BRENTWOOD – Prosecutors began presenting testimony this past week that they hope will convince a superior court judge to clear the way for repressed memories of sexual abuse to be admissible as court evidence.
Under a 1996 New Hampshire Supreme Court ruling called the Hungerford Law, state courts do not recognize repressed memories as reliable. Hungerford requires certain criteria be met for those memories to be used as testimony.
If Assistant Rockingham County Attorney Brad Bolton meets those criteria, he’ll have the go-ahead to try an ongoing sexual abuse case against Exeter resident Philip Bourgelais.
A grand jury indicted Bourgelais in 2002 on 18 felony counts of aggravated sexual assault, indecent exposure and lewdness as a result of memories recovered by his biological daughter. An indictment is not an indication of guilt; rather, a grand jury found sufficient evidence to warrant a trial.
This past week’s hearing has much broader scope.
Bolton also hopes Superior Court Judge Tina Nadeau will rule that the science has changed since Hungerford, and modify the law’s criteria to make it easier to enter recovered memories in court.
“It’s an overwhelming responsibility to make sure only good science gets put before juries,” said Bourgelais’ defense attorney, Andrew Cotrupi of Hampton. “But I’m optimistic.”
On the other hand, so is the prosecution.
“I think we have a decent shot at getting the standard changed,” Bolton said.
The Hungerford Law
In 1996, in the state of New Hampshire vs. Joel Hungerford, the Supreme Court ruled the study of repressed memories should be taken on a case-by-case basis, and established eight criteria for admissibility.
Four concern the reliability of the science.
The other four are specific to the individual whose memories are in question. They cover the age at which the alleged abuse happened, the amount of time lapsed before the memories were recovered, and the circumstances around the recovery.
In the 1996 Hungerford case, experts testified on both sides of the inexact, and emerging, science of memory recovery.
One of them, Dan Brown, a Massachusetts psychologist, this past week returned to the court as an expert witness for the prosecution. Brown claims the science has caught up to the court’s standards.
Brown is a highly credentialed psychologist and educator who has authored several textbooks and articles in this field. He also served as an expert for repressed trauma memories on the Yugoslav war crimes tribunal in The Hague.
He led the court through a two-day presentation on “the nature of memory.”
“Studies show there’s no significant decrease in accuracy because (a memory) was repressed,” he said.
Specific to the criteria addressed in the state’s original Hungerford ruling, Brown made several points.
One is that when the Hungerford case was tried, there were just 12 relevant clinical studies. Now, there are about 85, he said.
During his presentation, Brown addressed the methodology and results of each study, hoping to show their validity.
Many of those studies support the accuracy of specific recovered memories with corroborative evidence – for example, a witness to the abuse, or a videotaped record made by the abuser.
Brown also said the victims in the Hungerford case had recovered their memories while in memory-retrieval therapy, a specialized – and, some say, unproven – type of therapy that targets repressed memories. Critics say this therapy allows for the possibility of false memories to be implanted.
Not so for Bourgelais’ daughter, Brown said.
He reviewed her medical and psychological records and found what he sees as corroboration – as a child, she told a therapist about a nonspecific memory of her accuser climbing into bed with her. Years later, when she began to recover more specific memories, she was able to parse out the details of that memory into one of abuse.
Brown also tested her inclination toward suggestibility to rule out the possibility of false memories being implanted by other people, and for dissociative tendencies – her ability to compartmentalize, essentially locking traumatic memories away.
At the time of Hungerford, standardized testing was inadequate in both these areas, Brown said.
“I think this is a very different situation,” he said, adding the maturity of the science has changed, and those studies challenged in Hungerford have been proven since then.
“I think the court is going to look at the underlying studies of the scientific community to see what they say,” Bolton said. “It’s not going to listen to a ‘He said, she said’ between experts.”
In the opposing camp are several scholars who also testified in the original Hungerford case and who refute Brown’s claims. They are equally credentialed and equally confident about their interpretation of the studies he cited.
The defense is trying to prove that Brown and his supporters are the minority in the professional medical world – that memory recovery is still an inaccurate, fledgling science.
“How do you try a case against someone who believes they’ve recovered a repressed memory?” Cotrupi asked. “They genuinely believe what they’re feeling. They’re not lying. But that doesn’t mean what they remember is true.”
Hungerford was challenged unsuccessfully earlier this year in Belknap County. Similar laws exist in other states, and repressed memories have been in the news recently thanks to the Catholic Church’s abuse scandal.
Now Cotrupi’s client, Bourgelais, finds himself defending not only his own innocence, but a state law and an entire psychological philosophy, Cotrupi said.
“His future could depend upon an interpretation of what science can and can’t tell us about the human mind,” he said.
To that end, when the trial resumes in September, Cotrupi will call his own experts to testify in opposition to Brown.
“It’s going to be interesting,” he said.
Throughout the two-day hearing, Bourgelais sat quietly beside his attorney. His family clustered behind him in the audience.
His accuser’s family sat across the aisle, listening intently to the detailed testimony.
Judge Nadeau asked Brown to repeat himself on a few occasions, taking notes throughout the presentation.
Cotrupi made frequent objections to Brown’s testimony; more often than not, Nadeau overruled the objections.
Following the hearing Wednesday, Cotrupi remained hopeful.
“We’re not done yet,” he said.
The Bourgelais Hungerford hearing is scheduled to continue Sept. 7, 8 and 10 at the Rockingham County Courthouse.
If the prosecution convinces Nadeau that the science of memory recovery is measurably reliable, it can focus on preparing the case that necessitated this legal challenge in the first place.
At the center of it all is Bourgelais’ daughter, now a teenager.
“She’s been through a lot,” Bolton said. “Not just what we’re going to hear about in this case. She’s really a remarkable person, and I have a lot of respect for her.”
When the court adjourned this past week after the second day of testimony, she stood in the lobby with her mother beside her.
Her mother said she hoped the law would be changed to allow her daughter, and victims like her, to find justice for what was done to them.
“I hope that when this hearing begins again, the mothers of other victims will sit behind my daughter in that courtroom to send a message and show their support for my daughter and for changing the law,” she said. “This isn’t just for my daughter. This is for a lot of people who have been hurt.”
“We believe the victim in this case was subjected to some pretty serious abuse as a child,” he said. “We think she deserves her day in court, and we’re going to work to get her that day.”