from more articles on Elizabeth Loftus and the memory debate,

see http://ritualabuse.us/research/

The Alleged Ethical Violations of Elizabeth Loftus in the Case of Jane Doe

Neil D. Brick MA - June 2003

author contact e-mail address smartnews@aol.com

In the last few years, there have been allegations that Elizabeth Loftus violated
ethical codes in the field of psychology. (Al-Kurdi, 1998; Notes from the
controversy ethics complaints filed against prominent FMSF board member APA
declines to investigate). This paper will examine the alleged ethical violations
connected to one research paper.

In 1997, David Corwin published an article in the May 1997 Child Maltreatment
Issue “Videotaped discovery of a reportedly unrecallable memory of child sexual
abuse: comparison with a childhood interview videotaped 11 years before.” The
woman named as Jane Doe, had agreed to this publication of the article of her case
with Corwin. Loftus, then with the University of Washington and Melvin Guyer, with
the University of Michigan and a private investigator ascertained the real
identity of Jane Doe. They interviewed her mother, brother, stepmother and foster
mother. The investigator also tried to contact Jane Doe but failed. In May and
July 2001, two articles in the Skeptical Inquirer titled “Who abused Jane Doe?”
were published by Loftus and Guyer. Loftus and Guyer did not contact Corwin or
Jane for their consent to confirm her identity or to talk to her caregivers.
Loftus also did not respond to the University of Washington’s Institutional Review
Board (IRB) in response to their questions about her research of Jane Doe. This
was because Loftus claimed Michigan’s IRB had given them permission to proceed
with the research. Corwin contacted the University of Michigan’s IRB and was told
that they had no record of approval for Guyer on this case. The University had
decided that the study didn’t come within its scope. Corwin claims this is not
permission to go ahead, but a caution that the IRB is not giving guidance or
approval, and that the IRB is not forbidding the researcher from deciding on the
prudence of whether to proceed or not. Approval at one institution does not
provide approval for another institution. (Corwin, 2003) Even if Guyer did have
approval, which he did not, this did not give Loftus approval without a prior
agreement to do this research.

Loftus’ alleged violations of ethics darkened Loftus’ relationship with the

University of Washington (UW). Her colleagues there questioned the methods she had
used in her challenge of Corwin’s work. University officials began a 21-month
investigation of Loftus’ research on this case. David Hodge, Dean at UW’s College
of Arts and Sciences stated that university rules for research on human subjects
were primarily written for medical experimentation. John Slattery, director of the
UW’s Office of Scholarly Integrity in 1997 stated that Loftus’ would have had to
seek UW’s permission to interview people and probably would have been required to
give UW’s IRB a list of questions being asked and a form explaining the risks of
being interviewed. She probably would have been required to ask Corwin for
permission to interview Jane and review records. But Loftus believes she is
justified in exposing Jane’s identity. She believes that the secrecy rules used to
protect patients or research subjects should not be used to hide the truth. In the
middle of the investigation, Loftus called Corwin. Corwin told Loftus that Jane
wanted to communicate with Loftus through him. Jane told the University of
Washington’s officials that she disagreed with Loftus’ finding her mother and her
stepmother for interviews. Loftus also admitted befriending Jane’s biological
mother. Loftus admits she was largely motivated by her desire to unite mother and
daughter (Jane). Loftus was cleared of wrongdoing by the UW committee, but the
committee required her to get the permission of the IRB before talking to Jane’s
mother again. The committee also wanted Loftus to take an ethics’ class. After
this, Loftus left UW for the University of California, Irvine. (Kelleher, 2003).

In this particular case, it appears Loftus may have violated at least three
ethical codes, research subject confidentiality, informed consent and dual
relationships. First I will look at confidentiality. In the “Ethical Principles of
Psychologists” adopted by the APA’s Council of Representatives in 1981, it states
in Principle 5 - Confidentiality that psychologists need to respect the
confidentiality of information they have obtained in their course of their work.
Psychologists are only allowed to reveal this information with the consent of the
person or their legal representative, with the exception of where this could cause
a clear danger to the person or others. Under Section B. it further states that
psychologists that present personal information obtained during their professional
work need to get adequate prior consent or adequately disguise the information.
(Keith-Spiegel & Koocher, 1985) It appears that Loftus did not get prior consent
or adequately disguise the information.

In the 1992 APA ethics code, the guidelines for disclosure of information are that
psychologists are only allowed to disclose confidential information without the
individual’s consent in the following cases, 1) to help provide the client
services, 2) to get appropriate professional consultations, 3) to protect the
client or others from harm and 4) to get payment for the services provided, and
disclosure is limited to the minimum necessary to do this. (Corey, Corey, &
Callanan, 1997) Loftus’ excuse for violating confidentiality was to expose the
truth, but this does not fall under one of the APA’s guidelines for violating
confidentiality. However, scientific merit and ethical issues may sometimes
conflict. A researcher may deem it necessary to violate the confidentiality of a
subject to improve their data to help others. But with sensitive and advance
planning, ethical problems can be minimized. Psychologists are responsible to seek
advice whenever scientific values may cause a conflict and compromise the APA’s
Ethical Principles. The investigator is also responsible to remove any negative
consequences as a result of research-related participation (Keith-Spiegel &
Koocher, 1985).

Loftus is facing an impending lawsuit by Jane Doe (Nicole Taus) in Solano County,
California. Loftus and several others are being accused of defamation, libel per
se, negligent and intentional infliction of emotional invasion of privacy,
distress and damages. Taus alleges that Loftus’ research disclosed her private
information and revealed her identity. Taus lawsuits claims this has subjected her
and her family to additional emotional distress from past events, that Loftus and
Guyer didn’t conduct or plan their research with regard for her safety and welfare
and that procedures were not in place for the researchers or Taus herself to watch
the project and report any possible problems. Taus also states that Loftus and
Guyer purposefully mischaracterized the records and information they received and
reviewed. Loftus in her defense claims she always called Taus Jane Doe in her
publication and this attack is an attempt to stifle her freedom of speech.
(Claridad, 2003) If Taus’ allegations are true, it appears that Loftus did not
sufficiently remove the negative consequences of her research.

The APA’s ethical principles address confidentiality in relation to research

ethics and research conduct. When discussing confidentiality, there are several
ethical parallels between the client-therapist relationship and the participant-
researcher relationship. The differences between the two can cause additional
problems for the research psychologist. Therapy clients usually realize they are
receiving services. Research subjects may not always know this. The goal of
therapy is healing the client. The goal of research is the dissemination of
information. The therapist, due the close client-therapist relationship, would
probably have a better feel of what would be harmful to the client than the
researcher would. The research subject is less well known to the researcher, due
to the formal, superficial nature of research. According to the APA’s Ethical
Principles, information obtained about a research participant during research must
be kept confidential unless an agreement has been made in advance. (Keith-Spiegel
& Koocher, 1985)

In Loftus’ actual article, “Who Abused Jane Doe?” family names were not stated,
but several details were given that could break confidentiality. The article
mentions that Jane Does’ dad and step mother were married on 12/30/83. The
researchers also mention contacting Edwin Carlson, M.D., director of an emergency
room at one of the hospitals Jane was taken to. It is easy to ascertain Jane’s age
from Loftus’ article. She mentions Jane was five in 1984. There is also a
discussion about a custody case describing Jane’s having burns on her fingers and
hands. (Loftus & Guyer 2002) This and other details in the article would make it
relatively easy for a researcher to ascertain Jane’s identity.

Loftus in “Who Abused Jane Doe?” also discusses the ethics of her paper. She
believes it is ethical to examine an original case study. Case studies should be
open to peer review and their results should be repeatable. She believes that
others are obligated to examine the data as long as this can be done without
causing undue harm. She states that even though she had the mother’s permission to
talk to Jane Doe, she did not due to the fact that it might be upsetting to Jane
Doe and that Jane Doe’s beliefs may have been contaminated. (Loftus & Guyer 2002)
The idea of deleting or not even examining some data due to its possible
contamination, while simply accepting other people’s testimony as valid data is a
separate ethical issue. Psychologists should never suppress data that does not
confirm their result. (Keith-Spiegel & Koocher, 1985)

The Nuremberg Code of 1946 discusses informed consent issues. It states that
research participants should be fully informed of the research they are involved
in order to make an enlightened decision as whether to participate or not in the
research study. A research subject’s voluntary consent is essential. An
experimental subject should know the length of the experiment, the reason for the
experiment, the purpose of the experiment, how it will be conducted, all hazards
and inconveniences it may cause and the effects upon themselves of their
participation in the experiment. (Keith-Spiegel & Koocher, 1985) It is very
unlikely that Jane Doe gave informed consent of any sort to Loftus and Guyer, nor
is it likely was she informed of any of the above criteria.

Stricker defines informed consent as a subject’s agreeing to participate in

research after receiving an explanation of the research and its risks. The
elements of informed consent include competency, voluntariness and knowledge. One
issue in research concerns existing records that were collected for clinical or
administrative purposes. The utility of this data for research may become apparent
later. The patient may have given initial consent for this data to be collected,
but they probably didn’t give consent for the data to be used for research. Many
records may be old, and a patient’s permission would be difficult to obtain. In
these cases, retaining patient anonymity is crucial. Permission should be gotten
from a person acting on the patient’s behalf, such as the institution’s review
board or the institution’s administrator. The data should not be used in any way
beyond that for which permission was granted. (Stricker, 1982) Jane Doe gave
consent to the initial study, but she apparently did not give consent for the
second study. Loftus admits she could have contacted Jane Doe to interview her,
but chose not to do so. As previously mentioned, Loftus did not call Corwin until
the middle of her research of the Jane Doe case. As previously mentioned, Loftus
also admitted to befriending Jane’s biological mother. Loftus also admitted she
was largely motivated by her desire to unite mother and daughter (Jane). Dual
relationships are defined as having two or more roles with a client at the same
time. I will expand this definition to include researchers having two or more
relationships with their research subjects. Some writers feel dual relationships
are not always harmful to clients. Others believe that psychologists may
rationalize the need for dual relationships and not see the potential for harm. A
boundary violation is a serious breach that may hurt a client. A boundary crossing
may occur when one moves away from commonly accepted practices. Behaviors that
stretch a boundary may become a problem if this blurs professional boundaries. In
this case, there is a potential for harm. The important thing is to make sure
boundary crossings do not become boundary violations. Role blending occurs when a
professional has two roles, such as teacher and supervisor. When one role blends,
it is important to maintain healthy boundaries, get the informed consent of
clients and discuss the risks and benefits of role blending, consult with
professionals to resolve problems, document dual relationships in clinical notes
and if necessary refer clients. (Corey, Corey, & Callanan, 1997)

Loftus obviously made a boundary crossing when she moved from the role of
researcher to friend. Loftus’ objectivity may also have been diminished by her
friendship with Jane’s mother. Also, could Loftus’ desire to unite mother and
daughter make her biased to the mother’s perspective? If it is unhealthy for a
psychologist to become friends with a client, then should a researcher become
friends with one of their subjects? Of course, the client-therapist relationship
is different from a research relationship in several ways. One, a therapist needs
to maintain a certain distance to watch transference and countertransference
issues (though some might debate the length of this distance.) Two, a therapist
may not need to be as objective as a researcher when trying to come to an
objective conclusion about the data or clients they are studying. Three, the
researcher is merely observing the subject, the therapist is attempting to change
the client or help the client change. So, could a research subject be harmed the
same way a therapist’s patient could? Could the research subject and the research
results be harmed by a dual relationship or boundary crossing?

Some laboratory ethics don’t translate well to research studies outside the
laboratory. New ethical dilemmas may occur outside the laboratory. Social
psychologists use what are called non-reactive methods when research subjects are
not aware they are being observed. This would preclude advance informed consent
and voluntary contracts. People may be observed in a social setting or a contrived
(changed) setting. The APA ethical principles allow for minimal-risk research only
without consent under these conditions. Yet the definition of minimal-risk may be
hard to define, since the invasion of privacy and deception may be involved. Both
of these may be considered sufficient conditions to cause risk. Ethical problems
in these cases may be minimized if the data cannot be linked to those observed.
When a participant believes they are in a private setting, such as their own
homes, added ethical issues arise when an experimenter surreptitiously intrudes
into these settings. The onus is on the researcher to work under conditions that
engage in compassionate, sensitive work that provides accurate data. The
researcher must also be sure the group or subject has not been harmed due to being
studied. (Keith-Spiegel & Koocher, 1985) A case could be made that due to the
breach of confidentiality and intrusion into Jane Doe’s private life and the life
of her family, Jane’s informed consent before the research of this case would be
ethically mandated. Jane also alleges she was harmed by the research. As mentioned
before, it is the researcher’s ethical responsibility to ensure such harm does not
occur.

In conclusion, I believe Loftus made several ethical breaches during her research
and when publishing her study. The right to freedom of speech and academic debate
does not allow for the kind of ethical breaches that were made. The violating of
Jane Doe’s confidentiality without her written consent around such a sensitive
issue appears to have been unnecessary and inappropriate. Loftus’ case study will
not save anyone’s life. Corwin’s case study may be used in court, but defense
attorneys always have the opportunity to bring many other studies and additional
physical evidence to a trial. Furthermore, discussing such a sensitive issue
publicly without a person’s consent appears to be extremely insensitive. There may
have been other ways to contradict Corwin’s case study that would not have
necessitated publishing extremely personal details about Jane without her
permission. The fact that Jane neither was fully informed of the research, nor did
she give consent to Loftus’ research, shows that Loftus’ may have violated the
Nuremberg Code of ethics about informed consent. The hazards and inconveniences
the research caused Jane were not well mediated. Loftus admits having a dual
relationship with Jane’s mother. This shows poor judgement on her part. Her reason
of wanting to unite the mother with Jane is not strong enough to make up for the
possible damage that could have been done due to her dual relationship with the
mother. A referral to a more appropriate psychologist would have been more in
order. This dual relationship may have also destroyed Loftus’ impartiality in the
case, possibly further weakening her research. It appears that getting the
information out and fighting the cause were more important to Loftus than the
people involved in the research. In a sense, the ends justified the means. Ethical
principles can never be fulfilled in this way.

References

Al-Kurdi, H. (1998). Messing with our minds. Retrieved April 7, 1999 from
http://www.towardfreedom.com/may98/messing.htm

Claridad, J. (2003) UCI professor faces pending lawsuit - controversial

psychologist is accused of libel and invasion of privacy by alleged abuse victim
Retrieved April 9, 2003 from http://horus.vcsa.uci.edu/article.php?id=915

Corey, G., Corey, M. & Callanan, P. (1997). Issues and ethics in the helping
professions. Belmont, CA: Wadsworth Publishing.

Corwin, D. L. (2003) Unrecallable memory: Who’s twisting the truth? Retrieved June
9. 2003 from http://seattletimes.nwsource.com/cgi-
bin/PrintStory.pl?document_id=134917750&zsection_id=268883724&slug=corwin06&date=2
0030606

Keith-Spiegel, P., & Koocher, G. P. (1985). Ethics in psychology: Professional

standards and cases (1st ed.). New York, NY: McGraw-Hill, Inc.

Kelleher, S. (2003). Professor questions study, then others question her.

Retrieved June 9, 2003 from
http://seattletimes.nwsource.com/html/education/134654818_loftus170.html

Loftus, E & Guyer M. (2002). Who abused Jane Doe? The hazards of the single case
history: Part I and Part II. Retrieved June 15, 2003 from
http://faculty.washington.edu/eloftus/Articles/JaneDoe.htm Originally published in
Skeptical Inquirer 2002, 26, #3, pp 24-32 (Part I)

Notes from the controversy ethics complaints filed against prominent FMSF board
member APA declines to investigate (date unknown) Retrieved August 13, 1999 from
http://fmsf.net/apa-complaint.shtml

Stricker, G. (1982). Ethical issues in psychotherapy research. Rosenbaum, M.

(Ed.). (1982). Ethics and values in psychotherapy. New York: Free Press. (pp. 403
- 424)