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

Neil D. Brick

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 http://replay.waybackmachine.org/20030308103757/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 http://www.raven1.net/mcf/loftus-lawsuit.htm

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? http://community.seattletimes.nwsource.com/archive/?date=20030606&slug=corwin06

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.

http://community.seattletimes.nwsource.com/archive/?date=20030317&slug=loftus170

Loftus, E & Guyer M. (2002). Who abused Jane Doe? The hazards of the single case history: Part I and Part II  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 http://www.astraeasweb.net/politics/loftus.html

Stricker, G. (1982). Ethical issues in psychotherapy research. Rosenbaum, M. (Ed.). (1982). Ethics and values in psychotherapy. New York: Free Press. (pp. 403 – 424)