The necessity of memory experts for the defense in prosecutions for child sexual abuse based on repressed memories.

• Author: Hayes, Monica L.

1. REPRESSED MEMORIES OF CHILDHOOD SEXUAL ABUSE

   1. The Repression Controversy

   2. Repression of Memories of Childhood Sexual Abuse

   3. Therapy and the Creation of False Memories II. LEGISLATIVE RESPONSE: EXTENDING OR TOLLING CRIMINAL

      STATUTES OF LIMITATIONS III. PROCEDURAL REFORM: EXPERTS FOR THE DEFENSE

   1. Why Expert Testimony?

   2. The Content of Expert Testimony in Repressed Memory Cases

   3. Admissibility Issues and Expert Testimony IV. CONCLUSION

      Many States have recently enacted legislation that tolls or extends criminal statutes of limitations in cases of child sexual abuse.(1) These legislative actions parallel the tolling of the limitations periods in many states for civil suits based upon prior incidents of sexual abuse.(2) Most states took this action in order to increase reporting opportunities for abuse victims who, for either physical or emotional reasons, are not in a position to report incidents of sexual abuse that occurred prior to the victim reaching the age of majority.(3) These statutes have also opened the door to prosecution of alleged abusers based upon repressed memories of childhood sexual abuse recovered many years after the abusive incident.(4) The reliability of such memories has not yet been scientifically proven. Indeed, little research has been conducted on the subject. Nevertheless, many therapists believe in the truthfulness and validity of repressed memories, based upon experience with patients and anecdotal evidence.(5)

      With the current lack of empirical proof of the reliability of a recovered memory, bringing serious criminal charges after the passage of many years based upon potentially unreliable and usually uncorroborated evidence is untenable. Not only are sexual abuse prosecutions based solely upon repressed memories of unproven reliability unjust under the basic tenets of our criminal justice system, they also present obvious practical difficulties in proving charges beyond a reasonable doubt. Allegations of abuse based upon repressed memories are often uncorroborated, since a long period of time normally elapses between the alleged abusive incident and the recovery of the memory. Juries, using common knowledge derived largely from media reports and personal experiences with memory, may accord undue credibility to repressed memories.

      Prosecutions based upon repressed memories of childhood sexual abuse implicate a number of issues for potential defendants as well as for society. Defendants accused of sexually abusing children sustain irreparable damage to their personal and professional reputations even if they are ultimately acquitted. With such severe consequences at stake for potential defendants, the criminal justice system must question whether charges based upon uncorroborated memories of unknown reliability should be allowed to proceed. Furthermore, if research later proves conclusively that repressed memories are unreliable, a societal backlash may occur which could chill legitimate prosecutions of sexual abusers of children.(6)

      This Note argues that since prosecutions for sex offenses against children based upon repressed memories are more likely to be instigated under newly extended or tolled criminal statutes of limitations, defendants must be provided with certain procedural safeguards in such cases. Specifically, due to the serious nature of these charges and their precarious evidentiary foundation, states that currently allow prosecutions based on repressed memories should adopt a bright-line rule requiring that, upon the defendant's request, a memory expert testify on his behalf.

1. REPRESSED MEMORIES OF CHILDHOOD SEXUAL ABUSE

   1. The Repression Controversy

      Most psychotherapists believe strongly in the concept of repression and incorporate that belief into their therapy strategies.(7) Sigmund Freud advanced the notion of repression as an ego-defense mechanism.(8) The general theory of repression holds that when an event occurs which is too shocking for the conscious mind to handle, the memory of the event is forced into the unconscious where it becomes inaccessible.(9) The memory may stay in the recesses of the unconscious for many years, or perhaps forever, but may at some point rise up into the conscious mind.(10) According to the theory, repression of memories of past trauma may lead to difficulties later in life including depression, substance abuse, low self-esteem, social and sexual dysfunction, and even suicidal tendencies.(11)

      Experimental psychologists and others, however, question the very existence of repression.(12) The evidence used to validate repressed memories is almost exclusively anecdotal, and studies relied upon by clinicians have been widely rejected as speculative.(13) Due to the traumatic nature of the events thought to induce repression, controlled laboratory experiments on the subject cannot ethically be conducted.(14) Unless experimental proof becomes available, many in the field of psychology will remain critical of the theory of repression.(15) Moreover, clinical anecdotes and therapists, reliance on unsubstantiated theory to explain repression leave other therapists and laboratory researchers unconvinced as to the validity and usefulness of the theory.(16) Because scientists are currently unable to replicate the conditions believed to be necessary for repression to occur, controversy over the theory may never be conclusively resolved.

   2. Repression of Memories of Childhood Sexual Abuse

      Although figures on the incidence of sexual abuse of children vary, this type of abuse is tragically all too common.(17) Furthermore, the frequency of repression in cases of childhood sexual abuse is unsubstantiated.(18) While few studies provide evidence of the extent to which repression occurs, the available figures range from eighteen percent to fifty-nine percent.(19) Many therapists rely upon symptomology(20) and the emotional pain that often accompanies the retrieval of repressed memories as evidence of the truthfulness of their patients, memories of sexual abuse.(21) Therefore, those who make the case that repressed memories of sexual abuse are authentic usually rely upon individual clinical cases and anecdotes as evidence, neither of which are of scientific quality. As such, they should not be relied upon to support the validity or authenticity of repressed memories.(22) Because little is empirically known about repressed memories, jurists must presently rely on years of study of the reliability of standard memories to answer difficult authenticity questions which will inevitably arise in criminal sex abuse prosecutions based upon repressed memories. A review of this research shows that repressed memories are often exposed to factors that have been proven to affect and introduce error into standard memories.(23)

   3. Therapy and the Creation of False Memories

      Skeptics tend to believe that the repressed memories described in clinical reports are the result of the therapy process itself, specifically therapist expectations and suggestive techniques, rather than historical accounts from the client's past.(24) Suggesting that a person's memory may be false, however, should not imply that he or she is deliberately lying. Elizabeth Loftus asserts that there are at least two potentially interrelated ways in which false memories may emerge: first, the person may internally need to create an abuse memory to provide a screen for a real, but less tolerable, childhood memory; second, a person may draw from external sources, most notably from a therapist's suggestions, to assist in the creation of such memories.(25)

      Memory may be divided into three stages--perception, retention, and retrieval.(26) Factors such as a person's mood when perceiving an event, information received after an event during the retention phase, and the environment, techniques used, and persons present during recall of the memory have been shown in experiments to affect a memory's accuracy.(27) Numerous studies prove that as time passes, memory becomes increasingly impressionable and vulnerable to new information. Thus, since repressed memories deal with events in the distant past, they may be extremely susceptible to new inputs.(28) Furthermore, since older memories are particularly malleable, they are especially likely to be influenced by new inputs at the retrieval stage. As such, the conditions under which they are recalled deserve close scrutiny.(29) Repressed memories may reappear spontaneously or through flashbacks stimulated by a triggering event.(30) Since many repressed memories of childhood sexual abuse are retrieved during therapy and much data exists concerning therapeutic processes and techniques, the discussion that follows will focus on issues implicated in the therapy process.

      Therapy consists of talking exchanges between patient and therapist to develop insight into the patient's past.(31) Donald Spence has identified four opportunities for distortion of the historical truth of a patient's past during therapy: between what really happened and what the patient remembers as having happened; between what the patient remembers and what he articulates; between what the patient says and what the therapist hears; and between what the therapist hears and what she concludes.(32) Thus, there are multiple opportunities for the creation of false or altered memories of childhood sexual abuse during therapy.(33)

      The retrieval environment and patient expectations during the retrieval process have been shown to play a large role in false memory creation.(34) Therapist expectations(35) also play an important role during the retrieval stage because memories may be falsified or altered through the psychoanalytic phenomenon of transference.(36)

      In addition, a patient's memory may be altered by the therapist's interpretations of the patient's revelations and dreams, and through the subsequent process of reconstructing the patient's past based upon these interpretations.(37) False...