MEMORY ON TRIAL

By Christine Gorman

Joel Hungerford, 57, stands ac cused of a crime that would seem unforgettable. In 1991, his daughter charges, he raped her-just days before her wedding. Laura B., as she is called in a New Hampshire court proceeding, did not tell anyone about the assault because, she claims, she repressed all memory of the ordeal. Only after she began therapy a year later did the horror resurface. "It was his hands. It was his beard. It was his body,'' she said last week in a pretrial hearing before Judge William Groff. "He ripped the covers off my bed, pinned my arms over my head and pushed my legs apart." Hungerford denies all charges and has pleaded not guilty.

In recent years, thousands of Americans, many with the help of psychotherapy, claim to have recovered bad memories. They have recalled being raped, being sexually abused or even seeing someone killed. And in most cases, they did not remember the events for decades after the crimes were supposed to have taken place. A large number of juries have believed these stories-enough to convict two men of murder and award millions of dollars in damages to victims. But some scientists have challenged the validity of repressed memories, arguing that many of these recollections are false creations, born of patients' suggestibility and their therapists' leading questions.

In a statement, defendant Hungerford maintained that therapists and their clients "have the power to invent a crime ... and use the legal system to trash your life and rape you-financially and emotionally." What makes his case different is that, for the first time, a criminal-court judge has agreed to decide before a trial begins whether or not a witness's testimony based on recovered memory is solid enough from a scientific point of view to be presented to the jury. Previously, courts left it to juries to decide whether to believe the memories. Legal experts expect Judge Groff to issue a broad decision that affects both the Hungerford trial and another case before the same court, and that could serve as a precedent for future trials everywhere.

While testimony proceeded in New Hampshire, developments in two other criminal cases kept the recovered-memory issue in the headlines. In California an appeals court overturned, on a technicality, George Franklin's 1990 conviction for a 20-year-old murder. Franklin's daughter Eileen had testified that in 1969, when she was eight years old, she had seen him kill her best friend. She was so stunned, she said, that she repressed the memory for nearly two decades. Although the validity of Eileen's testimony was not at issue in the appeal, it will certainly become the main focus of the new trial. In Kittanning, Pennsylvania, Franklin Crawford was given a 10-to-20-year sentence for drowning a woman in 1971. His conviction was based almost entirely on the testimony of a former neighbor who, more than 20 years after the event, suddenly recalled witnessing the crime.

Few doubt that experiences can be so traumatic that large parts of them are lost to conscious recall-the idea of repressed memory goes back to Freud. But psychologists, psychiatrists and other scientists are bitterly divided over the idea that the memory of repeated abuse can be completely wiped out and then recovered, virtually intact. The American Psychological Association appointed a task force in 1993 to develop a consensus on the issue. The group quickly stalemated, and its report, due next September, is expected to add to the confusion by including two conclusions, two critiques of those conclusions and two responses to those critiques.

While the academics quarrel among themselves, dozens of people who claim to have been unfairly accused of sexual and physical abuse by their children or others are fighting back. Arguing that they are the victims, the accused are suing therapists for allegedly putting ideas in their patients' heads. In Napa Valley, California, last year, winery executive Gary Ramona took his daughter's two therapists to court, claiming that they had induced her to confront him and say he had molested her. Ramona's wife subsequently divorced him and, once his employer found out about the accusations, he lost his job. The jury agreed that the therapists had been negligent and awarded Ramona $500,000.

Many parents accused of sexual abuse on the basis of recovered memories do not have the means to launch a legal counterattack. Instead, they are turning to the False Memory Syndrome Foundation in Philadelphia to find a way to counter the allegations. They have also joined others to form a separate group that is lobbying for repeal of newly expanded laws in two dozen states that make it easier to prosecute people using recovered memories.

At the core of the debate is the nature of memory. "Everyone has had a childhood thing happen to them, like a scolding from a teacher, which came back when it was cued by something else," notes Dr. Lenore Terr of the University of California, San Francisco. Similarly, she argues, extreme traumas can be more deeply buried than other memories. "This may seem counter-intuitive to the lay person, who thinks 'If something terrible happens, I will always remember it,' " says Dr. Judith Herman, a psychiatrist at Harvard Medical School. "But these memories seem to be laid down in an altered state of consciousness."

New evidence may support this theory. In a study published five months ago, sociologist Linda Williams of the University of New Hampshire tracked down 129 women who, as children, had been taken to emergency rooms in the late 1970s for abuse-related injuries. Nearly two decades later, 20 of them said they could not remember their hospitalization. Williams determined that the children who had been the most severely abused-and abused at the youngest age-were the most likely to have forgotten the experience.

While some memories are undoubtedly repressed, the belief that they can be recovered in vivid detail, through such techniques as visualization and hypnosis, makes many scientists skeptical. The latest work on the brain suggests that our memories are always dynamic and never quite whole. From the moment we experience them, our perceptions are broken down into fragments that are stored all over the brain. The memory of a rose, for example, doesn't exist in any one place in the cerebrum. Instead it is created anew every time a person thinks about it, from subunits of sensation based on color, shape and smell. There is no mind's eye that records everything like a videotape.

If repressed memories pop up years later, brain specialists say, they must be imperfect-and highly vulnerable to outside influence and revision. Elizabeth Loftus, a professor of psychology at the University of Washington, has shown just how easy it is to create a false memory. In a study to be published this summer, Loftus asked older siblings or other relatives of 24 people to make up a story about the younger person being lost at the mall between the ages of four and six. While 18 participants insisted that the incident had never happened, six of them not only believed the story but also developed their own memories of the fictitious event.

Without corroborating evidence, Loftus says, an accurate memory cannot be distinguished from an imagined one. But therapists often feel that it is not their job to judge their patients' credibility. That's a mistake, says Dr. Paul McHugh, a psychiatrist at Johns Hopkins Medical School. "By not making an attempt to find additional confirmation for what the patient is telling you, you are ultimately saying that you believe the patient simply because the patient's feelings are so intense," he says. And yet, he adds, "feelings can mislead."

But the doubts about recovered memories should not obscure the fact that child abuse is a real-and enormous-problem. More than 400,000 reports of verifiable sexual assaults are filed with authorities each year by teachers and doctors who deal with obviously battered and traumatized youngsters. That kind of statistic makes it all the more important that in cases like the Hungerford trial in New Hampshire, the legal system gathers enough hard evidence to decide which are the real memories-and who are the real victims. --Reported by D. Blake Hallanan/San Francisco, Alice Park/New York, Rod Paul/Manchester and Dick Thompson/Washington

With reporting by D. BLAKEHALLANAN/SAN FRANCISCO, ALICE PARK/NEW YORK, ROD PAUL/MANCHESTER AND DICK THOMPSON/WASHINGTON