A Supreme Court Nominee, A Sexual Assault, and Memory

Is this an indelible traumatic memory or a false memory and misidentification?

Posted Sep 24, 2018

Brett Kavanaugh, the Supreme Court nominee, has been accused of sexual assault. The alleged assault occurred at a party when Kavanaugh was in high school. The victim, Dr. Blasey Ford, told no one when it happened. How reliable is memory after 35 years?

Memory is a critical aspect of this assault allegation. On the one hand, some have argued that traumatic memories are indelible. As described by Dr. Blasey Ford, the assault would have been traumatic since she feared she might die. And the memory continues to traumatize her years later; apparently having been discussed in therapy within the last 10 years.

On the other hand, some have argued that Dr. Blasey Ford has a false memory. Perhaps she was assaulted but has reconstructed various aspects of her memory. Crucially people have suggested that she is confused and has perhaps made an error concerning who assaulted her. After all, we know that misidentifications contribute to the erroneous conviction of many innocent people.

I’d like to address these conflicting claims about memory.

First, traumatic memories are not indelible. No special mechanism turns on during traumatic events to create long-lasting, detailed, accurate recollections. Nonetheless, trauma has important consequences for memory. With extreme emotional arousal, people may become narrowly focused. They will then be more likely to remember the central features on which they were focused. In contrast, they will have less clear and complete memories for other aspects of the traumatic event. Thus, we might anticipate that Dr. Blasey Ford would remember the assault and who perpetrated it. She will be less clear on other aspects of the event, including where the party was, the date, and even other people at the event. Traumatic memories often come to mind as involuntary and intrusive thoughts. These memories may be cued by various reminders in the world and bring strong emotional responses with them. Traumatic memories are thus rehearsed over an entire lifetime. But people often don’t disclose these memories until years later, if at all.

Second, misidentifications and false memories seem unlikely in this case. Most cases of misidentification involve strangers. False memories generally require the presentation of misleading information and suggestions. From the reports available, Dr. Blasey Ford knew Kavanaugh before the party. She also knew Mark Judge, the other man involved in the assault. She should have easily identified them at the party, during the assault, and afterwards. People who are arguing for misidentification are not making arguments consistent with research findings. (For anyone interested in false memories, I have written a more complete consideration of the possible role of false memories in this case in another blog.)

From the descriptions available, a reasonable conclusion is that Dr. Blasey Ford would have a generally accurate memory of the central features of being sexual assaulted. It is unlikely that she has constructed a false memory leading to misidentification. But we shouldn’t expect her memory to be perfect or to include every possible detail. She may not recall the exact date of the party or the location. She may not remember who else was at the party and may fill in people who normally went to parties she attended. She may even have inconsistencies in her memory. No memory is a perfect recording of every detail. The mind is not a video camera.

I want to make another important point about memory. We shouldn’t expect others at the party to remember the event at all. If they didn’t know about the assault, then nothing about this party would stand out. Their memories of this party would have faded in to the background of high school and parties after 35 years. For them, there was no event particularly worth remembering.

Of course, Judge Kavanaugh denies that the assault occurred. So, is this a classic “he said, she said” case? Is it impossible to resolve the truth? We may never know exactly what happened. But it is also important when evaluating such cases to consider supportive evidence.

We know that Dr. Blasey Ford did eventually disclose this sexual assault in therapy. Furthermore, according to the Washington Post article, her husband remembers her naming Kavanaugh at that time as part of the disclosure. That disclosure happened years ago, well before this nomination.

We also know that Kavanaugh and his friend Mark Judge were part of a group of high school students who frequently drank. According to Judge’s own writing, they often drank to excess. Both noted things about their drinking in their personal yearbook descriptions. Kavanaugh has made references to his high school, college, and law school drinking in other things he has written and said. We should potentially consider the possibility that alcohol has disrupted Kavanaugh’s and Judge’s memories of their high school parties. Excessive consumption of alcohol disrupts the consolidation of memories.

As I am finishing writing this post, there is another type of supportive evidence to consider. Another woman has come forward describing a sexual assault by Brett Kavanaugh when they were both in college. Often when considering the accuracy of memories, researchers assess whether other people have reported similar events by the same perpetrator. I suspect that we may learn additional information about both Kavanaugh and his friend Mark Judge over the next several days. If so, then a pattern of sexually aggressive behaviors may exist.

Overall, there is some confirmatory evidence.

In evaluating this case, memory isn’t the only important factor. You should also consider what standard of evidence you want to use. In evaluating whether Brett Kavanaugh should be appointed to the Supreme Court, should we evaluate this alleged sexual assault with the standard of evidence used in criminal cases. That is the well-known standard of beyond a reasonable doubt, used to err on the side of freeing guilty people to be sure that innocent people aren’t incorrectly convicted. But do you want to err on the side of putting a guilty person on the Supreme Court? Perhaps we should use the standard from civil cases – preponderance of evidence. Here the standard is more than 50% sure. Or perhaps you want to use a different standard. This is neither a criminal nor civil case. Instead it is an appointment to the Supreme Court. The individual will decide critical cases for all of society, including cases related to sexual harassment and assault. Perhaps you lean toward a standard of no reasonable suspicion, wanting to have confidence in all members of the Supreme Court.

We should also remember that our political biases may affect how we evaluate the accusation by Dr. Blasey Ford and denial by Judge Kavanaugh. Consider evaluating how you would respond if the nominee to the Supreme Court was proposed by a different president and held different political views. Are you confident you would respond in the same fashion?

As a cognitive psychologist who studies memory for trauma, I’ve also been thinking about the potential motivations of the people involved. I understand why Dr. Blasey Ford did not tell anyone at the time when she was a 15-year-old girl. I understand why she was reluctant to come forward now. She is being attacked just like many women who make statements regarding their experiences of sexual harassment, sexual assault, and rape. We need to stop attacking women for describing sexual violence.

I also understand why Kavanaugh is denying the assault. Perhaps it never occurred and he is being honest. And he may not remember the assault if he had been drinking – although that would not excuse the assault. Of course, he would also have a strong motivation to lie.

My conclusion? Memory is complex. But in this case. I suspect Dr. Blasey Ford is accurately reporting the basic features of her sexual assault; including accurately identifying the perpetrator.

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