The Role of Legal Rules in Recollections of Trauma

Abstract

It is tempting in a discussion about recollections of trauma dominated by psychologists to assume that the role of the legal system in addressing recollections of trauma is at best irrelevant and at worst anti-therapeutic. Not only does this thinking ignore explicit pro-therapeutic legal efforts, as for example in the recognition of a psychotherapist-patient privilege limiting compelled disclosure of relational communications (Jaffee v. Redmond,1966), but it also inaccurately assumes the existence of a monolithic world legal system. The wide differences in world legal systems, and the wide differences in the experiences of different countries to the issues surrounding recollections of trauma addressed in this conference, fuel speculation about the role that these legal systems may play in explaining, for example, the varying frequencies with which allegations of “recovered repressed memories” of childhood sexual abuse arise in different countries. For example, does the availability of tort damages provide an incentive for patients to remember forgotten traumatic tortious events; does the availability of tort damages provide an incentive for therapists to encourage patients to remember traumatic tortious events to fund therapy; and, does the availability of tort damages provide an incentive for researchers to conduct studies that may enhance their prestige as expert witnesses? By their response to issues surrounding recollections of trauma, legal systems may shape not only the behavior of those who identify themselves as abuse survivors, but also the behavior of therapists who treat them and the researchers whose work addresses this treatment and related phenomena.