Flashback to Buried Memories in a Case of Homicide

A rare medico-psycho-legal case is presented, which despite relying on the methodology of a single case history that is anathema to many who are neither clinicians nor lawyers, demonstrates a clear flashback to the memory of sexual abuse which occurred some 13 years before. The flashback was evoked by a stimulus situation that closely resembled the original, and it provoked a frenzied attack that left the surrogate abuser dead. Chronologically the earlier sexual abuse was validated from the indirect and hesitant manner by which the story emerged, and from a long-term cluster of signs and symptoms of associated adjustment and developmental problems. But for whatever reason the first Jury was not satisfied by the defence and found the accused guilty of murder, and the Judge imposed the sentence of life- imprisonment. Subsequently the Court of Appeal awarded a retrial on a point of law relating to the defence of provocation.

The original abuser was located just before the retrial some 14 months later, and he virtually admitted to the Police the truth of the allegations that had been made about him. Subsequently he was brought to the High Court by the defence under subpoena to give evidence, where the second Jury found the accused not guilty of murder but guilty of manslaughter, and the Judge sentenced him to five years imprisonment. Now the defence is to go further on appeal to seek a decision as to whether such an involuntary flashback would negate the capacity to form the legal intent that is an essential component of the crime.

Regardless of that particular outcome, the case is presented here for its unique feature which relates flashback to a killing, and involves the earlier sexual abuser being brought in person to give testimony. Although it does not invoke the concept of repression, because the victim said that the childhood memory was constantly with him, the case might introduce a cautionary note for those who are perplexed by the present adversarial nature of the repressed memory/fabricated memory debate and are trying to work out a tenable position in the matter.

Recently the exchanges between adversaries have become more acrimonious than academic, with lines of assertion drawn that are reminiscent of those between the 'tough' and 'tender' minded psychologists which once split the discipline. The successors of the so-called 'hard- nosed' experimentalists, set out exclusively to 'operationalise' concepts through clear and repeatable experimental procedures and seek 'generalizibility' (cf. Banaji & Crowder, 1989). They used well defined and randomly assigned large groups comprised mostly of University students under specified conditions, made controlled observations and interventions, and employed objective measures of designated dependent variables. Their counterparts followed the humanist and ecological tradition, and relied more upon the chance disclosure of naturally occurring bizarre phenomena with a sequential series of people at large. They used such clinical, cultural, educational, and social events as might provide independent verification of differential reactions (cf. Neisser, 1982; Cohen,1989). (A third group that is said by van der Kolk to have only political and forensic concerns, cited in Harrington J 1996, is left aside for the consideration of others elsewhere).

Rarely do the two camps meet intellectually and professionally, except to demonstrate the irreconcilable differences between the militant arms of 'pure' and 'applied' psychology. But their national organisations in Australia, Britain, North America, and New Zealand are known currently to be striving for the middle ground in claims of sexual abuse that would reduce the number of false-positive and false-negative declarations of repressed memory. For example the NZ Psychological Society is known to have adopted the conservative midway resolution of the dispute, and currently to have a booklet in preparation that urges practitioners to be extra-cautious not to implant ideas of sexual abuse through their interviewing methods, to keep careful records, and to seek independent validation of traumatic recollections, especially when they are of distant events in childhood.

Yet the widespread tension on the issue between the two sides is still such that in June 1996 the NATO Advanced Study Institute held an international conference in France on 'Recollections of trauma: Scientific research and clinical practice' to effect a rapprochement - where incidentally the phenomenon of repressed memory was confirmed rather than rejected, but clinicians were advised to observe greater care in its verification (private communication J. McDougall, Victoria University, 22 October 1996).

Sometimes a rapprochement between rival factions in psychology is effected incidentally when the Courts look for help in the understanding of aberrant behaviour (e.g. Maxwell, Seymour & Vincent, 1996). One such example to be elaborated in what follows (R v Campbell, 28 October 1996, Napier High Court, as yet unreported), turned on the viability of the defence of provocation in a charge of murder, in the case of a 20 year old man who spoke of having had a flashback at the time of homicide to the memory of multiple sexual abuse to which he had been subject at about the age of seven.

Here it should be said that very short notice, limited financial resources, difficult access to the accused in another part of the country, and the timing of events, did not permit a conventional psychometric assessment of the cognitive and personality factors of memory. Reliance had therefore to be placed on brief interviews with the offender, his parents, and his teachers, and on observations of witnesses during two trials, together with an examination of documentary evidence from independent sources to check the veracity of descriptive accounts. Then recourse had to be made to the relevant authorities in behavioural science and law, (See footnote 1) before being called as one of the team of expert witnesses for the defence.

At that time, from being satisfied from the depositions that neither insanity nor automatism were in question, but that the criteria for post-traumatic stress disorder (PTSD) had been met (American Psychiatric Association, APA, DSM IV,1994, pp 424-429), the defence of provocation was advanced because of the close similarity between the approach of the deceased and of the perpetrator of the earlier traumatic stress. Issues to be canvassed, included those of repressed memories, post-traumatic stress disorder, flashbacks, and the research base, as will become clear in the following sections. Then this presentation will describe the defence strategy that was adopted, provide a precis both of the facts of the case and of the personal circumstances of the accused as were attested in the High Court, consider the outcome, and list the references.

Repressed memories

At the time in New Zealand, the criminal courts had not previously had traumatic memories presented as part of the defence of provocation to a charge of murder, and there was a dispute brewing in legal circles as to whether they should even be accepted in any other type of case without corroborative evidence (Hampton, 1995). But in the United States, the civil courts had just ruled repressed memories valid as scientific knowledge and therefore admissible as evidence on the grounds that the theory had been tested, subjected to peer-review and publication, found to have a known or potential rate of error, and to have general acceptance within the relevant scientific community (Harrington J, 1996). In the same country they were known also to be admissible as evidence in the defence of insanity in criminal trials when associated with posttraumatic stress disorder (PTSD) (Sparr & Atkinson, 1986; Pitman, Sparr, Saunders & MacFarlane, 1996).

Posttraumatic stress disorder

PTSD is acknowledged by the World Health Organisation as one of only a few disorders for which the specific cause is known (cited by Pitman Sparr et. al., 1996). Its diagnostic criteria are well described (APA, 1994, pp 424 - 429), and they fall into four categories, a cluster of which is accepted as being necessary to establish the diagnosis:- i.e.

A.     exposure to a major threatening event with a fearful response
B.     persistent re-experience of the event
C.     avoidance of associated features, and
D.     symptoms of increased arousal.

According to Sparr and Atkinson (1986), the PTSD and insanity defence has been rarely established, and for it to succeed, it has to be shown that:-

- the original traumatic event occurred in the life of the accused
- psychiatric symptoms developed afterwards, and
- links with subsequent crime could be demonstrated.

Then by way of elaboration, Pitman Sparr et. al.(1996) suggest that support for such a PTSD insanity defence arises when:

1. the act represents spontaneous, unpremeditated behaviour uncharacteristic of the individual;
2. coherent dialogue appropriately related to time and place is lacking;
3. the choice of victim is fortuitous or accidental;
4. the response is disproportionate to the provocation;
5. the act is rationally inexplicable and lacks current motivation;
6. the act recreates in a psychologically meaningful way elements of the original traumatic stressor;
7. the defendant is unaware of the ways in which he or she has re-enacted the traumatic experiences *;
8. the act is precipitated by events or circumstances that realistically or symbolically force the individual to face unresolved conflicts; and
9. there is amnesia for the episode *.

In applying the preceding list to the present case, the two asterisked items 7 and 9 were omitted from further consideration, together with certain other standard symptoms of insanity such as delusions and hallucinations, because the accused was not mentally disordered, he knew the nature and quality of the act, and knew what he did was wrong. But the remaining list of items was pertinent, particularly # 8 that features a major PTSD symptom in category B 3, viz : "acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes...)"(APA, 1994, p 428).

Flashbacks

For general purposes flashbacks can be defined as the sudden re-experience of events that may range from pleasant to terrifying. If pleasant they are life-sustaining, and may even be induced voluntarily and consciously by the sight, sound, smell, touch, taste, and fond recollections of former times. If terrifying they are life-threatening, and are evoked involuntarily and unconsciously by the same sensory systems but troublesome recollections. They may be of either short or long duration, and will vary in their frequency of recurrence, intensity, and fragmentation.

Their existence is common knowledge, perhaps from experience of the instant play-back of audio and video tape recordings and the public performance of hypnosis for entertainment. But they have yet to be defined for general purposes by the Oxford dictionary - i.e. the 1981 Concise Oxford merely defines flashback as '(Cinema, etc.) scene returning to or changing to earlier time', and the 1993 New Shorter Oxford makes no mention of it at all. However for clinical purposes they have been defined in a specific sense, i.e. as the adverse after-effects initially of ingesting hallucinogenic drugs such as lysergic acid diethylamide, and marihuana, and later of traumatic events. For example, at first Kaplan, Freedman and Sadock (1980, p 1627) described flashbacks as 'episodes of visual distortion, time expansion, physical symptoms, loss of ego boundaries, or relived intense emotions, lasting usually a few seconds to a few minutes, but sometimes longer', and they went on to say that 'As a rule, the flashbacks are mild, often pleasant, but occasionally they turn into repeated frightening images or thoughts resembling a traumatic neurosis ..... the latter being a term commonly used to designate the acute anxiety symptoms that start after a near escape from death in combat, an accident, or a natural catastrophe' (p 2102).

Then in a later edition of the same work, incidentally which appeared after the findings of the US Congress appointed Vietnam Veterans Readjustment Study (Kulka, Schlenger, Fairbank, Hough, Jordan, Marmar & Weiss,1990, pp 39-42), the authors acknowledged the close link between flashbacks and posttraumatic stress disorder (PTSD), and warned that the 'patient with true PTSD frequently focuses on the negative features of the disorder - the emotional numbness, indifference, and social withdrawal - while the malingerer may be more impressed by (and therefore hope to impress more with) the expressionistic, flamboyant nightmares and the flashbacks.' (Kaplan & Sadock, 1995, p 1620).

Wilson and Raphael (1993, p 996) took the matter further with no less than 20 references to flashbacks and PTSD that followed exposure to a wide variety of stressful situations. Among them Herman (1993a) mentioned flashbacks and sexual abuse, and Weiss (1993) drew a distinction between intrusive memory, in which those affected perceive themselves to be remembering the event - and flashback, in which, in a 'dissociative-like' state, they lose the ability to distinguish the past from the present and might remain unaware of their reactions unless observers were to describe them.

But despite their psychiatric importance, the links between flashbacks/ childhood sexual abuse(CSA)/ and PTSD evidently has yet to attract the attention of researchers as distinct from clinicians, because from 1984 to September 1996 only 93 abstracts on the topic appeared out of the many thousands covered in the PsycLIT data base. Of these, a scrutiny showed only 2 to have some bearing on the present case. One, abstracted from Spain, reported the common attributes of military excombatants and victims of sexual abuse: i.e. 'the intense reliving of the experience in nightmares, flashbacks or involuntary recall, avoidance of associations, and hypervigilance '(Corral Echeburua Sarasua & Zubizarreta, 1992). The other, from a research group at Otago University, found an enduring relationship between CSA and the subsequent negative outcomes in the lives of a random sample of 248 adult women as compared with their controls (Mullen, Martin, Anderson, Romans, & Herbison,1994). These researchers went on to say that CSA had a critical effect if it occurred some three to four years before puberty and followed earlier negative effects, (as will become apparent in the present case), because:-

"It puts at risk the emerging sexual identity, the acquisition of a sense that the world is a reasonably safe and essentially benign environment. It puts at risk trust in others, particularly those on whom they are critically dependent. It puts at risk children's emerging sense of themselves as active agents with some control over their world; and finally, it puts at risk their developing self-esteem....Children who have already experienced other forms of abuse and neglect are particularly vulnerable."

Similarly in the field of forensic psychology, flashbacks have yet to feature sufficiently in cases before the criminal courts - else the bibles of Bluglass and Bowden (1990), Gunn and Taylor (1993), and the new testament of Brookbanks, Chaplow and Peters (1996) would have made reference to them. But until the few are adequately examined and documented, it will be difficult to refute the opinion that the 'content of a flashback appears to be at least as likely to be the product of imagination as it is of memory' (Frankel, 1994).

In a preliminary briefing, the lawyer for the defence warned that the aim of experts was 'to furnish the court with scientific information that was likely to be outside the experience and knowledge of the Judge or Jury' (R v Turner, 1975 1 All ER 70). More specifically, and notwithstanding the absence of any legal onus of proof on the defence as distinct from that on the prosecution, he warned that it was necessary to establish an evidential base concerning flashbacks, and the signs of sexual abuse 'in an unmistakable and compelling way and by reference to scientific material' (R v Accused 1989 4 CRNZ 173, cited in R v CS 1993 11CRNZ 45).

Subsequently after deliberations, the defence advanced the propositions that:

- flashbacks were an involuntary process by which otherwise inaccessible implicit and traumatic memories became suddenly explicit, declarative, and narrative (van der Kolk, 1994; Weiten, 1995, pp 284-287)

- flashbacks evoke an instant arousal of the sympathetic nervous system, which typically is slow to diminish and might quickly be reactivated (cf.Rice, 1987, ch.3)

- the procedures used by the experts in the evocation of the earlier memory in the present case were in keeping with the guidelines established in New Zealand by the Doctors for Sexual Abuse Care (1996)

- the external corroboration of the reported childhood sexual abuse by the actual abuser was sufficient for the Jury to be able to tell the difference between 'believed-in fantasy and viable memory about the past' and so to distinguish between true and false allegations (Goodyear-Smith, 1996a; 1996b)

- the sign and symptom profile of the accused that emerged from his life-history was consistent with that expected from sexual abuse (Turkus, 1996), and could be differentiated from the expected reactions both to earlier negative events arising from his early hospitalisation (Robertson, 1959) as well as from those stemming from the commission of the present killing (Kruppa, 1991)

- no aspersions were cast on the character of the deceased, and there was no question but that his death was a most regrettable tragedy

- the accused was truly remorseful about the killing, but had the capacity to work toward some resolution both of that and of the earlier abuse.

The facts of the case

According to the evidence, the deceased was a middle-aged car-wrecker recluse from whom the father of the accused sometimes bought spare parts. The accused had known him just well enough to call into his small cottage one evening to arrange a lift home by car to his parents' place some 20 kms in the back country to collect some personal gear, before leaving the district to make a fresh start elsewhere. On arrival he helped to shift some timber on the section, and was invited inside for a cup of coffee before setting off for a ride home at an agreed price. There he crouched down to stoke a smouldering fire, and as he did so he felt a hand slide across his thigh from behind. At this point he turned, and caught a look in the eyes and a smile on the face of the older man that took him straight back 12 or 13 years to his earlier abuser and to the caravan in which it occured. The two men and the two situations fused, and he reacted violently as a seven year old boy with the physique now of a 20 year old man. At first he used a poker, then his fists, and then a kindling axe to resist what he perceived was the repetition of the sexual abuse, before leaving his victim fatally injured and taking off aimlessly in the car to say goodbye to his girl-friend, seriously contemplating suicide, attempting to dispose of the car, telling a cousin what he had done, and then finally on the fourth day after the offence, contacting his father and going with him to report the death and make a confession to the police. But to them he made only a slight reference to 'being taken advantage of', preferring instead to say that he acted violently to stop the man doing similar things to his sister and her child whom occasonally he met through her partner.

In between the offence and the trial he was on remand in prison, having spent the early part in the medical wing under observation because of his anger, sleeplessness, and suicidal depression. There, for the first time ever, and in response to routine initial inquiries from the prison medical doctor, he mentioned the earlier sexual abuse, and he had to be persuaded to take the subject further with the visiting prison psychiatrist and them with his lawyer. Here, it should be said that he was not suggestible and in a psychotherapeutic relationship at the time of the disclosure, as seems to have been the case with many who have made similar allegations. Nor was he an articulate and sophisticated person, with literary and dramatic interests that would either make him au fait with the phenomenon of a flashback to a repressed memory, or sufficiently astute to work out the convincing drip-feed exposure of his story via the prison authorities. But he did as suggested only with great reluctance, because he was remorseful, aware that he had killed a man who had done him no great harm, and ready to consign himself to a lifetime in prison as his due punishment. Yet the cognitive and emotional intensity of the memory was such that inadvertently, even a year later, he switched back to the first abuser and situation when talking about the second.

It cannot be said that he had repressed all memory of the original sexual assult over the intervening years between what he perceived as the two identical encounters, because he disclosed that the memory had always been with him. Instead he had resolved never to talk about the assault to anyone, and he almost succeeded. But having made the disclosure he stood by it without embellishment. For example he did not try to make capital out of the evidence given during the trial about an older cousin having himself sought treatment for the sexual abuse which he too received from the same man - a bachelor friend of their extended family who often looked after the children at week-ends as a supposedly friendly gesture to relieve the mothers when the fathers were working away in the bush, and in the present case whose close supervision of the accused was part of his punishment that followed a hiding from his father for stealing a small sum of money from home. Nor did he mention the bizarre evidence given by a Crown witness to the effect that shortly before his death, the deceased had asked his opinion on the likely consequences of his putting a hand on somebody's backside.

Personal circumstances

The accused was the eldest of five children in a cohesive and far from affluent family at one time living in a small town. He suffered a severe set-back at about he age of three in an accident at home when he ran past a stove and caught his arm in the cord of an electric jug, showering the contents of boiling water over his upper arms and chest. He was admitted to hospital, where because of the risk of infection he was isolated from all contact except a duty nurse for several months. On returning home it was some time before he bonded with the family again, and his anxiety was reflected in night terrors. But he had largely overcome the difficulty by the time he began primary school - where despite being teased by other children because of his extensive scars from the scalding, he was described by his first year teacher him as a 'cheerful bubbly boy'. However in the second year, when it is now known that he was being sexually abused, he became so violent, disorderly, and beyond control that he was referred to an educational psychologist for assessment and advice.

At the time the consensus of professional opinion was that the drop in his schoolwork and behaviour could be attributed to family pressure on him to succceed, and he was sent away to a health camp for nine weeks to relieve the supposed pressure from that quarter. Soon afterwards the family moved to a rural district where he could make a fresh start at another primary school, and without anyone else knowing it, be out of the reach of the sexual abuser. The move also meant that his father could change his job and be able to spend more time at home with him.

Subsequently the boy made a marked improvement in school work, behaviour, and sports, and in adolescence he gained entry as a day-boy to a notable college. But after making a reasonably good start there, his school performance deteriorated once more and soon he became a chronic truant. Before dropping out of college completely, he was brought to the attention of the special needs teacher, and she was convinced that he had some personal problem that he did not disclose. Soon afterwards he took a regular part-time seasonal job in a produce factory in town, and earned a good reputation from his foreman for his attendance and output despite any difficulties that arose on the production line. While he was working there he lived in town with members of his extended family but kept close contact with his home.

Back home he was highly regarded in his local rural community, known not to be a violent person, nor one with a compulsion to seek situations in which he might either test himself or obtain heightened experience through tense encounters. To the contrary he was known to a small circle as someone who avoided conflict, was wary of older males, inhibited with females, suffered claustrophobia and nightmares, had marked facial twitches, and although not unpopular, had very few close friends. It was not until he was about 20 that he had his first girl friend - and when she broke the relationship he was in despair and drinking heavily, and he threw in his job. Then he spent a few months aimlessly, until he took up his father's suggestion about making a fresh start with relatives in another part of the country. At that point he began his preparations, with the fatal consequences that have been outlined above.

A particularly tense situation arose in the proceedings when the original sexual abuser gave evidence under sub poena in the Court. There he acknowledged the sexual offences he had committed against the accused as a seven year old boy, now some 15 years before, and mentioned some as having occurred in the boy's own home while the parents were out that had not previously been disclosed. He agreed with defence counsel that a) his appearance was similar to that of the deceased, b) the physical circumstances in which the original abuse and the recent killing took place were similar, c) his sexual approach was similar to that reported of the deceased, and d) he had used threats and intimidation to prevent the accused as a seven year old boy from telling his parents what was going on. He said that recently he had pleaded guilty to representative charges against the boy, and was awaiting sentence in another Court for what he had done - (later he was given two and a half years imprisonment).

For its part the Crown accepted the evidence of the abuser, but in cross-examination challenged keenly much of that from the expert witnesses for the defence, without presenting expert evidence of its own by way of rebuttal.

In the event the Jury found the accused not guilty of murder but guilty of manslaughter, and the Judge imposed a sentence of five years imprisonment. Now the case is to return to the Court of Appeal for a ruling as to whether at the time of the killing, the accused could be considered in law even to be responsible for the acts which led to the death, while suffering a loss of control under a flashback as found by the Jury.

Whatever that particular outcome might be, immediate questions arose as to the immediate help the accused might have to ensure that he retains open to his once buried memory and its unfortunate sequalae. Were he not to be able to do this he might develop a chronic disorder of extreme stress not otherwise specified (DESNOS) (Herman, 1993b). Already there are positive indications of his move towards recovery that stemmed from the courtroom confrontation with his earlier abuser - an individualized and 'titrated' treatment situation if ever there was one that would otherwise have taken many patient therapeutic hours of imagery to construct and monitor (cf. Courtois 1996). Yet it has to be said that the outcome for the treatment of posttraumatic reactions is far from encouraging, and that he alternative of simply leaving the traumatic memory alone and giving the person support for making 'here and now' adaptations has its advocates (McFarlane & Yehuda, 1996).

Obviousy there is much here for potential abusers, parents, teachers, police, lawyers, clinical experts in psychiatry and psychology, researchers in behavioural science, the community at large, as well as antagonists on the topic of buried memories, to consider. May their interactions be more productive and beneficial in the future than in the past.

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