TABLE OF CONTENTS INTRODUCTION I. CHALLENGES AT ENCODING: FAILURES OF PERCEPTION AND INTERPRETATION A. The Depth and Complexity of the Memory Task Facing Participants 1. THE TIME Course and Complexity Through Which Consent Unfolds 2. The Complexities of Judging Intoxication B. Failures of Attention and Perception 1. Attending to Intoxication 2. Attending to Consent 3. Intoxication, Perception, and Consolidation C. Failures of Interpretation at Encoding 1. Communication and Miscommunication of Sexual Intentions 2. Interpreting Intoxication 3. The Haze of Alcohol: Intoxication and Interpretation 4. The Role of Emotion II. MEMORY FAILURES DURING STORAGE AND RETRIEVAL: FADING, DISTORTION, SUGGESTION AND RECONSTRUCTION A. Demands for Accurate Detail Versus Realities of Memory Performance B. Gist Representations Can Be Misleading C. Gist Memories and Memory Distortion D. Gist Memory and Distortion in the Context of Intoxication E. The Problem of Motivated Memory Distortion F. The Impact of Suggestion 1. Intoxication and Suggestibility 2. Interrogation, Memory Failures, and False Confession G. The Problem of Source Monitoring: Where Did This "Memory" Really Come From? CONCLUSIONS INTRODUCTION
"What do you do when two young people--both drunk and amorous--have sex that neither completely remembers, both belatedly regret and each sees through a different lens the morning after?"
Sandy Banks, Los Angeles Times, July 10, 2014 (1)
What do you do? This question, raised by Los Angeles Times reporter Sandy Banks, lies at the heart of a host of cases of alleged sexual assault. How does one adjudicate such cases when available evidence lies exclusively, or almost exclusively, in the reports of witnesses with compromised perception and memory? And how do you do this when the cases are tinged with motivations and biases that can significantly distort the fuzzy memories that both parties have? Is there reason to believe that people in such circumstances might be particularly susceptible to false memories of the encounter? We suggest that there are good reasons to believe they may be. We review evidence to support this claim and identify pathways to honest false testimony in cases of disputed sexual assault.
As context for understanding how honest discrepancies in memory for sexual interactions might arise, consider the case of a woman we will call Helen, and her alleged rapist, who we will call Jerry:
Helen and Jerry met during their first year of college and dated for about six months before breaking up. The break-up was reported by both as not hostile and as motivated largely by Jerry's impending departure. Jerry left at the end of that year for financial reasons and attended a college in his hometown for the next year. During the fall of their third year in college, Helen unexpectedly encountered Jerry at a fraternity party. He had returned to complete his final two years.
Helen was surprised and pleased to see Jerry. She had a lot of genuine affection for him, but she had just started dating a new boyfriend--Hans--and was very interested in pursuing that relationship. Hans was out of town for the weekend and couldn't attend the party. Helen began the evening by having several drinks with her sorority sisters before going to the fraternity party around 8:30 p.m.
Helen encountered Jerry shortly after she arrived. She hugged him enthusiastically and told him how glad she was to see him. Throughout the evening they stuck close together and were reported by others as having seemed physically affectionate and very interested in one another. They danced together and sat together (sometimes with limbs entwined). Both agreed that they had talked intimately, reminiscing a lot about old times (as well as new things in their lives). Both agreed that Helen told Jerry about Hans and her hopes for that relationship. Jerry told Helen about two women he had been dating and about which one he thought he was likely to pursue. Both consumed more alcohol and, eventually, left the party together at around 11 p.m.
As they left the party, Jerry asked Helen to come to his new place. He reported he just wanted to show it to her because he was proud of the place and what he had done with it. She agreed, and they went to his place, where they continued to drink and talk. Jerry pointed out some of the things he had when they were together, and they talked more about old memories, including their mutual enjoyment of their past sexual activities. This was amid other talk of their new partners as well.
As to how the evening proceeded, Helen and Jerry agree on the following: It became late, and Helen felt very tired. Jerry encouraged her to stay and offered to sleep on the couch. Helen refused and insisted that she would sleep on the couch. Jerry got in bed and told Helen that she really didn't have to sleep on the couch because there was room enough for both in bed. Helen reiterated that she would sleep on the couch, but after going to the bathroom in Jerry's room, she flopped into bed with him and snuggled close to Jerry.
Their accounts began to diverge considerably at this point. Helen later claimed that she believed it was clear she had no intention to have sex with Jerry. She had told him about Hans and her intentions to pursue that relationship. She had told him she thought it was possible that Hans was "the one." She also said she made it clear that she only stayed because they were both so tired and drunk that neither felt like going anywhere. She believed Jerry meant that she should come to bed because it would be more comfortable, not because they would have sex; he had talked about his new girlfriends, too. Helen thought of Jerry at this point like a best friend, kind of like a girlfriend you could be yourself with, rather than a boyfriend or sex partner. She said she had told him as she got into bed to remember that she was taken, and to keep his hands off her.
Jerry, on the other hand, would later say that he felt that Helen clearly wanted to have sex with him. Jerry stipulated that Helen had told him about Hans. But he also noted that all evening she had been very affectionate and intimate with him. They had talked about sexual topics, including sex between them (which they agreed had been great). She had come to his place and continued to be affectionate and drink with him even when they were alone. And, even though they talked about who should sleep on the couch, he didn't think either of them were serious--just teasing and being coy. When Helen got into bed with him, this seemed to remove any doubt.
Helen agreed that she snuggled up against Jerry but said that, to her, it was simply snuggling with him like a big brother. At first, Jerry stroked her affectionately on her arms and shoulders as she drifted off. She felt very drunk and began to drift out of consciousness, awaking to find that Jerry had removed her clothes and was performing oral sex on her. She realized she felt somewhat aroused by what he was doing but was nevertheless shocked and didn't want to have intercourse. But Jerry either misinterpreted or disregarded her startled reaction and outcry and moved up to kiss and enter her. He was very aroused and grunted or moaned loudly as he moved, shortly thereafter having an orgasm. Helen felt a number of emotions during intercourse: arousal, distress, guilt, fear about her relationship with Hans, and others.
Helen reported that she was shocked and distressed, and that she tried to resist. But Jerry was a foot taller than Helen and weighed over two hundred pounds, and she felt that her resistance was completely futile, as Jerry's weight moved and thrust on top of her slight, one-hundred-pound body. She said she cried out for him to stop, but he didn't. Helen felt she had clearly said no, before and after he entered her. Helen also reported that she was very drunk and that when she first opened her eyes, it took her a moment to realize what he was doing and to mobilize herself to resist. She claimed that she managed to put her hands on his chest to try to push him away, but by then it was too late. Jerry finished, and soon kissed her, moved off her, pulled her close by his side, and fell asleep.
Jerry, in contrast, reported that Helen seemed completely on board with what they were doing. He agreed with her account that he began by stroking her arms and shoulders. He recounted, however, that she sighed and seemed to enjoy it. After all, she had gotten in bed with and snuggled up to him, and this happened after the many behaviors throughout the evening that seemed very consistent with her being interested in sex. Jerry admitted that he was intoxicated, too, but became aroused rather than tired with Helen, who was very attractive, in bed with him. He acknowledged that she had talked about Hans, but given her other behaviors, he assumed she was okay with extra-relationship sex, or that maybe she would want him instead. He said he had no idea and that there was no indication that Helen wanted to restrict their rekindled relationship to friendship. To him, it felt like they had never broken up.
As they lay in bed, Jerry reported that Helen was making sounds of pleasure with everything he did. As he moved from stroking her arms to touching her more intimately, she didn't protest. She didn't open her eyes but seemed to respond with arousal to his touch by making more sounds of pleasure. As he moved from performing oral sex to intercourse, she opened her eyes, sat up a little, gasped, and put her hands against his chest. But he interpreted these things as arousal and participation. He didn't see indications of resistance or distress. Once intercourse began, he said he heard her say something but didn't really know what it was, because he was fully aroused and making noise himself. He thought she was just expressing enjoyment. For her part, Helen didn't remember the sounds Jerry said she made until Jerry began intercourse. She...