Carrie Weaver, JD Anticipated May 2023, Law & Public Policy Scholar
The 1970 textbook Wigmore on Evidence, which can still be found in print in Temple University’s library reserves, posits essentially that every woman who raises allegations of sexual abuse should be subject to a psychological assessment for risk of delusion:
No judge should ever let a sex offense charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician. It is time that the courts awakened to the sinister possibilities of injustice that lurk in believing such a witness without careful psychiatric scrutiny.[i]
The depiction of women as “crazy” is entrenched in the history of our society. Similar to racism, sexism shifts over time to accomplish the same goals of oppression and discounting under a different guise. Female hysteria as a diagnosis morphed into referring to women as hysterical as the trend moved away from pathologizing women. But how far have we truly come?
As distrust of and bias against women continues to pervade courtrooms, there is a newer diagnosis for women and mothers, known as encapsulated delusion, which is beginning to gain traction. My first introduction to this topic came while I worked in family law this summer. In a case where the mother alleged child sexual abuse, she underwent psychological evaluation and came back with a diagnosis of encapsulated delusion.
Encapsulated delusion, as used in the context of the family unit, refers to a mother who is suffering from one delusion only: that her child is being abused. Though this has gained traction as a diagnosis, it cannot be found in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The topic has been published in this context on only two occasions. This idea was first mentioned in 2016 in an article by psychologists Marjorie Gans Walters and Steven Friedlander. Within the article, they discussed the concept without any reference to corroborating research or studies, whether external or their own. The second mention came in 2020 in an article by social worker Shely Polak, PhD, the Honorable Tom Altobelli, and social worker Linda Popielarczyk, which simply mentions that encapsulated delusion can happen in family law cases, citing the Walters and Friendlander article. Neither article contains any studies or data to support the assertions about the concept.
Outside of publications, however, the idea has continued to spread through the presentations of psychologists Robin Deutsch, Leslie Drozd, and the Honorable Harvey Silverman. During each of the last three years, they have presented at the symposium of the Association of Family and Conciliation Courts, California Chapter about encapsulated delusion, on topics ranging from identifying it to treating it. How can psychologists purport to know how to identify, diagnose, and treat a phenomenon that has not been adequately researched or proven?
By looking at the definition of encapsulated delusion itself, I believe it is an inappropriate diagnosis to use in cases with claims of child abuse. The very nature of sexual abuse cases becomes a “he said, she said” because there are often no witnesses able to testify aside from those directly involved, and in cases of child sexual abuse, one of those witnesses is a child. Therefore, an investigation of the facts is conducted through Child Protective Services (CPS), or the state’s equivalent agency. After a CPS investigation, the agency typically reports its findings. Though it is slightly different in every state, in Maryland, for example, the abuse can be indicated (it occurred), unsubstantiated (either that it likely did not occur or that there is not enough evidence to prove it), or ruled out (there is not enough evidence to support an indicated or unsubstantiated finding). The definition of encapsulated delusion is “a fixed, circumscribed belief that persists over time and is not altered by evidence of the inaccuracy of the belief.” Thus, the diagnosis is even less applicable if the abuse is unsubstantiated because the belief is not deemed to be inaccurate, which is required by the definition. Therefore, the diagnosis would be inappropriate on its face in a case where abuse has been either indicated or unsubstantiated. Contrary to standard expectations, even in cases where abuse occurred, there is often little, if any, physical evidence. Even though studies have shown that there is often no physical evidence, CPS places great weight on this deficit, which may lead to abuse to be ruled out in too many cases where it has actually occurred.
Cases with no physical evidence and a CPS finding that rules out abuse are those cases where the mother is most susceptible to a diagnosis of encapsulated delusion. Courts often order psychological evaluations. When they do, the psychologist will be able to see that the alleged abuse has been ruled out and may infer that the abuse did not occur. Because of that, a mother who continues pursuing legal actions becomes a candidate for a diagnosis of encapsulated delusion.
Given the overwhelming lack of data on encapsulated delusion, if an expert offers evidence of the diagnosis, it should not be admissible because the testimony would fail the Daubert test. The test requires that for an expert to be permitted to testify and potentially opine on a topic, the court must consider many factors, including whether the topic has been tested, peer reviewed, and widely accepted. None of these standards is satisfied by the research on encapsulated delusion. Yet, it is permissible for the concept to enter the courtroom through means of a psychological diagnosis in a report.
To summarize: because it has been diagnosed by a psychologist, the opposing party’s attorney may use the concept that the mother is suffering from an encapsulated delusion to strengthen their argument that the child has not been abused. This is despite the fact that little to no research exists on the phenomenon and that it is simply a new way to assert that a woman or a mother is hysterical. Is it truly “delusional” to believe that your child is being abused even if insufficient evidence exists to prove it? Or is someone who fits the bill for encapsulated delusion simply a concerned parent who will stop at nothing to protect their child? More research is required before we allow it to be used in court.
[i] Wigmore, J. H., Evidence in Trials at Common Law, 736-37 (Little, Brown and Company, Volume 3A, 1970) (Original work published 1904).