Five years ago in this magazine, Elizabeth Loftus and Melvin J. Guyer published a two-part article called “Who Abused Jane Doe?” (Loftus and Guyer 2002a, 2002b). It was their critical interpretation of a case study that provided alleged evidence of a repressed and then recovered memory of childhood sexual abuse, and its subject, “Jane Doe,” was not happy with their account. In February, 2003, she sued both of them, this magazine, its publisher, me, and a few others involved in the investigation for defamation, invasion of privacy, infliction of emotional distress, and fraud. She claimed twenty-one counts and causes of action within these four categories, and she wanted more than a million dollars in punitive damages and compensation for her injured feelings. The invasion of privacy claim was especially ironic, given that Loftus and Guyer never once revealed her name, and the Skeptical Inquirer and I didn’t even know what it was until she filed the lawsuit in her own name. And so, it was Jane Doe herself who told the world that her real name was Nicole Taus.

After wending its way for years through the California courts, ending with a ruling in early 2007 by the California Supreme Court, the case was finally resolved. Taus lost resoundingly on twenty of the twenty-one counts. The Skeptical Inquirer’s right to publish the articles was completely supported; Loftus, Guyer’s, and my right to write and talk about the case was given complete protection; and the Supreme Court ruled that because the defendants won the “overwhelming majority” of Taus’s claims, we were entitled to recover fees and costs. Taus thus faced a bill for $450,578.50—the cost of nearly five years of litigation and fees for the attorneys representing all the defendants she had accused. All in all, it was a sound defeat for the plaintiff and a tremendous victory for open, skeptical inquiry and free speech—with one quirk related to that lone twenty-first count. Here is the full story.

First, some background. In 1997, psychiatrist David Corwin and his colleague Erna Olafson published a case history that proponents of recovered-memory therapy quickly began using—in conversation, in scholarly writing, and in court—as proof of the existence of repressed memories. Corwin had entered Taus’s life (at that time, noted as “Jane Doe”) during a custody evaluation in the early 1980s, when child sex-abuse allegations were reaching a peak, and videotaped six-year-old Taus as she claimed that her mother physically and sexually abused her. Corwin believed her, and the mother lost custody and even visitation rights. Taus lived with her father until he became seriously ill, at which time she went to live with a foster mother. When she was seventeen, Corwin returned to interview and videotape her once again. During this encounter, she at first didn’t recall any acts of sexual abuse but eventually did. Corwin’s detailed account, and his repeated showing of her videotapes as a child and teenager at conferences, were persuasive to many mental health professionals, researchers, and of course prosecutors.

Yet Loftus and Guyer were suspicious of Corwin’s story. Using public records and newspaper clippings, they eventually located Taus’s family. After poring over thousands of pages of court records documenting the virulence of the original custody battle, including a thorough, court-ordered report by a clinical psychologist who doubted that Taus had been sexually abused (a report not mentioned by Corwin), and after interviewing several key players in the story, they became convinced that Taus’s biological mother was almost certainly innocent. When the mother learned that someone believed her after so many years, she sobbed and said, “I never thought this day would come.” It had been more than a decade since she had lost custody of her daughter.

As Loftus and Guyer were getting ready to publish their findings and interpretation of the evidence, however, Nicole Taus complained to the University of Washington, where Loftus was a professor, that her privacy was being violated by a faculty member who was investigating her story. Despite having already permitted her face to be shown and the details of her life to be publicly revealed, she pursued her complaint. University officials seized Loftus’s files, and although university regulations stipulate that all such complaints against faculty members are to be resolved within 120 days, the investigation against Loftus went on for nearly two years, during which time she was forbidden to speak or write about the case. Eventually Loftus was completely cleared of wrongdoing or ethical violations. At the University of Michigan, Mel Guyer was enduring similar harassment from his Internal Review Board, but finally he, too, was free to publish.

And so their two-part article “Who Abused Jane Doe?” appeared in the Skeptical Inquirer, along with a companion piece that I wrote describing the struggles that Loftus and Guyer had endured at their respective universities (Tavris 2002). “Who Abused Jane Doe?” offered an alternative explanation to the one proposed by the repression proponents: namely, that the child had probably not been abused at all, but that her “memories” were the result of suggestive influences on the part of her father, her stepmother, and perhaps a few mental health professionals as part of her father’s determination to gain custody of his daughter.

When Nicole Taus filed her lawsuit, the lawyers representing all the defendants hoped to get the case dismissed immediately on the grounds that Loftus and Guyer had not done anything that ordinary investigative journalists would not do. The lawyers argued that Taus’s suit was a Strategic Lawsuit Against Public Participation (SLAPP), filed in retaliation for the defendants’ protected exercise of free speech.1 Our anti-SLAPP motion alleged that the plaintiff’s suit was intended to interfere with certain constitutional rights of the defendants and the public’s interest in being informed of important issues and questions of public policy and controversial topics. Once we made our motion showing that fundamental constitutional rights were placed at risk by Taus’s suit, Taus was required to show that she had a chance of prevailing on any of her claims if they were to proceed to trial. As the case made its way through the courts, the plaintiff was found to have filed a suit that indeed infringed on our constitutional rights, that her claims lacked any likelihood of prevailing if the case went to trial, and that all of her charges were without legal foundation (Taus v. Loftus et al. 2007). The California Supreme Court dismissed all counts against the defendants but split on one single factual question involving Loftus only.

To understand this one issue, you need to know that the Court doesn’t rule on the validity of a person’s claim but rather its legality. If you sue someone for calling you “a son of a bitch,” the Court doesn’t determine whether the person actually called you a son of a bitch but whether you have a legal claim against him if it turns out to be true that he said those words. In this case, Taus’s former foster mother, who had given Loftus information about Taus’s background, attempts to reach her biological mother, and other matters, alleged that she had given Loftus this information under false pretenses. (Guyer was not involved in that interview.) The foster mother claimed that Loftus had told her she was Corwin’s supervisor, thereby gaining information that she, the foster mother, would otherwise not have revealed. In issuing its ruling, the Supreme Court had to assume this allegation was true before it could determine whether there was any legal basis for remanding the matter to trial, where a jury would decide whom to believe. For example, the courts have ruled that certain categories of investigators—police officers and reporters among them—are allowed to lie to interviewees in order to gain information. Are social scientists? Realtors? Marketers? Employers?

By a narrow majority, the Supreme Court held that one narrow, particular kind of lie can be actionable: the kind the foster mother alleged. Investigators may not pretend to have a special relationship with the target of their investigation (e.g., Corwin) in order to lower their interviewee’s (e.g., the foster mother’s) normal caution about disclosing personal matters. They may not intrude on a privileged relationship in which the subject has an expectation of privacy. Taus, said the Court, had a reasonable expectation that no one would pretend to be privy to her special relationship with Corwin—that she could trust Corwin’s supervisor (as if he had one!) as much as Corwin. Although Taus’s own lawyer explicitly informed the Court that Corwin never acted as Taus’s therapist, the Court nonetheless decided that because Corwin is a psychiatrist, he and Taus had some kind of trusting, therapist-patient-like relationship. And so they ruled that the case could go to trial to determine that one factual issue: Did Loftus lie to the foster mother to get information about Taus? But, as one of the dissenting judges wrote, “In fact, it is fairly apparent that the impetus for this litigation is not Loftus’s investigative techniques but her perceived adversarial stance toward Corwin and, derivatively, toward Taus. But by any ordinary sense, the desire to deny an investigator information based on the investigator’s viewpoint cannot be called an expectation of privacy or seclusion, and the enforcement of Taus’s preference through tort law is contrary to free academic inquiry and the First Amendment.”

Some of Loftus’s opponents have misinterpreted the Court’s ruling for their own purposes as a confirmation that Loftus lied to the foster mother. In fact, Loftus is adamant that she did no such thing. The foster mother also claimed that during the interview, when she somehow discovered that Loftus was not whom she said she was (how would this have happened if Loftus was deceiving her?), the interview turned hostile and she demanded that the tape recorder be turned off and the tape handed over. Loftus refused, she said, and so she ended the interview at once. However, as witnesses to the interview can confirm, the interview was not taped; it lasted four hours until Loftus ended it, and when it was over, the foster mother amiably posed for photographs with Loftus, who had put her arm supportively around her. What seems likely, therefore, is that the foster mother repented of her conversation with Loftus in order to make amends with Taus. The phenomenon of “source remorse” is well known to journalists and biographers.

Nonetheless, there it was: Taus facing hundreds of thousands of dollars in costs, Loftus facing a petty, but onerous, she-said/she-said trial.2 And then Taus made an offer to settle. She would drop the remaining claim against Loftus for $7,500—a pittance compared to the million she had been asking—plus an agreement by Loftus to forgo her portion of the attorneys’ fees she was otherwise entitled to receive from Taus. Accepting the offer, Loftus knew, meant that her enemies would say she was admitting that she used deceit to interview the foster mother. But accepting the offer also meant she would avoid years of potentially protracted and costly legal machinations. The foster mother, presumably wishing to remain in Taus’s good graces, might lie about how Loftus represented herself to her. Most of all, the defendants had won their biggest battle—to protect their right, and the right of journals such as the Skeptical Inquirer, to investigate case studies and publish alternate interpretations of them. So Loftus accepted the offer, and the case ended for her.

We other defendants, all of whom had been fully exonerated on all counts, pursued our right to recover legal fees and costs. Taus’s lawyer filed yet another motion, this time to decrease the amount of money that Taus was liable for, based on a subtraction of fees waived by the Loftus settlement. On October 2, 2007, a judge agreed to reduce the fees to those incurred on behalf of the remaining defendants, and as of this writing we await his decision as to the exact amount Taus will have to pay. (If it is too high, her attorney may appeal it.)

Who abused Jane Doe—and whom did she abuse? She wanted her story told her way, as everyone does; and when others disputed her version of events, she took out her anger the American way: by suing. Fortunately, this time, the result was an undeniable victory for free speech and scientific inquiry.

Notes

• In the early l990s, the California Legislature enacted into the Code of Civil Procedure the anti-SLAPP law, noting a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech. It recognized the public’s interest in encouraging participation in the significant matters of a society and was essentially a way to ensure that such participation was not suppressed through the misuse of the judicial process.
• Technically, one other defendant remains in the case; Taus also sued Harvey Shapiro, a private investigator who obtained court records and arranged for the interview with the foster mother. As of this writing, Taus’s claim against him has not been fully resolved. To our knowledge, he did nothing outside the scope of the work of ordinary private investigators.

References

• Corwin, David L., and Erna Olafson. 1997. Videotaped Discovery of a Reportedly Unrecallable Memory of Child Sexual Abuse: Comparison with a Childhood Interview Videotaped 11 Years Before. Child Maltreatment 2:91—112.
• Loftus, Elizabeth F., and Melvin J. Guyer. 2002a. Who Abused Jane Doe?: The Hazards of the Single Case Study: Part 1. Skeptical Inquirer 26(3):24—32.
• Loftus, Elizabeth F., and Melvin J. Guyer. 2002b. Who Abused Jane Doe? Part 2. Skeptical Inquirer 26(4): 37—40, 44.
• Taus v. Loftus et al., 40 Cal. 4th 683 (2007).
• Tavris, Carol. 2002. The High Cost of Skepticism. Skeptical Inquirer 26(4):41-44.

This article chronicles the tribulations noted psychologists Elizabeth Loftus and Melvin Guyer were put through for conducting the investigation that is the subject of their two-part article ”Who Abused Jane Doe?” concluding in this issue of the Skeptical Inquirer
—The Editor

In the olden days, perhaps twenty or thirty years ago, academic debates were marked by sweet discourse and the harmonious if impassioned hum of debate. (Also by sarcasm.) The rule used to be that if you disagreed with someone’s opinion or interpretations of data, you did the civilized thing-you called the person a knucklehead or an incompetent fool. Or you wrote a devastating reply explaining why the knucklehead was terminally wrong, misguided, or drunk.

That was then. Just as noise trumps silence and rage trumps courtesy, the cudgel of lawsuits to silence or cower the opposition trumps free debate. In universities across the country, lawsuits, even spurious and unsuccessful ones, have weakened the once-sacrosanct guarantees to scholars of free speech and association. Institutional Review Boards (IRBs) and Human Subjects Committees have proliferated, to protect human subjects from harm caused by unethical scientists-and to protect universities from any lawsuits that might ensue.

Of course some scientists have conducted dangerous and/or unethical research. I do not disapprove of efforts to assure the safety of subjects any more than I do of lawsuits to punish those who plagiarize, commit libel or fraud, or maliciously destroy reputations. But all institutionalized efforts to correct one problem will inevitably create other problems. Today, many of the IRBs originally established to protect subjects have instituted so many byzantine restrictions and rules that even good scientists cannot do their work. Some have become fiefdoms of power-free to make decisions based on caprice, personal vendettas, or self-interest, and free to strangle research that might prove too provocative, controversial, or politically sensitive.

The growing power of IRBs in academia, along with the increasing number of restrictions on free speech in the politically correct name of “speech codes” and “conduct codes” (described so well by Alan Kors and Harvey Silverglate in The Shadow University), is perilous for independent scientific inquiry. For years, the skeptical movement, which had its birth in the domain of philosophy and the study of logic, has tended to regard failures of skeptical and scientific thinking as failures of reasoning-something amiss in human cognition. The underlying assumption has been that if we can only get people to think straight, junk their cognitive biases, and understand the basic principles and methods of science, pseudoscientific reasoning will become as vestigial to the mind as the appendix is to the body.

Perhaps, but the skeptical movement needs also to focus its energies on the growing institutional barriers to free inquiry, and the efforts to silence those whose inquiries make waves. The story of what happened to Elizabeth Loftus and Mel Guyer when they set out to investigate the case of Jane Doe is itself a case study of the high cost of skepticism.¹ The two demonstrated exactly the kind of openminded spirit of discovery that is at the heart of the skeptical movement. For their pains, they found themselves in an Orwellian nightmare.

The irony is that if Loftus and Guyer were journalists, they would have done precisely the same investigation unhampered and fully supported by their employer. But because they are university professors, they were subjected to a secret, shadowy investigation of their legal right to do what good reporters do every day. And their respective universities, far from supporting their intellectual inquiries and their tenured (indeed American) right to free speech, obstructed and harassed them. Some of these obstructionist efforts linger in the articles they wrote in this magazine [”Who Abused Jane Doe?” May/June and July/August 2002]. If a writer for, say, The New Yorker or The Atlantic had conducted such an investigation, you would know the city and state of all of the individuals interviewed, their names (unless they requested anonymity), the data bases the investigators used to gather information-in short, you would know the details. But Loftus feels she is still not at liberty to provide these details in print, and that her university is still looking over her shoulder.

Who Abused Loftus and Guyer?

After reading David Corwin’s account of Jane Doe in the journal Child Maltreatment in 1997, Loftus and Guyer decided to examine his alleged evidence of a recovered memory of sexual abuse. The stakes were high for their work as scholars, teachers, and expert witnesses, because the case was already being used in court as evidence that recovered memories of sexual abuse in childhood are reliable.

They began by looking into documents in the public record. They found a public court case of “Jane Doe” who fit the description in Corwin’s article, but the court records differed from Corwin’s account in significant ways. They eventually met Jane Doe’s mother, and became convinced that she had been falsely accused many years before, leading to the loss of custody of her daughter. They decided that this was a story worth pursuing and publishing, ideally in a popular magazine.

In the spring of 1998, Guyer contacted the administrator of the University of Michigan’s IRB to make sure the committee shared his view that he did not need their approval because he was not doing “research” but rather “intellectual criticism, commentary on a forensic issue, and an historical/journalistic endeavor.” The administrator and the then-chair of the IRB, Sumer Pek, agreed; Guyer’s investigation would be exempt from IRB oversight.

A month later Guyer received a letter, with no intervening warning that anything was amiss, telling him that his project was not exempt; in fact, that it was assigned a “disapproval” status; and that the IRB was recommending to the Office of the Vice President of Research that he, personally, be reprimanded.

The Catholic Church has given up limbo, but not, apparently, university IRBs. Appeals, protests, and exchanges ensued for nearly a year. In March 1999, Guyer received a letter from the new chair of the IRB, Stephen Gebarski, telling him that his work was indeed exempt from IRB consideration because it was not “human subjects research.” The OVP Research office concluded that there was no basis for a recommendation of “reprimand.” Guyer was given no explanation of the year-long delay, although Gebarski did apologize for any “misunderstandings” that might have occurred that year. He added that he was personally “[looking] forward to seeing your interesting historical journalistic work published in the appropriate forum.”

Encouraged by the green light given to Guyer at Michigan, the two pursued their investigation. Then the University of Washington received an e-mail from Jane Doe, complaining that her privacy was being violated. Considering that David Corwin had published his account of her life and was traveling around the country showing videotapes of Jane at six and seventeen, and considering that no one was making her story public (and hence violating her “privacy”) except Jane herself and Corwin, this complaint should have been recognized as a cry from a troubled and vulnerable young woman, and set aside. Instead, it was enough to set in motion a series of endlessly shifting charges against Elizabeth Loftus, a scientist of international stature who had brought luster and prestige to her university for more than twenty-five years. The “investigation” against her lasted more than twenty-one months, in spite of the University’s own statute of limitations-thirty days for the selection of a committee and ninety days for its deliberations-for bringing all such investigations to a conclusion.

On September 30, 1999, having given Loftus fifteen minutes’ advance notice by telephone, John Slattery of the University of Washington’s “Office of Scientific Integrity” arrived in Loftus’s office, along with the chair of the psychology department, and seized her files. She asked Slattery what the charges against her were. It took him five weeks to respond, and when he did he had transformed Jane Doe’s “privacy” complaint into an investigation of “possible violations of human subjects research.” Loftus later learned that lawyers in another state, who had retained Corwin as their defense expert, were trying to subpoena her personnel file in hopes of finding something there to discredit her as an expert witness for the plaintiffs. Because the University, in the face of her objection, was going forward in complying with this improper subpoena, she was forced to retain her own lawyer to stop them. (Because it was from out of state, it had no force of law or validity in Washington.)

In February 2000, Loftus and her lawyer dislodged some documents from the University’s investigation, and found among them a “Confidential Memo” written by Stanley Berent, a neuropsychologist who was on the IRB at the University of Michigan - Guyer’s IRB. This memo had played a crucial role in the decision to reprimand Guyer and deny him the right to continue his work, yet Guyer was never even told it existed. Berent’s memo, Guyer says, “was the harshest document, filled with false innuendo, malicious insinuations, and outright falsities. Keeping it secret from me denied me the opportunity to correct its mischaracterizations.” To this day Guyer has been unable to get his own university to provide him with a copy of this memo, even after repeated requests under the Freedom of Information Act. Yet a University of Michigan lawyer was happy to send it directly to the investigating committee at the University of Washington, to be used against Loftus. This was the modus operandi at both universities: keep the charges secret, keep changing the charges, keep the meetings secret, keep the accused in the dark.

In the spring of 2001, the three-member investigating committee, consisting of two clinicians and one sociologist, concluded that Loftus was not guilty of the charge of “scholarly misconduct.” But the two clinicians recommended to the dean, David Hodge, that she nonetheless be reprimanded and subjected to a program of remedial education on professional ethics. They instructed Loftus not to publish data obtained by methods they regarded as inconsistent with the “ethical principals” [sic] of psychologists-that is, the methods of a journalistic investigation.

On July 3, 2001, one year and nine months after the University of Washington seized her files, and one month after Loftus won the prestigious William James award from the American Psychological Society for her decades of scientific research [see Skeptical Inquirer, November/December 2001], Dean Hodge wrote Loftus a letter of exoneration. Her work, he said, “does not constitute research involving human subjects.” She did not commit ethical violations or deviate from accepted research practices. She was not guilty of any misconduct. She would not have to undergo remedial education on how to conduct research.

But, oh, one more thing: She was not to contact Jane Doe’s mother again or interview anyone else involved in the case without advance approval. Such meetings, he said, would constitute “human subjects research requiring Human Subjects Committee approval.”

The Enemy Within

And there it stands: Loftus and Guyer won; their investigation was published in these pages; but at tremendous cost. Loftus still feels bitter at the dean’s restrictions, which she and Guyer regard as blatant violations of her First Amendment rights. Guyer is still outraged by Stanley Berent’s peculiar and devious memo, not knowing to whom else it was improperly sent or who might next use its innuendos and lies against him.

Of course, their investigation of Corwin’s claims was bound to enflame passions: those of Jane Doe herself, an unhappy young woman whose life has been filled with conflict and loss; those of David Corwin, who has publicly promoted his case study as a personal vindication and a prototype of how recovered memories should be studied; and those of the many clinicians who still cling to the discredited concept of repressed memories. Loftus and Guyer knew they had enemies. They hadn't known that some of them were at their own universities, and that the shields of tenure and the First Amendment would not be sufficient protection.

"I don't see how you can write anything of value,” the great anthropologist Marvin Harris told me years ago, “if you don't offend someone.” Skeptical inquiry is endangered when those who are offended or threatened by knowledge are able to silence those who have something valuable to say. The lawsuit path is crowded because those who take it face no negative consequences: The worst that can happen to them is nothing at all-their target doesn't budge. But often the targets of these threats, weary of being harassed, unable to pay the costs of self-defense, frightened at the prospect of losing their reputations, and unsupported by their publisher or university, do back down. The offending passage is deleted, funny but sarcastic remarks toned down, safer topics chosen, documented evidence of the target’s malfeasance removed.

That is why we must be all the more grateful for the courage, persistence, and integrity of those skeptical inquirers who are still willing to “offend” in the pursuit of truth and justice, heroes like Elizabeth Loftus and Mel Guyer.

Postscript

Institutional Review Boards misuse their power not only when they impose excessive and unnecessary restrictions on free speech in the name of protecting subjects; but also when financial interests influence their approval of research that is potentially harmful to subjects. Consider this irony: Stanley Berent’s confidential memo excoriated Mel Guyer for his alleged scientific and ethical lapses-among them, failing to get Jane Doe’s consent to call her mother, who was eager to tell them her side of the story; failing to enlist the “ongoing cooperation” of Corwin(!), as if Corwin would have granted it; and failing to consider whether this “research” might have “a negative effect upon the dignity and welfare of the participant.” Yet at the very same time, Berent got permission from his own IRB (of which he was a member) to conduct research with, in my view, far graver implications for the dignity and welfare of his subjects.

The Michigan IRB had granted approval for Berent and his associate James Albers to retrieve medical records of railroad workers who had been exposed to dangerous solvents. The workers were suing their employer, CSX Transportation Inc., and Dow Chemical, claiming that exposure had caused brain damage and other medical problems. Berent and Albers, hired by CSX and Dow, examined the medical records - without the workers’ knowledge or consent - and concluded that there was no connection between the workers’ medical problems and their exposure to solvents.

An investigation conducted by the University of Michigan found no conflict of interest in Berent and Albers’ behavior and no need to obtain the workers’ informed consent, because Berent and Albers’ conclusions about the workers were based on “existing non-research data.” (Just the kind of data Loftus and Guyer used.) However, the Office of Human Research Protections at the U.S. Department of Health and Human Services is continuing its investigation of Berent and Albers’ potential conflict of interest. Berent has taken early retirement.

Note

1. In the interests of full disclosure, I am a friend of both Loftus and Guyer, and I write this essay as a concerned observer, not as a disinterested reporter. Their experiences described here are accurate, but I did not interview administrators or investigators to get “their side.”