How Does the Law Treat Repressed Memories?
Courts have failed to find a consistent approach regarding repressed memories.
Posted Feb 09, 2016
There has been, and continues to be, disagreement among psychologists, psychiatrists, and other mental health professionals regarding the reliability of repressed or recovered memories. Many psychotherapists still debate treatment issues, including ethical issues and clinical techniques and practice.
On one hand, studies indicate that significant numbers of abuse victims report a loss of memory of the abuse, at least at some point in time. On the other hand, research has also shown that false memories can be implanted. According to the American Psychological Association, it is not possible to distinguish repressed memories from false ones without corroborating evidence.
Memory generally consists of three processes:
- Encoding (the process of forming a memory code in order to get information into memory);
- Consolidation/Storage (maintaining encoded information in memory over a period of time); and
- Retrieval (recovering information from memory storage).
Errors in any of the three processes may lead to false memories. For example, false memories may be formed at encoding if a memory of an imagined event is falsely remembered as a perceived event. False memories may also be created at storage, as recent studies have indicated that factors such as sleep affect memory consolidation. Lastly, false memories may be created at retrieval, especially if it is induced by particular cues or tasks.
How have courts dealt with repressed memories and the risk of false memories? Courts tend to be all over the map.
Many criminal cases have been based on witnesses' testimony of recovered repressed memories, often of alleged childhood sexual abuse. In some jurisdictions, the statute of limitations for child abuse cases has even been extended to accommodate the phenomena of repressed memories as well as other factors. (The statute of limitations is the deadline for bringing a case after an event has occurred). On the other end of the spectrum, courts have also rejected false memories as evidence, deeming it inadmissible due to lack of reliability.
The 2015 Trial Objections Handbook (2d ed. § 3:9) proposes:
Undoubtedly repressed memory testimony can be unreliable, especially if the memory was elicited under guidance of a therapist with an ideological agenda. Nonetheless, exclusion seems inconsistent with the generally permissive approach of [the Rules of Evidence], which purports to allow all witnesses to testify, whatever their defects, in the absence of a codified rule of exclusion. If witnesses who have insane delusions can testify, then it seems inconsistent to exclude the testimony of sane witnesses who claim to remember a long-repressed event. And once they are allowed to testify, it seems that expertise about the nature of repressed memory should also be received, providing that it meets the requirement of scientific validity.
Whether courts will adopt this approach going forward is left to be seen. However, one thing is clear: as long as controversy and confusion continue among mental health professions, that same controversy and confusion will be reflected in the court system.
- 4 Litigating Tort Cases § 54:13.
- C. Dalenberg & E. Carlson, Ethical issues in the treatment of the recovered memory trauma victims and patients with false memories of trauma, in S. Buckey, Ed., The Comprehensive Textbook of Ethics and Law in the Practice of Psychology (New York).
- Susan Roth and Matthew J. Friedman, Childhood Trauma Remembered: A Report on the Current Scientific Knowledge Base and its Application, 7/1 J. Child Sexual Abuse 83, 88–89 (& literature cited therein) (1998).
- See E.F. Loftus & J.E. Pickrell, The formation of false memories, 25/12 Psychiatric Annals 720 (1995).
- Rasch B, Born J. About Sleep’s Role in Memory. Physiological Reviews. 2013;93(2):681-766. doi:10.1152/physrev.00032.2012.
- Ramona v. Superior Court, 57 Cal. App.4th 107, 66 Cal. Rptr.2d 766 (1997)
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