes. Sad? Yes.
Confused? Absolutely. All I can say is that I took it as far
as I could. I didn't give up or give in, neither did my friends
and family who stood by me the whole way through. I am very disappointed
in the ruling of this case; however, I do realize that the judge
reviewed all of the facts and evidence, and unfortunately there
just wasn't enough to corroborate my memories. A case like mine
is much harder to prove then a case involving DNA and contusions."
Andrew Cotrupi of Hampton,
Bourgelais' attorney, said his client is pleased with the decision.
"It's the right decision," he said. "This process
bankrupted my client and ruined his relationship with his daughter,
so I wouldn't classify it as a great victory. But it's the right
decision."
Light disagrees. "I remain
where I stood when all of this began, which is that I know the
truth," she said. "I know what happened to me, and
so does Phillip Bourgelais. From the beginning, I voluntarily
offered to take a polygraph test. Phil had the chance three times
and refused all three."
Nevertheless, said Light, the
time has come to move forward. "I have no choice now but
to move on with my life and try to put this all behind me. But
what was done to me will always be in the back of my mind,"
she said. "I hope that I have opened doors for others like
me to come forward."
"This is a regional signal
that repressed memories are not valid," Cotrupi said. "Every
court in this area has agreed on this. Still, it requires parents
and grandparents to dip into retirement accounts to pay for the
experts," he said. "The state can outspend you, but
it still can't make them right."
County Attorney Jim Reams was
not available for comment.
Repressed memories rejected
By Liz Chretien , newsletter@seacoastonline.com,
April 19, 2005
BRENTWOOD - For Rhianna Light,
it's over.
Rockingham County Superior
Court Judge Tina Nadeau recently ruled that Light's father, Phillip
Bourgelais of Exeter, will not stand trial for allegedly sexually
abusing his daughter between the ages of 6 and 7 based on her
recovered memories. Light, now 18, claims that she began recalling
suppressed memories of sexual abuse in 2001, first only in fragments,
and later in full memories.
The court's decision was handed
down April 5 following an evidentiary hearing that began last
summer and concluded, after numerous continuations, on March
10.
"After a six-day evidentiary
hearing during which the court considered expert testimony, the
state's motion is denied and the court precludes the state from
introducing the victim's testimony," the court order stated.
A New Hampshire state law,
known as the Hungerford Law, prevents repressed and recovered
memories from being admitted in court unless eight criteria are
met. Four of the criteria concern the reliability of the science,
and four are specific to the individual whose memories are in
question - having to do with the age of the accuser when the
alleged abuse took place, specific circumstances surrounding
the abuse and the recovery process of the memories.
The court order stated, "The
memories in this case do not rise to such a level that they overcome
the divisive state of the scientific debates on the issue."
The court went on to cite five
reasons for its decision: the fact that Light was "engaged
in psychological counseling consistently from the time she was
4 years old through the present," the fact that the disclosures
were made during a "heated custody battle," Light's
age at the time the events allegedly occurred, the fact that
the assistant county attorney requested Light attempt to retrieve
more-specific memories of abuse, and the fact that "the
court can find no corroboration for the alleged abuse."
The judge's ruling went on
to explain that "the court must apply the standard articulated
in Hungerford. In so doing, the court cannot conclude that the
phenomenon of repressed memory recovery has yet been scientifically
accepted, ... nor can the court find sufficient indicia of reliability
present in the particular memories here to allow their admission
into evidence.
"The court does not mean
to suggest that Rhianna has fabricated the memories of the abuse,"
the order continued. "On the contrary, it is apparent that
she genuinely believes the abuse occurred. Rather ... based on
the law and evidence, the reliability of memory retrieval has
not been sufficiently established to allow the introduction of
Rhianna's memories here."
In a prepared statement, Light
said: "It's hard to say how I feel about it. There are so
many different emotions. Am I hurt? Yes. Angry? Yes. Sad? Yes.
Confused? Absolutely. All I can say is that I took it as far
as I could. I didn't give up or give in, neither did my friends
and family who stood by me the whole way through. I am very disappointed
in the ruling of this case; however, I do realize that the judge
reviewed all of the facts and evidence, and unfortunately there
just wasn't enough to corroborate my memories. A case like mine
is much harder to prove then a case involving DNA and contusions."
Andrew Cotrupi of Hampton,
Bourgelais' attorney, said his client is pleased with the decision.
"It's the right decision," he said. "This process
bankrupted my client and ruined his relationship with his daughter,
so I wouldn't classify it as a great victory. But it's the right
decision."
Light disagrees. "I remain
where I stood when all of this began, which is that I know the
truth," she said. "I know what happened to me, and
so does Phillip Bourgelais. From the beginning, I voluntarily
offered to take a polygraph test. Phil had the chance three times
and refused all three."
Nevertheless, said Light, the
time has come to move forward. "I have no choice now but
to move on with my life and try to put this all behind me. But
what was done to me will always be in the back of my mind,"
she said. "I hope that I have opened doors for others like
me to come forward."
"This is a regional signal
that repressed memories are not valid," Cotrupi said. "Every
court in this area has agreed on this. Still, it requires parents
and grandparents to dip into retirement accounts to pay for the
experts," he said. "The state can outspend you, but
it still can't make them right."
County Attorney Jim Reams was
not available for comment.
Judge to decide if repressed
memory case goes to trial
By Liz Chretien, The Exeter
News-Letter, Mar-15-05
Rhianna Light, backed by her mother Stacey, was
at the center of a hearing that concluded last
week concerning repressed memories of alleged sexual abuse
by her father. Photo by Jay Reiter
BRENTWOOD - The evidentiary
hearing to determine whether Exeter resident Phillip Bourgelais
will go to trial for allegedly sexually abusing his daughter
Rhianna Light between the ages of 6 and 7 ended after
a full day of rebuttals for both sides on Thursday.
Rockingham County Superior Court Justice Tina Nadeau will now
review extensive scientific and emotional testimony in order
to determine whether the eight criteria needed to allow
a repressed memory case have been met.
Light, now 18, says she began to recall suppressed memories of
sexual abuse in 2001, first in fragments, and later
in full memories.
A New Hampshire state law known as the Hungerford Law prevents
repressed and recovered memories from being admissible in
court unless eight criteria are met.
Of these, four concern the
reliability of the science, while four are specific to the
individual whose memories are in question, having to do with
the age of the accuser when the alleged abuse took place,
specific circumstances surrounding the abuse and the recovery
process of the memories.
Testimony heard on this last day consisted of the defense's rebuttal
witness, Dr. David Medoff, and the prosecution's witness,
Daniel Brown, Ph.D., a Massachusetts psychologist
and memory-recovery expert.
Medoff testified that the tests Brown used on Light were not
valid, and the one that was valid showed "extremely
severe pathology to the point that it wasn't valid."
Brown maintained that the tests were "open-ended" and
there was no control over the selection of questions
or the wording of the questions. He spoke about the Impact
of Event Scale, a tool developed in the 1990s to assess traumatic
event symptoms. He said Light scored within a range
of suggestive trauma, so he used a more in-depth interview.
"The error rate goes down by assessing in different ways,"
he said.
The defense also cited studies done by Dr. Elizabeth Loftus,
a psychologist who strongly discredits the reliability
of repressed memory, stating that recovered memories
are "products of suggestion."
Brown rebutted this statement. "People who have been abused
and don't trust easily are less suggestible,"
he said.
"It would be very hard to intentionally score a certain
way on these tests," Brown said.
Defense attorney Andrew Cotrupi of Hampton also asked Brown if
the person doing the testing "tried to fool the
alleged victim to get them to answer right, in essence
using tone and body gestures to communicate disapproval."
"If I look at questions and notice some were answered incorrectly,
I'll re-ask them and ask the person to please try
to answer correctly," Brown answered.
The defense offered only a brief summation at the end. "This
is a young woman who had severe problems, and there
are chronic questions of her reliability,"
Cotrupi said. "Hungerford
is undisputed. The state is far from the burden of proof."
"This case is about people," said Howard Helrich, the
prosecutor who replaced Brad Bolton, who originally
worked on the case. "Repression has been accepted by the
Supreme Court. The issue is the process of recovery of the memories."
Helrich went on to say that Light's memories were confirmed by
place, season, furniture, and clothing, and by her
prior medical history.
"You can't create trauma in a lab," he said. "How
sophisticated would she have to be to sway these tests?"
"The bottom line is, science has changed in the 10 years
since Hungerford," Helrich said.
The hearing, which began last August, has been continued numerous
times. This last day of testimony has been continued
since September.
"There were a series of unfortunate events that have caused
the continuation of this hearing to such a late date,
and I'm sorry for that," said Judge Nadeau, referring
to the continuances on both sides as well as the medical leave
of Bolton in November.
Rhianna Light said she is glad the hearing is over.
"It's tiring," she said. Even so, she said she is pleased
overall with the process. "I'm confident the
judge's answer will be fair," she said. "She's been listening
to both sides and doing her best, and whatever answer she gives,
I know she took it all in. I can't imagine her job
right now."
Light said that despite the fact that this ordeal began in 2001,
she is still living a fairly normal life.
"If they decide against a trial, it's OK with me,"
she said. "I've given it everything I could. I would
like it to go further, but it's hard to say."
Light also said that she wants people to know the truth.
"If this doesn't go forward, it means we didn't meet the
criteria for repressed memories in New Hampshire, not that
it didn't happen," she said. "It's important to
me that people know that."
According to Light, in addition to her father being found guilty
of physical assault against her, he was found guilty by
the DCYF (Division for Children, Youth, and Families) on
sexual assault charges in 2001.
"It stays in their computers. He isn't registered as a sex
offender, but it's there," she said.
Cotrupi maintains his client's innocence.
"No one else in America does tests like the ones done in
this case," he said. "I believe the hearing went
well because my expert doesn't make his living testifying
in court."
"The judge has been extremely patient and attentive in this
long, drawn-out hearing," Cotrupi said.
Helrich said the state's evidence went well with regard to testing.
"I think we addressed criteria not in the original Hungerford
case," he said. "The testing was relevant and
we introduced competent evidence."
Although Helrich said he can't predict what the judge will rule,
he said he has faith in the job his office did. "It's
an important case, not only for the people involved in this
case, but for victims all over the state," he said.
Light agrees. "It's hard being a survivor of sexual abuse,"
she said. "Everyone looks at you differently."
Human mind put on trial
By Chris Bernard, The Portsmouth
Herald, August 22 2004
BRENTWOOD - Prosecutors began
presenting testimony this past week that they hope will convince
a superior court judge to clear the way for repressed memories
of sexual abuse to be admissible as court evidence.
Under a 1996 New Hampshire
Supreme Court ruling called the Hungerford Law, state courts
do not recognize repressed memories as reliable. Hungerford requires
certain criteria be met for those memories to be used as testimony.
If Assistant Rockingham County
Attorney Brad Bolton meets those criteria, he'll have the go-ahead
to try an ongoing sexual abuse case against Exeter resident Philip
Bourgelais.
A grand jury indicted Bourgelais
in 2002 on 18 felony counts of aggravated sexual assault, indecent
exposure and lewdness as a result of memories recovered by his
biological daughter. An indictment is not an indication of guilt;
rather, a grand jury found sufficient evidence to warrant a trial.
This past week's hearing has
much broader scope.
Bolton also hopes Superior
Court Judge Tina Nadeau will rule that the science has changed
since Hungerford, and modify the law's criteria to make it easier
to enter recovered memories in court.
"It's an overwhelming
responsibility to make sure only good science gets put before
juries," said Bourgelais' defense attorney, Andrew Cotrupi
of Hampton. "But I'm optimistic."
On the other hand, so is the
prosecution.
"I think we have a decent
shot at getting the standard changed," Bolton said.
The Hungerford
Law
In 1996, in the state of New
Hampshire vs. Joel Hungerford, the Supreme Court ruled the study
of repressed memories should be taken on a case-by-case basis,
and established eight criteria for admissibility.
Four concern the reliability
of the science.
The other four are specific
to the individual whose memories are in question. They cover
the age at which the alleged abuse happened, the amount of time
lapsed before the memories were recovered, and the circumstances
around the recovery.
In the 1996 Hungerford case,
experts testified on both sides of the inexact, and emerging,
science of memory recovery.
One of them, Dan Brown, a Massachusetts
psychologist, this past week returned to the court as an expert
witness for the prosecution. Brown claims the science has caught
up to the court's standards.
Brown is a highly credentialed
psychologist and educator who has authored several textbooks
and articles in this field. He also served as an expert for repressed
trauma memories on the Yugoslav war crimes tribunal in The Hague.
He led the court through a
two-day presentation on "the nature of memory."
"Studies show there's
no significant decrease in accuracy because (a memory) was repressed,"
he said.
Modern science
Specific to the criteria addressed
in the state's original Hungerford ruling, Brown made several
points.
One is that when the Hungerford
case was tried, there were just 12 relevant clinical studies.
Now, there are about 85, he said.
During his presentation, Brown
addressed the methodology and results of each study, hoping to
show their validity.
Many of those studies support
the accuracy of specific recovered memories with corroborative
evidence - for example, a witness to the abuse, or a videotaped
record made by the abuser.
Brown also said the victims
in the Hungerford case had recovered their memories while in
memory-retrieval therapy, a specialized - and, some say, unproven
- type of therapy that targets repressed memories. Critics say
this therapy allows for the possibility of false memories to
be implanted.
Not so for Bourgelais' daughter,
Brown said.
He reviewed her medical and
psychological records and found what he sees as corroboration
- as a child, she told a therapist about a nonspecific memory
of her accuser climbing into bed with her. Years later, when
she began to recover more specific memories, she was able to
parse out the details of that memory into one of abuse.
Brown also tested her inclination
toward suggestibility to rule out the possibility of false memories
being implanted by other people, and for dissociative tendencies
- her ability to compartmentalize, essentially locking traumatic
memories away.
At the time of Hungerford,
standardized testing was inadequate in both these areas, Brown
said.
"I think this is a very
different situation," he said, adding the maturity of the
science has changed, and those studies challenged in Hungerford
have been proven since then.
Bolton agreed.
"I think the court is
going to look at the underlying studies of the scientific community
to see what they say," Bolton said. "It's not going
to listen to a 'He said, she said' between experts."
The challengers
In the opposing camp are several
scholars who also testified in the original Hungerford case and
who refute Brown's claims. They are equally credentialed and
equally confident about their interpretation of the studies he
cited.
The defense is trying to prove
that Brown and his supporters are the minority in the professional
medical world - that memory recovery is still an inaccurate,
fledgling science.
"How do you try a case
against someone who believes they've recovered a repressed memory?"
Cotrupi asked. "They genuinely believe what they're feeling.
They're not lying. But that doesn't mean what they remember is
true."
Hungerford was challenged unsuccessfully
earlier this year in Belknap County. Similar laws exist in other
states, and repressed memories have been in the news recently
thanks to the Catholic Church's abuse scandal.
Now Cotrupi's client, Bourgelais,
finds himself defending not only his own innocence, but a state
law and an entire psychological philosophy, Cotrupi said.
"His future could depend
upon an interpretation of what science can and can't tell us
about the human mind," he said.
To that end, when the trial
resumes in September, Cotrupi will call his own experts to testify
in opposition to Brown.
"It's going to be interesting,"
he said.
Testing Hungerford
Throughout the two-day hearing,
Bourgelais sat quietly beside his attorney. His family clustered
behind him in the audience.
His accuser's family sat across
the aisle, listening intently to the detailed testimony.
Judge Nadeau asked Brown to
repeat himself on a few occasions, taking notes throughout the
presentation.
Cotrupi made frequent objections
to Brown's testimony; more often than not, Nadeau overruled the
objections.
Following the hearing Wednesday,
Cotrupi remained hopeful.
"We're not done yet,"
he said.
The Bourgelais Hungerford hearing
is scheduled to continue Sept. 7, 8 and 10 at the Rockingham
County Courthouse.
If the prosecution convinces
Nadeau that the science of memory recovery is measurably reliable,
it can focus on preparing the case that necessitated this legal
challenge in the first place.
At the center of it all is
Bourgelais' daughter, now a teenager.
"She's been through a
lot," Bolton said. "Not just what we're going to hear
about in this case. She's really a remarkable person, and I have
a lot of respect for her."
When the court adjourned this
past week after the second day of testimony, she stood in the
lobby with her mother beside her.
Her mother said she hoped the
law would be changed to allow her daughter, and victims like
her, to find justice for what was done to them.
"I hope that when this
hearing begins again, the mothers of other victims will sit behind
my daughter in that courtroom to send a message and show their
support for my daughter and for changing the law," she said.
"This isn't just for my daughter. This is for a lot of people
who have been hurt."
Bolton agreed.
"We believe the victim
in this case was subjected to some pretty serious abuse as a
child," he said. "We think she deserves her day in
court, and we're going to work to get her that day."
Memories on trial
by chris bernard cbernard@seacoastonline.com
Editor's Note: It is the policy
of the Exeter News-Letter not to name alleged victims of sexual
abuse. In the hope of helping others in her situation, the woman
in this story consented to being identified.
EXETER - She's just 18, but
the fate of a state law and of her biological father rests on
her shoulders.
Rhianna Bourgelais says her
father sexually abused her as a child, but she pushed the memories
of the abuse out of her mind, a psychological phenomenon called
memory repression. But 10 years later, in 2001, those memories
came back. Rhianna told a therapist, who in turn told the police.
Her father, Philip Bourgelais,
of Exeter, was charged with 18 related counts and indicted by
a grand jury.
Bourgelais' defense attorney,
Andrew Cotrupi, declined to discuss the specifics of the case.
"If the purported victim
wants to litigate this in the press, people should wonder why,"
said Cotrupi.
When Rhianna decided to press
charges against her father, Assistant Rockingham County Attorney
Brad Bolton told her he believed in her case but that prosecuting
it might be difficult since there was a catch.
As a result of a New Hampshire
Supreme Court ruling in 1996 - known as the Hungerford Law -
state courts must consider repressed memories unreliable.
In order for Rhianna's memories
to be admissible in court, several specific criteria would need
to be met.
Essentially, Rhianna's mind
would be put on trial.
Last week a Rockingham County
Superior Court judge heard testimony that may shape the way some
sexual abuse cases are tried.
At a hearing that began last
Tuesday and is scheduled to continue next month, the prosecution
hopes to prove not only that Rhianna's case sufficiently meets
the criteria of the law to allow the Bourgelais trial to go forward,
but that the science of memory recovery has changed enough since
1996 to merit modifying the Hungerford Law.
"That's a lot of responsibility
for a young woman," said Bolton. "She's very courageous,
and I have a lot of respect for her."
For Rhianna, there was never
any doubt.
"If I didn't do it, who
would?"
Remembering
Rhianna Bourgelais will go
to court next month to change her last name to Light. That's
her mother Stacey's name.
Her parents split when she
was 2, and for the next few years Rhianna spent time with each
of them.
Even before Rhianna began recovering
what she believes are memories of sexual abuse, she learned about
physical abuse at the hands of her father.
In 2001, when 14-year-old Rhianna
was staying with her father in Exeter, a school nurse called
Stacey and said her daughter had come to school with bruises.
Rhianna Bourgelais, 18, and
her mother Stacey Light are involved in a court battle over memory
repression. Bourgelais says her father sexually abused her as
a child, but a New Hampshire law prevents those repressed memories
from being used in court. Photo by Jay Reiter
Rhianna said her father had
physically assaulted her at a Water Street business, and at home
and in the car. She said the physical abuse was ongoing.
Bourgelais was convicted on
three counts of simple assault against his daughter. After that,
Rhianna stopped staying with him.
"She loved her father,"
Stacey said. "He violated that."
Later that year, Rhianna started
remembering what she said was repeated sexual abuse by her father
when she was 6 and 7 years old.
It came first as fragments,
as unaccountable feelings of anxiety. Later, she was able to
flesh out the details into full-blown memories.
Dan Brown, a Massachusetts
psychologist and a pioneer in the science of memory recovery,
testified last week in the prosecution's attempt to modify the
Hungerford Law.
"Just because a memory
has been repressed doesn't mean it's not accurate," Brown
told the court.
Rhianna said that though the
memories frightened her when they first began resurfacing, she
never doubted they were real.
"It was more denial,"
she said. "I didn't want to believe they happened to me."
Family
For Rhianna's mom, as for much
of her family, last week's court hearing was the first time she
heard any of the details about the alleged sexual abuse.
"I didn't really get into
specifics with anybody," said Rhianna. "Everybody is
incredibly supportive, but it's scary having them there in court,
too. It was painful for me to hear those things again."
It's likely to get worse. Bolton
said that when the hearing resumes, Rhianna will take the witness
stand to spell out the details of her memories to the court.
The defense will have the opportunity
to cross-examine her.
"I suspect it will be
difficult for her," said Bolton. "That wouldn't be
an easy thing for anyone, but especially for a young woman who's
been through what she has."
There were times when she wanted
to give up, she said. In those instances, Bolton and her family
gave their assent.
"They said it was OK,"
Rhianna explained, "that I didn't have to do this.
"But every victim of sexual
abuse thinks they're alone," she said. "It's not just
a surface scratch - it runs deep, and stays with you your whole
life; and no matter what you do, therapy or anything, it doesn't
go away. You can't make it go away.
"I'm not just doing this
for me. I'm doing it for all the victims like me."
To that end, she and her mother
hope that victims of similar abuse, and their family members,
will turn out at the courthouse wearing teal ribbons when the
hearing resumes on Sept. 7, 8 and 10.
"The ribbons show support
for victims of sexual abuse, and for the Hungerford Law to be
overturned," Stacey said. "I would love to see people
sitting behind my little girl, showing their support."
The Challenge
Bourgelais' defense attorney,
Andrew Cotrupi, said he's optimistic about his client's chances.
"It's a lot," he
said. "No one understands how the human mind works - and
we have the foremost experts in the field."
He chose not to comment on
the specifics of the Bourgelais case other than to say, "We're
not done yet."
When the hearing resumes, Cotrupi
will present his own expert witnesses to refute Brown's claims
and methodologies.
"People should reserve
their judgment until they hear both sides," he said. "So
far, they've only heard one."
If the prosecution is successful
in proving that Rhianna's memories meet the Hungerford criteria,
Bourgelais can appeal.
Rhianna knows she may turn
up empty in her bid. But she's OK with that, she said, because
she's going through with the trial for more than one reason.
Although she'd like to see
Bourgelais punished, she'd also like to help other victims by
paving the way for their cases to be heard, she said.
But, mostly, she said, it's
for herself.
"I'd like validation for
what I remembered, for what I feel," she said. "When
I first started remembering, I couldn't get it out of my head.
It was all I thought about 24 hours a day."
Her mother said if one good
thing has come of all this, it's that she and Rhianna have grown
closer.
"We have a very close
relationship," she said. "We work very hard at it."
Her fear is that the Hungerford
challenge will fail, and Rhianna won't be given a voice.
"I'm hoping my daughter,
who is a victim already, doesn't become victimized again,"
Stacey said. "She had her childhood taken away from her,
but she's voluntarily giving up her teenage years for this.
"I'm so proud of her.
I'm proud she's my daughter."
It wasn't always such a close
relationship, she said. The custody battle and other obstacles
came between them early in Rhianna's life.
Stacey said she stuck with
a lesson her own mother had taught her.
"Never give up on a child,"
she said.
But to her surprise, Stacey
also learned something from Rhianna.
"She never gave up on
me, either."
The Bourgelais Hungerford hearing
will resume Sept. 7 at the Rockingham County Courthouse.
Eight criteria needed to establish
'repressed memories'
The genesis of the state's
legal view of repressed memories, known as the Hungerford Law,
is a sexual abuse case tried in New Hampshire Superior Court
in 1996.
The victim in that case was
a woman named Laura who suffered from depression and experienced
sexual problems in her marriage. Laura began seeing a therapist
in 1992, in her late 20s, when her sister claimed to have recovered
memories of being sexually abused by their father, Joel Hungerford.
According to court documents,
Laura told her therapist that one of her motivations in seeking
therapy was to "explore the possibility that she was sexually
abused." In addition to psychotherapy, Laura began therapy
specifically designed to retrieve repressed memories.
Over the course of about 100
sessions, Laura said she remembered several episodes of abuse.
Some of her memories returned outside therapy, but many were
examined within the confines of her relationship with her therapist.
The details of her memories
as outlined in the court documents are graphic.
The therapist told the court
at the time she believed that dreams "often are the first
signs of emerging memory," that flashbacks are a "sudden
reliving of ... sexual abuse," and that "nightmares
are a red flag for the existence of sexual abuse."
The trial court ruled that
a preliminary hearing was required to address the issue of whether
such memories were admissible, and that the state would bear
the burden of demonstrating that the phenomena of memory repression
and recovery are reliable and have gained general acceptance
in the psychological community.
The court held a two-week hearing,
during which seven experts on both sides of the issue testified.
After the hearing, the trial
court defined a repressed memory as "the complete absence
of awareness or memory of a traumatic event from the time of
its occurrence until a period of years thereafter."
It also ruled that the state
had failed to meet its burden of proving that there was general
acceptance of the phenomenon of repressed memories in the psychological
community, and that the state had failed to demonstrate that
the phenomenon was reliable.
The court ruled that the study
of repressed memories should be taken on a case-by-case basis,
and established eight criteria for admissibility.
Four concern the reliability
of the science.
The other four are specific
to the individual whose memories are in question. They cover
the age at which the alleged abuse happened, the amount of time
lapsed before the memories were recovered and the circumstances
around the recovery.
The Hungerford ruling was appealed
to the state Supreme Court, and the decision withheld in 1997.
Under the Hungerford law, in
order for any case involving repressed memories to be tried,
those eight criteria must first be met in a pre-trial hearing.
The Hungerford hearing for
the Rhianna Bourgelais case began last Tuesday, and is expected
to resume Sept. 7.
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reserved.
THE BOURGELAIS TEST CASE IN
BRENTWOOD N.H.
We urge the courts to keep the
threshold high when
it comes to
introducing repressed memories
as evidence in criminal trials.
Editor: THE PORTSMOUTH HERALD
THE EXETER NEWS - LETTER
Teen's memory on the stand
By Chris Bernard, cbernard@seacoastonline.com
Editor's note: It is the policy of the Exeter News-Letter not
to name alleged
victims of sexual abuse. The woman in this story consented
to being identified.
BRENTWOOD - The 18-year-old Hampton woman who says she repressed
and subsequently recovered memories of her father sexually
abusing her took the stand this week in Rockingham County
Superior Court.
Rhianna Light's testimony capped off two more days of a pretrial
hearing to determine whether the assault case against her
biological father, Phil Bourgelais, of Exeter, can proceed.
Under something called the Hungerford Law, the State of New Hampshire's
Supreme Court ruled in 1996 that repressed and recovered
memories are admissible in court only if eight criteria
are met.
Four of the criteria have to do with the accuser and the circumstances surrounding
the memories' recovery; four speak to the reliability of the
science of memory recovery itself.
Assistant Rockingham County Prosecutor Brad Bolton is hoping
to prove that his client's memories meet those criteria.
The hearing began last month. It resumed Tuesday and Wednesday
of this week, and will continue today.
Memories
Light claims she began recalling incidents of sexual abuse in
2001 that she said happened when she was between the ages
of 6 and 7.
On the stand, Light seemed confident and strong, if a little
nervous. Her voice grew soft at times.
During the cross-examination, she met defense attorney Andrew
Cotrupi's gaze as he challenged her testimony, her motives
and the timeline of events that led to her accusations.
Light admitted she'd had problems with alcohol and drugs. She
was hospitalized at Hampstead Hospital more than once after
she began thinking suicidally.
Those stays came after she began to suspect she'd been sexually
abused, she said.
"It was just getting to be too much," Light said, "...
dealing with the possibility that I'd been sexually abused."
Both prosecution and defense tried to get at the core of how
that possibility first came to be considered.
In her early teens, Light began hearing a disembodied male voice
- one she described in her testimony as "stern, angry,
controlling" - and mentioned it to a therapist. Later,
Light would connect that voice with her father, and with at least
three incidents of abuse, she said.
The case might hinge on how that connection was made. One of
the criteria outlined by Hungerford says that repressed
memories can not be recovered in therapy specifically designed
for retrieval.
Cotrupi argued that at least one of Light's former therapists,
Catherine Ganley-Brown, who took the stand for the prosecution
Tuesday, told Light that hearing voices can be an indicator
of sexual abuse.
Initially, Cotrupi said, Light told prosecutors that no therapist
had told her that. But following Ganley-Brown's testimony,
she admitted she had been told, and had forgotten it.
Cotrupi's argument is that once Ganley-Brown had suggested that
possibility, the seed was planted.
Following that realization, he said, Light purchased several
self-help workbooks on sexual abuse, and participated in
an online forum for survivors of abuse, which he implied
informed her process of recovering the memories.
Light said her memories came back to her first as still images
and later as fleshed-out memories, like dreams. In two of
the three images, she said, she can see her father.
With those memories in mind, she turned to the family photo albums
looking for something that might trigger more memories,
she said. She found bits and pieces of things that, to her,
corroborated what she was feeling.
The prosecution showed some of those photos in court Wednesday.
Most were of a younger Light in her father's Beech Street home
in Exeter. In one, she's standing beside a Christmas tree
on which hangs an ornament she remembered in one of her
memories. In another, she's wearing a dress she remembered.
Prosecutor Bolton repeatedly asked whether the memories had resurfaced
before Light's finding the photos, or if the photos had
triggered the memories; in each case, she said the memories
had come first.
Sins of
the father
Light's parents split when she was 2. She lived with her father
full time for a while, and then spent time week-on, week-off
with both parents.
In 2001, her father was convicted on three counts of simple assault
against her. After that, Light stayed with her mother full
time.
The defense made the case that the sexual abuse accusations may
be driven by other motives, including revenge for that physical
abuse, or Light's wanting to protect her mother during the
emotional custody battle that ensued.
Cotrupi pointed out that Light's mother, Stacey Light, had also
been sexually assaulted when she was younger, and had been
hospitalized for drug addiction.
Under his questioning, both Ganley-Brown and Light's current
therapist, Lisa Higgins-Siegal, who took the stand Wednesday,
said that at times, Light needed to "mother her mother"
emotionally.
In July 2000, Light told a counselor she wanted to live with
her father "because he listens," Cotrupi said.
She also said at the time she was worried about telling
her mother because she feared her mother might commit suicide.
Light said she hadn't wanted to live with her mother because
her mother wouldn't let her smoke marijuana, drink alcohol
or skip school, but said her father would.
Both Bolton and Cotrupi questioned Light about the physical abuse
for which Bourgelais was convicted. She said that was not
the first time he'd gotten physical with her.
But Cotrupi questioned those claims, and pointed out that before
the assault, Light had characterized her relationship with
her father as "great."
"Yes," she said. "Because there were no rules."
"You were free to do what you wanted?" Cotrupi asked.
"Yes."
Throughout the trial, Bourgelais sat silently beside Cotrupi.
His parents and other supporters sat behind him.
Light's family and friends clustered on the other side of the
court, huddling around the teen during breaks.
The hearing resumes today when the defense will present its own
expert witness to testify against the reliability of recovered
memories.
Copyright 1999 - 2004 Seacoast Newspapers, a division of Ottaway
Newspapers
Inc., all rights reserved.
Caution necessary
in use of repressed memories in trial
THE PORTSMOUTH HERALD,
Editorial, August 24, 2004
The jury is still out when it comes to the relatively new psychological
practice of retrieving repressed memories.
That's why our state's courts have set an extremely high threshold
when repressed memories are used as the basis for finding
someone guilty of a crime. The threshold includes eight
criteria that focus on the specific individual making the
accusations and the circumstances surrounding the retrieval of
the memories.
A case now being argued before a Rockingham County Superior Court
judge, however, says that the science of retrieving repressed
memories has advanced to a point where those memories should
no longer be considered unreliable.
While we understand the motive of the county prosecutor and empathize
with the alleged victim, we believe if they are victorious
they will set a dangerous precedent that could, in some
cases, cause innocent men and women to be convicted based
on science that is questionable at best.
A prosecutor from the Rockingham County Attorney's office is
fighting for a young woman who says she was sexually assaulted
by her biological father, Phillip Bourgelais, of Exeter.
The abuse allegedly occurred when the girl was quite young, but
she only began to speak of it more than a decade later as
she matured and received help from a therapist.
We are in no position to judge the truth of her accusation. Our
concern with it is simply that the central piece of evidence
seems to be a memory that was repressed for years and has
now allegedly surfaced. The attorney for the accused put
into words our gut-level concern.
"How do you try a case against someone who believes they've
recovered a repressed memory?" asked Andrew Cotrupi,
of Hampton. "They genuinely believe what they're feeling.
They're not lying. But that doesn't mean what they remember
is true."
If repressed memories are corroborated by physical evidence,
eyewitness testimony, confessions or some other type of
evidence, they could help bring the distant past into focus.
By themselves, they present a fuzzy picture indeed.
We urge the courts to keep the threshold high when it comes to
introducing repressed memories as evidence in criminal trials.
Editor: - THE PORTSMOUTH HERALD
Copyright 1999 - 2004
Seacoast Newspapers, a division of Ottaway Newspapers
Inc., all rights reserved.
Memory is at issue
By Chris Bernard , September
14, 2004
cbernard@seacoastonline.com
Editor's Note: On Friday,
the News-Letter will present the next story in its ongoing coverage
of this trial.
BRENTWOOD - In the hearing
to determine whether repressed memories should be admissible
in a sex abuse trial, it was a battle of science on Friday.
At its core, the case is about
claims made by 18-year-old Rhianna Light that, when she was younger,
her father, Exeter resident Phil Bourgelais, sexually abused
her. Light says she repressed and subsequently recovered memories
of that abuse.
In 1996, a state Supreme Court
ruling established criteria for prosecutors to meet for repressed
memories to be admissible in New Hampshire courts. Last month,
Assistant Rockingham County Attorney Brad Bolton began his efforts
to show that her case meets those criteria.
But painted on a broader canvas,
much of the case so far has been about science.
The prosecution's expert witness,
Dan Brown, testified that, based largely on his review of 85
scholarly studies in the field, repressed memories are reliable.
Brown also said most of the scientific community agrees.
On Friday, the court heard
otherwise.
Dr. Harrison Pope, a Harvard
psychiatrist acting as witness for the defense, rebutted most
of Brown's claims. He also disputed Brown's methodologies.
For nearly 30 years, Pope has
been a professor of psychiatry at Harvard Medical School, teaching
at McLean Hospital in Massachusetts. His expertise, he said,
lies in the design and interpretation of studies and minimizing
metholodogical flaws.
Pope said he is one of the
250 most-cited psychiatrists in the world.
Defense attorney Andrew Cotrupi
spent some time Friday establishing Pope's resume for the court,
and comparing it to Brown's.
Immediately, Bolton took exception.
"I don't understand how
(Pope) could be an expert in repressed memories if he doesn't
believe they exist," he said.
Memories
Pope's testimony began simply.
"Trauma is memorable,"
he said.
People are more likely to remember
Sept. 11, 2001 - the day the airliners crashed into buildings
in New York and Washington, D.C. - than, say, Aug. 11.
"If Mother Nature designed
us to forget trauma, that would seem very odd," he said.
"If we forgot that we were attacked by a lion, we'd walk
in front of another lion."
Science, like law, has a burden
of proof, Pope said. In this case it falls on those who support
repressed memories.
In order to acceptably meet
that burden of proof from a scientific example, he said, simple
criteria need to be met. A scientist must show that a significant
number of victims of documented trauma were unable to remember
that trauma.
In addition, other causes of
amnesia need to be ruled out, such as age, physical injury or
drunkenness, he said.
In Pope's opinion, most of
the studies cited by Brown failed to meet those criteria - either
the initial trauma wasn't documented, or other causes of forgetting
were not ruled out.
In many cases, he said, victims
of trauma don't report it. Nonreporting can be mistaken for amnesia.
Many studies are done retrospectively,
he said - subjects who self-report trauma later are asked if,
at any time, they forgot that trauma. That's an unreliable approach
to documenting dissociative amnesia, a more technical term for
repressed memories.
"I'm not saying as a scientist
that repressed memory can't exist," Pope said. "I could
be convinced. ... (But) the burden of proof falls on the other
side to prove that it does."
General acceptance
Pope spoke to the idea of general
acceptance; essentially, whether a majority of scientists accepts
the phenomenon of repressed memories.
"If it were valid,"
he said, "one would expect a steady output of scientific
publications on the topic."
To that end, Pope searched
publication databases for repressed memory-related terms and
found more than 100 articles published in 1997.
Before that, he found "almost
zero," he said, and after 1997 he found a major drop-off.
There were just 34 publications in 2003.
"That suggests that repressed
memories enjoyed a brief period of scientific interest which
has now waned," he said.
For comparison, Pope also searched
for studies on other recently defined scientific orders, such
as binge-eating and chronic fatigue syndrome. He found a similar
peak but no significant drop-off.
Further, he said, since 10
percent of women and 5 percent of men experience some sort of
childhood sexual abuse, if just 20 percent experienced repressed
memories, hypothetically speaking there should be about 3 million
cases of repressed memories annually.
"There was not a single
published case (of documented repressed memory) in 2003,"
Pope said.
Pope outlined what he called
the "four fallacies" that plague many of the studies
cited by Brown.
One of them posits that just
because a scientist thinks something is possible does not mean
it is generally accepted.
As an example, Pope considered
life on Mars. Even if most scientists think it is possible for
life to exist on Mars, it is not generally accepted that it does,
he said.
"Is repressed memory generally
accepted in the scientific community?" Cotrupi asked Pope.
"It is clearly not,"
Pope replied. "I would say it enjoys even less recognition
... than it did at the time of Hungerford in the mid-1990s."
Cross examination
When Cotrupi cross-examined
Brown earlier last week, he attacked the expert's motivation
for testifying in court. On Friday, the prosecution did the same
with Pope.
Pope is a member of the scientific
advisory board of the False Memory Syndrome Foundation, a nonprofit
group that acts as a flagbearer for the idea that repressed memories
can be implanted or imagined.
Bolton said the FMSF has been
involved in several high-profile lawsuits against therapists
who claimed to have helped patients recover memories.
He also linked Pope to Christopher
Barden, a psychologist and attorney who consulted on Pope's published
critique of Brown. Barden also has been perhaps the most vocal
opponent of repressed memories, speaking on TV and in print media,
and trying several large jury award cases claiming false memories.
Assistant County Attorney Bolton
went after the integrity of the FMSF, which he said is composed
of "a group of parents who feel they've been falsely accused
by their children."
He questioned Pope's involvement
with Barden and the FMSF, "two groups who have a serious
interest in squashing the science of repressed memories."
Pope defended his involvement,
saying he was a member only of the scientific advisory board
and not involved in the day-to-day operations of the group.
"I strongly support the
science," he said.
Bolton also worked his way
through several published studies that Brown said documented
repressed memories, questioning why they failed to meet Pope's
criteria for reliability.
Pope stood his ground, repeating
variations of similar statements like a mantra.
"Certainly people make
active attempts to forget," he said. "That's quite
different from not being able to remember. ... Of course there
are people who try to avoid talking about trauma, too. That is
very different from being unable to remember trauma."
Bolton seemed skeptical.
"Of all the studies, the
only one that meets your criteria supports your position?"
he asked.
As a witness, Pope earns $600
an hour. He said he had been told the defense had limited funds,
and said he expected to be paid for 10 hours of his time "at
the most."
"I've gone well over that
already," he said.
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|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
