A Small Step Towards Common Sense

In a landmark case on September 30, a 59-year-old man, Bill¹, was acquitted by a jury in the Auckland High Court on charges of sexually abusing three of his daughters about 20 years ago. The complainants alleged sodomy and rape, and indecent acts such as the insertion of a coat hanger in the vagina causing bleeding and loss of consciousness. The women claimed they had suppressed the memories which had only resurfaced in later life. All three daughters had attended therapy and made claims for damages from the ACC before they laid the criminal charges against their father. Two of the daughters reported memories of events happening in their cots when aged one year old or less. Bill was defended by Mr Peter Williams, QC, who dismissed evidence based on "recovered memories" as dangerous and fallacious.

The mother of the girls, Bill's former de facto wife, gave evidence (for the Crown) that she had never noticed any indication of such abuse taking place. She had never seen any signs on her girls of the violent trauma they now claimed to have suffered, nor had she ever encountered blood on their sheets and clothing.

Clinical psychologist Eileen Swan, expert witness for the Crown, supported the phenomenon of "memory retrieval". She told the jury that it was possible for people to block out memories of unpleasant events as a psychological mechanism if they were "too hard to deal with". These memories could return piecemeal at a later date. Ms Swan claimed that there is a "paucity of knowledge on memory" but admitted that her life is so busy she has trouble keeping up with her education on the subject.

Dr Frank Rawlinson, a psychiatrist called for the defence, has read widely and deeply on the topic. He recently visited the US and consulted with some of the leading professionals in memory research, and returned with a large number of current books and articles, including Elizabeth Loftus and Katherine Ketcham's _The Myth of Repressed Memory: false memories and allegations of sexual abuse_2.

Witch Hunting

Dr Rawlinson compared the use of recovered memory in sexual abuse cases to the 16th- and 17th-century witch-hunts in Europe. He said that whilst recovered memory theory (or any other theory) could never be disproved, there was no scientific evidence to date to substantiate such a belief. He explained that, on the other hand, it is very easy to create false memories. He disputed Ms Swan's claim that people repress memories of traumatic events as a psychological mechanism. He explained that adults have no memories of childhood under the age of three, and the alleged memories by two of the daughters at the age of one or younger were not possible.

In his summing up, Justice Sir Ian Barker told the jury they had to decide whether there was indeed repressed memory of sexual abuse which had been retrieved, and whether that memory was reliable. The jury concluded that these were not accurate memories of real events.

Bill was found to be innocent. It cost him $117,000 to defend himself. His three daughters were found to have made false allegations. Each had received at least $10,000 "compensation" from ACC, which is not affected by the outcome of the trial.

This case brings up many issues. There are currently men in prison convicted solely on the basis of "recovered memories" (reconstructed visualisations) of incidents alleged to have occurred two or three decades ago. If Bill had not been able to afford the best in legal representation and psychiatric expertise, it is very likely he would have joined them. Possible future actions for those falsely accused through "memory retrieval" include applying for court costs from the Crown, and legal action against therapists who have implanted or supported the false memories. The anomaly of compensating those who make false accusations might also be addressed.

Already there has been a trend for people who recover memories in therapy to later change their testimony and declare that in fact they had always remembered the trauma. One of Bill's daughters did just this. Although her counsellor had "shredded the counselling notes" and hence had no records from which to refer, she testified that her client had always remembered her abuse. However, examination of the daughter's initial police statement revealed that she had told the police that she had only discovered the abuse in the course of her therapy. Victims/survivors subsequently remembering that they had always remembered the abuse is not a course of action likely to occur in the US. This is because their Statute of Limitations allows law suits relating to alleged long ago events on the basis that the Statute starts from the time the "memory" was exhumed.

This is the first case in New Zealand where a jury has decided that "recovered memories" are not reliable evidence. Although a great step forward, there is still a long way to go. Many professionals believe that memories can be repressed and accurately retrieved, despite there being no scientific evidence to support this. A stream of US "experts" continue to teach that recovered memories are valid, and there is a reluctance within the sexual abuse industry to examine any evidence which challenges their beliefs. Critics who claim that some sexual allegations might be false are labelled as part of the "backlash" and accused of being "in denial" about sexual abuse.

1) Not his real name [back]

2) St Martin's Press, New York, 1994, highly recommended [back]