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