January 16, 2012

Court to Rule on Reliability of Repressed Memory in Abuse Case

Sexual abuse victims often struggle for years with memories of the traumatic abuse they suffered as children. In some cases, the experiences are so traumatic that they block out (or repress) the memories.

This week the Minnesota Supreme Court is hearing a motion to determine the validity of repressed memory in sexual abuse cases.

Courts will not allow expert evidence unless the party seeking to submit the evidence can establish that the evidence is reliable.

In Canada, the Supreme Court of Canada in R v. Mohan decided the test to be applied when considering expert evidence. Mohan sets out four specific criteria for the admissibility of expert evidence. They are:

1.Relevance;
2.Necessity in assisting the trier of fact;
3.Absence of any exclusionary rules; and
4.A properly qualified expert.

The Supreme Court recently weighed in on this issue again in R. v. Trochym where the majority of the Supreme Court Justices reiterated that reliablity is an essential component when determining the admissibility of expert evidence.

Is Repressed Memory Reliable?

Determining the accuracy of a plaintiff’s memory in cases of childhood sexual abuse is critical to the success of a plaintiff’s claim.

When considering evidence relating to repressed memory syndrome the court needs to understand how human beings store memories.

Experts agree that there are three components to our memory:

1.Sensory memory;
2.Short term memory; and
3.Long term memory.

The scientific literature generally agrees that although our ability to store and retrieve memories is usually accurate, memories naturally tend to fade over time.

Factors Resulting in Better Memory

Psychologists have found that there are five factors that tend to result in clearer or better memory retrieval over time:

1.Recency;

2.Meaningful memories (you are more likely to remember the details of your marriage twenty years ago than what you had for breakfast a week ago);

3.Emotional events are more likely to be remember than neutral events. (So you are more likely to remember the drive to work where someone almost crashed into your car than the hundreds of other routine commutes you made every other day of the year);

4.Paying attention. Obviously if someone is focused on paying attention to events around them they are more likely to remember the act than if they are not paying attention; and

5.Reviewed after the event. If you are in a car accident and write down what happened or give a statement to the police or an insurance adjuster you are more likely to remember the event because you have reviewed or repeated the event over again in your mind.

Dates are Difficult

Experts have found that specific dates are very difficult to remember unless they can be tied to a specific event or milestone. In other words, you are more likely to remember an event that happened in the past because you remember that it happened after your birthday party than you are to remember an event that happened on a random uneventful day.

Does Trauma Effect Memory?

Sexual abuse lawyers, and experts who treat survivors of childhood abuse, have to consider what effect trauma has on memory. The weight of scientific evidence appears to indicate that the content of traumatic memories are usually accurate and can be retained over very long periods of time.

Traumatic memories appear to be different than ordinary memories. They tend to be very vivid despite the passage of time and often are re-experienced as flashbacks (one of the symptoms of post traumatic stress disorder).

One of the most common differences between traumatic memories and ordinary memories is that gaps in recall or fragmented memories are very common. Memories tend to be disjointed or lack detail.

Fragments?

Psychologists believe in situations of extreme emotion, a victim’s attention may be narrowed, causing fragmentation of their memories.

Victims may dissociate during and after traumatic events.

Finally, victims may repress the memories all together. Psychologists believe that repression of traumatic memories may be a means of coping. The fact that child abuse often takes place secretly means that the events are not likely to be reviewed at a later date (one of the factors which helps increase recall).

What about False Memories?

Defendants in sexual abuse cases often claim the victim is experiencing false memories. See for example:

Priest Sex Abuser Appeals Conviction: Denies Existence of Repressed Memory

Repressed Memory of Sexual Abuse a Creation of the Media?

Can False Memories be Created?

It does appear that false memories can be implanted. The ability to create and implant false memories tends to depend on the importance of the event and the likelihood or plausibility of the memory.

Experts agree that false memories are more likely if the suggested event is believable, plausible or has some basis in reality.

For example, I normally stop at a local drive through for a coffee on my way to work in the morning. Experts suggest that it would be possible to implant a false memory that in addition to my coffee I bought a donut on my way to work. On the other hand, it would be unlikely that I would go to the drive through and buy a watermelon.

Experts have determined false memories for positive events (like a birthday party) and neutral events (wearing a blue baseball cap) are more likely to be produced than false memories for negative events (like sexual abuse).

Amnesia

Can you forget traumatic events?

It is well documented that traumatic events can be forgotten. Studies of war veterans has determined that combat trauma can result in amnesia.

There are well documented studies proving amnesia for victims of childhood physical abuse, rape victims, car accident victims and survivors of natural disasters.

Childhood Sexual Abuse

Studies of victims of documented childhood sexual abuse have shown that between 20% to 60% of abuse survivors are reported having times in their lives when they had no memory of their childhood abuse.

Studies also appear to confirm that recovered memory is as reliable and accurate as continuous memory in studies that compared abuse that was documented in hospital records.

What does it all mean?

Victims of childhood sexual abuse can have periods where the abuse is forgotten and then remembered at a later date.

Traumatic memories may be fragmented or disjointed but generally tend to be accurate.

False memories can be implanted but it is unusual and very unlikely if a memory is of an improbable or unusual event.

Finally, memories can be recovered and corroborated by objective third party evidence.


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