Transcript
The Collected Works of Dorothy Tennov
Chapter XI — The Verdict
he highly esteemed Judge Benjamin Blackmore was in his mid-seventies at the time of the Young trial. He reviewed the evidence with great care, especially the evidence concerning Love Two. It was, in his estimation, at the heart of the matter. Peter Young, he concluded, was innocent, because he had been led down the garden path by the establishment voices of his profession. It had been demonstrated through the testimony of a dozen witnesses that the field of psychotherapy was neither scientific nor honest. Furthermore, although it was 20 years since Browne’s book was published, the psychotherapy professions had not taken it up with the seriousness that Judge Blackmore’s own research had convinced him it deserved. The reasons for this neglect lay in outmoded academic traditions and in the politics of finance. Judge Blackmore was forced to fault the profession itself, not the practitioner. The rest of this chapter contains Judge Blackmore’s thoughts and opinions about how he arrived at his verdict in the Young case, as he wrote them out in his private journal. From Judge Blackmore’s journal:
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hese people were ready to put an unusual case before me. In the course of those weeks, I was presented with a great deal of testimony. Unlike so many other cases, divergent voices in the end presented a unified theme. Some of what I heard may have seemed irrelevant to the case, but I acted in accordance with the fact that in 1993 the United States Supreme Court called on federal judges to examine for themselves the underlying methodology of scientific testimony rather than simply asking whether it was accepted by the current scientific community. In other words, judges should not trust the word of experts in situations of muddled science and conflicting data reports. We were, instead, encouraged to listen to the data, note the possible motives, and consider a range of possible explanations. I listened to interested parties in and out of the courtroom and did an uncommon amount of outside reading. I found that, in the core of the case against Peter Young, a matter of superficial controversy overlay deep accord. I am sorry if it turns out that I have made the wrong judgment. I took many factors into account and did the best I knew. I hope that the presentation of this case in all its complexity will contribute to justice. I had once read a reference to the work of Professor Ruth Payne, wife of the defendant. She presented an anthropological perspective on infant care through analysis of the behavior of the caretakers of infants, especially mothers. Because of the custody cases that come before us, it is important for judges to know about infant-caretaker bonding. Payne had discovered certain aspects of caregiver behaviors that predicted later childcare actions, information that proved especially useful in cases in which custody involved a very young child. The behavior (a back and forth rocking movement combined with motherese, the “baby talk” elicited by the presence of an infant) was exhibited in almost all of the natural mothers tested, about a quarter of fathers, and to varying degrees by other female caretakers. The behavior of stepparents was especially important. Payne’s work supports a new movement in judicial circles to take seriously the data from biological psychologists and anthropologists. The theory was that, in the course of evolutionary development, organisms that survive to pass on their genetic material to succeeding generations show behavioral adaptations that serve to protect their hereditary material relative to that of competitors. They cite the well-known behavior of the male lions and some primates that kill off the offspring from other matings. Although most stepparents do not kill or injure their spouses’ children from a previous union, the psychologists uncovered rather frightening data that stepparents of both sexes were many hundreds of times more likely to harm stepchildren than were natural parents. As Dr. Payne’s sister, Donna Payne, reported in her illuminating website, that some legislators were considering laws that would place restrictions on the ability of parents to divorce completely, at least until their youngest child had reached the age of eighteen. According to one proposal, parents would be obliged to continue to spend time together, if necessary in the presence of a counselor, to discuss matters related to
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the children’s welfare. It’s a tricky business. Some stepmothers are better mothers to their stepchildren than some natural mothers are to their natural children. That’s why information like Ruth Payne’s was useful. The judge in one case had secured videos of each of the competing parents and potential stepparents and based his decision largely on their actual behavior with the child. It was nice to see something helpful coming out of the human nature sciences, for a change. In any case, my respect for Young’s wife positively predisposed me toward her husband. Also, Dr. Young, himself, had a good reputation in the community. I knew several judges who have made referrals to him. Ms. Mackintosh appeared, on the face of it, to have a very weak, if not a frivolous, case. It’s not as if it were a sex offense. Maybe it could be called a “love offense”. Dr. Young did not stalk her, he did not invade her privacy, nor did he threaten her in any way. He made no physical contact beyond a touch on the shoulder. But that, of course, was not what she accused him of. She was charging him with incompetence and misrepresentation. Incompetence seemed very, very difficult to prove. It is well known that psychotherapy is highly variable in both procedure and result. Misrepresentation seemed more likely. Both sides agreed on exactly what had transpired in Dr. Young’s consulting chamber that was the basis of Ms. Mackintosh’s assertion that the behavior was harmful to her, or at least not helpful, and that it failed to utilize readily available information. She had come to him with a very specific problem. It was a problem for which Dr. Young had claimed his methods would provide help. That he did not, in fact, understand the problem, and that he had failed to utilize available information that would have clarified the situation, is the basis of Ms. Mackintosh’s case against him. Admittedly, Young’s actions might have been almost innocuous in another context, even if not welcomed. However, at the first session, Dr. Young clearly stated that he understood and said he could help. He also said that the therapy would probably take no more than “a couple of months”. There was no tape recording of that early session, but later, when Mackintosh used a concealed microphone, he repeated the promise on tape. It was a promise that he did not keep and could not keep, because, as his own testimony showed, he had not been trained in, and did not know much about, the condition he promised to aid. Under Ed Pervis, the case became one in which it was the profession of psychotherapy by clinical psychologists that came under attack. In a most unusual development, Young’s lawyer, Ward, joined that attack. The difference between them was that, for Pervis, Young was guilty because he did not transcend his training; for Ward, Young was innocent, because he could not transcend his training and the traditions of his profession. In the end, I felt forced to concur with Ward. I think a judge must never forget the danger posed by democracy, itself, when those with political power, however it may have been obtained, construe reality as they would like it to be or, rather, as they believe their constituents would like it to be, ignoring all but political issues. Science, in my view, is nothing more than common sense to the nth degree— something we judges must be good at, because lifedetermining judgments must be made and decisions must be rendered. I am aware that the actions of an individual can lead to huge effects that would not have otherwise occurred. We think of Alexander the Great, or of Hitler, or of Ronald Reagan’s response to the first known cases of AIDS. And who can forget Jesse Helms’s influence on the relationship between the United States and the United Nations, or the one-person revolution of 2001 when Republican United States Senator became Independent Senator Jim Jeffords I-Vt., thereby handing to the Democrats such perks as committee chairs. And I also think of the many obscure or relatively obscure people who single-handedly produce positive
The Collected Works of Dorothy Tennov
effects. I recall Rachel Carson’s Silent Spring, that began the conservation movement. I also think of Alan Turing, the tragic genius without whom countless lives would be different. Although Turing did eventually begin to get good press a few decades post mortem, few will ever understand what he did and what it meant. I didn’t know whether my decision or the information in that trial would really make any large difference in the scheme of things, but I have taken very seriously my commitment to truth, by which I mean scientific truth – because judicial truth may go beyond, but cannot exist in opposition to, scientific truth. There is no question but that the information presented by the Young case, and advertised to the rest of the world, has changed some attitudes. Bills are already pending in several states that will allow insurance companies the right to refuse to pay for psychotherapy. That the procedures were taped, and given daily airing on news broadcasts, has produced strong reactions of various kinds from all parts of the political spectrum. Some psychologists welcomed exposure to some of the problems in their discipline. They said that it needed shaking up. Negative reactions came from labor unions against reduction in health benefits, and from psychologists who were passionate in their defense of their method. I received anonymous letters from patients and former patients who gave graphic evidence of the dangers of withholding treatment from patients who felt that they needed it. Senators Wellstone and Dominici argued for parity, by which they meant that mental illness should be considered an illness like any other and, therefore, should be covered. Surely they have a point. It’s just that psychotherapy can be inordinately expensive and its effectiveness has not been adequately demonstrated. The evidence on that was overwhelming. It was a tough one to balance out. Although much of the testimony provided data that purported to show that psychodynamic psychology has had positive effects, in the end (although some claimed otherwise), a series of witnesses made it clear that there was no scientific base in support of specific psychotherapy procedures for specific conditions. When HMO’s denied support for long term therapies, the professionals, Young included, obliged by contradicting their earlier views and beginning to tout the virtues of short term therapies. That, plus the fact that there are so many different types of therapy, all equally approved by the licensing authorities, but none clearly effective in specific ways for specific conditions, weighs against giving blanket approval. Evidence was also presented that psychotherapy, as currently practiced, risks endangering some recipients. George MacPherson, M. D., presented what I saw as a balanced and thoughtful statement. He said, “Yes, there had been cases of unwise attraction between physicians and patients. And between lawyers and clients. Mostly, we manage to keep the press away, but it happens. People are people, men are men. But when it happens with someone charged with curing the soul, it’s inexcusable. It’s inexcusable in a priest, and it’s inexcusable in a psychotherapist, both of whom are uniquely privy to aspects of personal life.” With agreement regarding the exact nature of the incident, it was the meaning of the behavior that formed the basis of the complaint lodged against the defendant. It was on this issue that the controversy rested. Ward contended that Dr. Young believed his actions were correct because his profession considered them to be reasonable, that they fell well within the boundaries of the acceptable, both as theory and as an action. Witnesses for the defense contended that in his profession Young was ethically obliged to act as he did, that his profession supported his right to use his carefully thought out position. There were many facets to this case; it was of a complexity that occurs when several lines of cultural movement meet at a critical juncture. For example, even superficially, the case admitted of several alternatives. There was the possibility that Young was not to blame for having behaved inappropriately to the situation because he was under the pressure of an impulse virtually impossible to resist, the proposed strategy of Leland Wilson, Dr. Young’s first lawyer. In order to protect his client from blame, Wilson would have claimed that Dr. Young had acted on the basis of the seductive power of Nancy Mackintosh. Wilson’s plan, and I’ve seen it often, meant impugning the woman’s reputation, a strategy to which Young firmly objected. He insisted that no fault should be attributed to the plaintive and fired Wilson even before the trial began, an action that spoke well for him. Furthermore, there was a general consensus that while Young’s feelings might not have been under his control, his actions were. By his own admission, he could have chosen to behave otherwise. He behaved as he did because he believed it was the right thing to do. Nancy
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Mackintosh’s lawyer, Ed Pervis, maintained that Young’s action, the few sentences spoken to her that resulted in the suit, were unwise, and known by him at the time to be non-therapeutic. Furthermore, they were a weak-willed response to his own unprofessional desires. By this theory, in addition to misrepresentation, Young committed an indiscretion that revealed incompetence.
Witnesses for the profession were divided on the ethical issue; they sounded a cacophony of
agreement and conflict. Ward’s strategy did not please his client, but Young’s reputation would be damaged no matter what verdict I handed down. Attorney Ward maintained that the reason Young acted as he did was because it was his only recourse in view of his training and the practices and policies of his field. In effect, he took the whole profession to task for not preventing such things from happening. There was no question but that there had been harm. Ms. Mackintosh may have been a journalist, but she did not enter therapy to get a story. She was entirely sincere about seeking help for a problem. It was the type of problem for which the advice-givers in women’s magazines and on TV recommended psychological consultation. But, instead of receiving the kind of help she sought, a specific answer to a specific question, she was plunged into the very situation from which she was attempting to escape. Not only had Young not helped her, but he had begun to show his ignorance of matters that lay central to the aims for which he was receiving payment. Worst of all, he showed no self-knowledge, and inadequate acceptance of relevant research findings. As Attorney Pervis pointed out, maybe Young had a good deal of clinical experience, but Mackintosh had had her experiences, too. She picked up cues of voice tone and body movement. She tried to ignore them, but they intensified up to the moment when Dr. Young made his ill-advised confession of love for her and his belief that she felt the same for him. It must be admitted that Mackintosh had, by this time, also become suspicious of psychotherapy in general, especially the psychodynamic kind of therapy that Young practiced. I heard from many witnesses and read convincing books about the weaknesses in the psychotherapy industry, even including testing and some forms of counseling. Although many people claim to have been helped by psychotherapy, a good case was made that that result came from factors other than any particular action learned during professional training. This, to my mind, cut to the core of the matter of misrepresentation, although I think it was not intentional misrepresentation on Young’s part. Therefore, I indict the discipline of Young’s profession for not approaching the subject with more objectivity, for not giving more attention to the realities of human experience, and for stubborn reluctance to ignore ambiguous correlations. The scientific opinion brought into my courtroom showed that there was a fact of human nature that psychologists refused to examine in the only way it could be examined, by examining the experience. Thus, the plaintive faulted the defendant’s field by contending that his behavior toward her, while not particularly objectionable in itself, signified a failure of his understanding and therefore a failure of his field, as Dr. Young showed himself to be conscientious in his adherence to the principles, including ethical principles, acquired during his training. Ms. Mackintosh did not blame her psychotherapist for falling in love with her. She had been convinced by Browne’s book that he could not help that, that whatever brings it about is not under voluntary control. What Dr. Peter Young should have done was to understand his own vulnerability to this common phenomenon and, therefore, to have recognized it in himself. Had he done so, Mackintosh contended, it might have put a brake on his actions, even if his feelings were unaffected by the insight. So where is the fault? Ed Pervis, Mackintosh’s lawyer, stated that the fault lies in a bureaucracy that awards credentials and legal privilege unwisely. But we judges are expected to evaluate scientific evidence and theory for ourselves, and not merely to trust to the established authority. “Generally accepted by the scientific community” is not good enough in a field overflowing with controversy. Again, granting that his Love Two condition altered what he wanted to do, it did not overrule his behaving in a reasonable, professional, and moral manner. It cannot be denied that Young committed an inappropriate act given the particular circumstances of this particular supposedly therapeutic relationship.
The Collected Works of Dorothy Tennov
However small the act, the meaning to the client was large and should have been known by him to be large. But I could not conclude that it was Dr. Young who was guilty as guilty is defined in a court of law; it was the profession that kept its head in the sand over this issue. Dr. Young acted only after he had given the matter considerable thought, even consulting Professor Cornwallis, the older colleague who had, on previous occasions, functioned as a source of professional advice. Young was not the first person to be destroyed by gossip, and, like many others, felled by the ax of public opinion; he committed what most people would consider a mildly unacceptable act brought to inordinate public attention. In all such cases, the mere bringing of a suit automatically punishes. Sometimes the punishment wrought by publicity ends a career. But there is nothing that a judge can do about that. What Young represents is the evil innocence of blind acceptance, a characteristic of so many human beings that there is no basis for singling him out. In many social situations blind obedience is demanded. Not just the military. I recalled Stanley Milgram. We may want less blind obedience, but punishing it is not the way to go. From my courses in behavior modification in college, one lesson never left me: reward may be complicated to administer, but it works better than punishment. It is ironical, then, that I spent the next four decades of my life meting out punishments. I can conceive of other views of the Young case and other opinions of what the verdict should have been. Yes, there were implications. Members of the psychotherapy professions wanted further debate. Advocates for the mentally ill cried out that they were being deprived of something on which their life depended. Yet it could not be denied that Dr. Young’s behavior was wrong because it was damaging to his patient. It was wrong because it was irrational. Nancy Mackintosh had gone to him for help with that very problem; it was therefore a betrayal. Dr. Young and representatives of his field of psychotherapy talk about filling a need, but I think the need is not always that of the client. Maybe what they are doing is often the best thing to do, maybe sometimes it is life-saving. But we must also consider the fact that the propaganda machine of the psychotherapy industry has spent literally billions over the years in creating needs. Tana Dineen made that point effectively. Furthermore, while Love Two may merely be a theory under scientific consideration, and not yet not a final conclusion, it is well-supported by nonscientific sources, as well as an increasing number of scientific studies in which psychological functions have been associated with brain activity in very specific locations. Some researchers have already supplied data that support a specific, physiological marker that may be correlated with Love Two. Browne’s book was written two generations ago. Why has it not been further investigated? Why has the psychology profession not found a way to deal with this matter? Could it be fear of political consequences? What role is played by reactions to certain images, especially those involving sexual attractions? The more I listened to the testimony and the more I investigated the literature of the field, the more I agreed with the witnesses and attorneys that it was the profession that certified Young, not Young himself, that was in need of change. I was inclined to agree with Mackintosh that his telephone call asking that she return for additional sessions was probably based in his wish both to save face and to see her again, more than was it for the reason he gave. He desperately wanted to see her again, to deny to himself that the door to her was closed forever. I felt for the man. He was struck a low blow when he learned of her intention to sue. Surely, he would have handled the situation differently had he been appropriately trained. Again, he knew the ethical guidelines, and he believed that he was acting within them, even in his confession of love. I listened to extreme criticism of psychotherapy, psychology, and, to some extent, all the social sciences, through the spokespersons from the various related fields. After both lawyers identified the same culprit, the media joined what became a witch-hunt. In the end, the inevitable conclusion was that Young should have known about Love Two and he should have recognized the condition in himself, understood what it motivated him to do, and therefore, acted with greater discretion and humility. The testimony of Dr. Claude Robbins was especially revealing. Robbins was a well-credentialed psychotherapist who had incorporated the implications of Love Two Theory into his treatment procedures exactly according to what was described in Browne’s book. He said that it had not been more generally
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utilized because no work on the theory had been filtered through the peer review process. Many authors referred to it, but few adopted his recommendations or used the term “Love Two”, regressing instead to the inexact and confusing term “romantic love”. But in the psychology literature such terms as “infatuation”, “passionate attraction” and “romantic love” in a manner that failed to distinguish the state from meanings that were not Love Two. Dr. Robbins presented some data in support of his own theory about prejudices based in imagery that evokes disgust reactions. Although some former patients testified, I interpreted the difficulty with bringing patients of psychotherapy to the stand as evidence of the power of the therapist over the client. It also attested to the stigma involved with psychotherapy. The public was caught in a vise between conflicting pressures. It wanted help and it wanted coverage, but association with mental health practitioners carried with it real danger to one’s reputation. One visit could ruin a life, especially a political career, or a marriage. I recalled the case of Kelly Armstrong, whose husband’s lawyers secured a highly favorable divorce settlement in which she was awarded a sum inadequate to meet her very real needs and also lost custody of her son. Kelly’s case rested on what was considered her “mental instability.” Through false promises, she was persuaded to see a psychiatrist paid for by the husband. As the result of that single consultation session, her life was destroyed. The question I always had about that case was, “By what right did the psychiatric profession wield such power?” A reporter investigating the case after Kelly’s death of rampant cancer a few months later wrote that she was a wonderful person. Better than merely non-pathological, she was talented, intelligent, generous to all, and a wholly committed parent. And what was the source of her tragedy? It was in a judicial system that allows subjective, one-sided opinion to hold sway over common sense. It wasn’t my case. I cannot say for sure what I would have done. Essentially, what had happened in the Young case was that another faction, one with interests of its own, entered the debate. Insurance companies had been forced to pay large sums for a treatment that was questionable. The conservative pundits noted that, not only was psychotherapy not a medical treatment and of dubious value, but that its values conflicted with those of individual autonomy. At best, it was a form of entertainment and should be dealt with, and taxed, as such. In the end, I was forced to agree that professional psychology wears a cloak of scientific respectability for which has no valid claim. I think the two best things to come out of the trial of Dr. Young were public exposure of what it means to evaluate a procedure scientifically, and clear elucidation of the value of many forms of counseling. Non-psychodynamic counseling was given high marks for usefulness, particularly as related to the following of medical advice, and a clear distinction was made between counseling and Freud-based, self-examination, psychotherapy. Drug therapy has revolutionized treatment of many conditions formerly given over to psychotherapists and has, thereby, marginalized psychological practices. That is a fact. Now, this trial might well be the coup de grace that cleans out some of the leftovers from the old regime. I hope it is. For almost a century, psychology has at least one item in its bag of tricks that was in demand and was theirs alone: psychological testing. Yet some of the testimony even called that into question. Philadelphia high school principal Doris Westerly maintained that the validity of psychological testing procedures is questionable because of uncertainty about what is actually being measured. “Many tests,” she said, “are almost entirely empirical in that they are based on comparisons, not basic theory. Consider neurologist Antonio Damasio’s description of how his frontal lobe patient passed all the published and widely-used psychological tests with flying colors, and that it was only the patient’s report of his feelings that brought the real nature of the deficit caused by his brain damage to the doctor’s attention.” I found myself in agreement with Robbins that this suggests that a review is needed to determine what forms of psychological measurement are acceptable. Although my own minimal training in psychology was largely of behaviorist orientation, I had not realized until Robbins presented his information, that academic psychology was so thoroughly opposed to the use of self-report data. Nor had I understood how fully was the gap between clinical psychology and scientific, or academic, psychology. Failure to listen to what the patient was telling them was also a fault found by Brendan McMahon in the practices of some
The Collected Works of Dorothy Tennov
cognitive behavior therapists. It reminded me of the fact that, in the past, medical doctors were specifically taught to ignore patient comment. In the end, there was little for me to do except concur with the consensus. Psychotherapy is not a medical procedure. Where harm occurs, as in the Mackintosh-Young case, the fault lies with the conventions of the profession and, were it to be put on trial, it might well be found guilty of misrepresentation. I only hoped that the trial had served to clarify its status. Maybe it would move psychology into greater honesty and better contact with the reality of people’s lives. In any case, the small positive effects of psychotherapy found in some studies could result from the admixture of elements of counseling that are grounded in the reality of the person’s situation. I especially hope that what has been learned by the public through the Young case will put a dent in the practice of demeaning people in order to provide services. Former American Psychological Association President George Albee was right in his opposition, many years ago, to psychology’s attempt to cash in on doctor-ism thereby unnecessarily stigmatizing their patients. Yes, I had to find Dr. Young wrong-sighted, but innocent. As much or more than any case that ever came before me, the Young case led me to reconsider the adversarial system under which we were forced to operate in this country. It is not the only possible system of justice, and several countries, notably Australia, have begun to question whether it is the best way to obtain justice for litigants.