37 Trial Lawyer • Winter 2023 within the implicit and explicit biases of our culture around the elderly, dementia and sexual abuse. Our role, as attorneys who handle these horrendous cases, is to do everything within our power to educate the public about this issue. Think about the progress as a society we have made in the arena of child sexual abuse over the past 30 to 40 years. It was within some of our lifetimes that children’s accounts of sexual abuse at the hands of a trusted adult were treated with, at a minimum, skepticism. Slowly but surely, advocates and educators drove the narrative that sexual abuse of children happens, and it’s about power and control, not about sexuality. Qualities of disclosures Ana, 91-years-old, was recently moved to a memory care facility. She struggled mightily after the move, but showed signs of settling in. Seemingly out of nowhere, she became resistant to caregivers, startled when others walked into her room and declined to venture to the dining room for meals. She seemed depressed, and, when asked, eventually told her daughter she didn’t like the male CNA David as he “wiped her too hard.” Her daughter told the facility, who spoke to David, who denied he had done any such thing. The facility manager spoke to Ana, who reiterated what she told her daughter. The facility did nothing, other than cautioning David. A month later, Margaret complained David was entering her room while she was asleep and applying cream to her genitals, and she didn’t like it. Police were called, spoke to Ana who denied anything happened and to Margaret who said David had been putting cream on her genitals and she didn’t like it. Police closed the investigation after the first report, citing a lack of evidence to proceed. David moved to a hospital setting, where he would eventually be investigated for abusing upwards of 20 different elderly women. Women with dementia are both more suscept ibl e to s exua l abus e and simultaneously the least likely to be believed about sexual abuse. Dismantling the belief that dementia interferes with a person’s ability to form and store trauma memories is the key expert evidence that must be cultivated prior to trial. Retain these experts early in the case to interview the victims and assess the nature and extent of their cognitive capacity. The experts must be able to speak to the qualities of their disclosures that indicate that certain areas of the brain were online or offline when the memory was created and stored. You may find your expert testimony trimmed at a pretrial Daubert hearing, or you may not. Either way, juries need to hear from an expert who, generally speaking, believes people with dementia can form and store trauma memories. Juries need to be educated as to the creation of trauma memories in a “normal brain” and then compare and contrast that to the creation and storage of those memories in a brain that suffers from dementia. After all, child abuse professionals needed to call similar experts decades ago to teach juries that even the youngest of children can remember and recall sexual abuse, and the factors we look at in evaluating their disclosures. One in three Americans will die with Alzheimer’s or other form of dementia. Let’s pave the way, with education and study, to begin to believe them. Let’s make the path, with expert testimony in court, for those people to be perceived as believable. Megan Johnson specializes in personal injury — specifically child abuse, sexual assault, elder abuse and crime victim representation. Johnson contributes to OTLA Guardians at the Sustaining Member level. She is a partner at Johnson McCall LLP, 200 SW Market St., Ste. 950, Portland, OR 97201. She can be reached at megan@johnsonmccall.com or 503-4919901.
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