February 6, 2005

Pseudo-Science Shouldn't Be Used Even to Convict the Despicable

The Chattanooga Times Free Press, quoted by Injustice Busters, makes some sound observations about the trial of the despicable Father Paul Shanley:

It should be our fervent wish to protect children from sexual abuse and to see to it that those who do abuse children are punished to the fullest extent of the law. But solid evidence should back up any conviction of a person suspected of
committing such a crime.

For that reason, it is troubling to learn that a theory of so-called " repressed memories" is the basis of the prosecution of a defrocked Catholic priest in Massachusetts. Paul R. Shanley is accused of raping a boy repeatedly in the 1980s. Others originally accused Mr. Shanley as well, but they have withdrawn from the case.

This case is difficult because whether or not Mr. Shanley is guilty, he is clearly not a sympathetic figure. Officials in the Boston Archdiocese had evidence that he was in favor of sex between boys and men, but they transferred him from parish to parish. Even if it was not certain he had acted on his views, he should not have been given repeated opportunities to do so.

Nevertheless, the question before the court is whether he did act on his beliefs, not merely whether he advocated them.

His lone remaining accuser says he suppressed the memories of abuse, and they were triggered only when news accounts of the clergy sex abuse scandal in Boston appeared.

We do not suggest the accuser is making this up. He may have been abused just as he belatedly remembers. Or he may be honestly mistaken. But the sudden resurfacing of decades-old memories seems to be a shaky basis for convicting
even a man who held the disgusting views of Mr. Shanley.

The psychologist Elizabeth Loftus has the better of the argument, for which she has suffered a good deal, that the culty notion of "repressed memory" has weak scientific support and has been the basis of many injustices.

From what I've read, it appears that Shanley is a horrible human being who has publicly advocated man-boy sex, abused his trust and broken his priestly vows, and was shielded for years by the Catholic hierarchy.

But now he's a defendant in a criminal trial with one accuser left, and that one claims to have recovered memory of abuse. I question whether testimony based on "recovered memory" as discussed here and referenced here should even be admissible at trial:

In State v. Quattrocchi III, 1999 WL 284882, *8 (R.I. Super. April 26, 1999), the prosecutor in a recovered memory case argued that the Daubert factors should not be applied to the "soft science" of psychology. The Kumho Tire opinion was issued between the evidentiary hearing and the court's ruling on admissibility in that case. Noting Kumho, the court rejected the prosecutor's argument and applied the Daubert factors, with an emphasis on the general acceptance factor, to hold that recovered memory evidence was not sufficiently reliable to be admitted at trial.

The same question arises under the Kelly-Frye test that applies to certain scientific evidence in California and some other states.

In fact, the more despicable you find child sexual abuse by clergy, the more careful one must be to avoid convicting defendants based upon techniques and theories that have the same scientific credibility as, say, dowsing.

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