High Court to Review Privacy Rights

Stepping into the debate over repressed memory, the California Supreme Court decided Wednesday to review whether a famed memory scholar can be found liable for defaming and invading the privacy of the subject of a psychological case study.

The 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.

The state high court’s eventual decision is expected to resolve whether academic researchers and journalists can challenge medical and psychological research by delving into the private lives of the research subjects.

Loftus said Wednesday that she was “extremely gratified” that the court had decided to review the case.

“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,” Loftus said.

But Joyanna Silberg, executive vice president of the Leadership Council on Child Abuse & Interpersonal Violence, said Loftus behaved unethically in probing the life of the woman identified in the study as “Jane Doe.”

“Science is in jeopardy if the public is not protected by ethics and standards,” said Silberg, a clinical psychologist who specializes in child abuse. “There is no individual who is above the law, whether they be a very well-respected scientist or the president or a garbage collector.”

The story of Jane Doe was first published in 1997 in a journal called Child Maltreatment. The principal author, a psychiatrist, had interviewed Jane as a child about abuse allegations against her mother. Eleven years later, Jane met with the psychiatrist again. She told him that she had no memory of the alleged abuse, but then suddenly recalled it during that therapy session.

The case study was viewed as proof of the existence of repressed memory, a theory that the mind can erase painful events and then recover them accurately years later. Loftus calls the theory “folklore.”

Loftus, who lectures and testifies about memory around the nation, used two private eyes, the Internet, newspapers and court records to track down the family and associates of Jane Doe.

In an article published in a quarterly magazine, Loftus and another professor suggested that Jane Doe’s memory was false and that the sexual molestation had never occurred.

The authors did not reveal the woman’s name or where she lived. However, the subject of the case study, identifying herself as Nicole Taus, sued Loftus and her collaborators. Taus said Loftus had breached the confidentiality that subjects rely on in agreeing to participate in important medical and psychological research.

Taus also charged that Loftus misrepresented herself to get information about the case and relied on confidential court records. Loftus denied the charges.

The court accepted Loftus’ appeal without comment. After both sides present written arguments, the court will set a hearing date and decide the dispute within 90 days of the hearing.