Should Evidence of Repressed Memory be Allowed in Court?

Introduction

In most countries especially in the western world including Australia, USA, Canada, UK, and others, the use of repressed memories in courts has resulted to conflicts in the judicial systems. In some countries like Australia, there are organizations like False Memory Association which has been formed by those (mostly fathers) who have been accused on the ground of repressed memories by their accusers. There are many questions which have been raised concerning the reliability of repressed memory taking into consideration that most people usually undergo a therapy process and in the course of their therapy, they come up with cases of traumatic childhood abuses (Lindsay, 2006).  . With the Australian judicial system at a cross road, the main question regarding the use of repressed memory has been whether it can be used in trial based on the growing number of cases based on repressed memory and the resistance it has been receiving from the accused and other concerned bodies.

What is repressed memory?

Repressed memory can be taken as a theoretical concept which in most cases describes memory which is of traumatic nature which has become unavailable to recall. It is also referred to as motivated forgetting where due to the effects of a trauma individuals will suppress or will block out any painful or trauma  in their life.  Repressed memory has been confused with amnesia but amnesia describes an instance where memories are not stored or they are completely forgotten. On the other hand repressed memory may be real but individuals will do their best to repress it due to its effects or due to the negative feeling that may be elicited once they remember it. For example when one undergoes a traumatic experience like rape or any other form of sexual abuse, one is likely to suppress the memory of such incidence due to the pain they may be feeling upon remembering. (McNally, 2005)

In most cases, repressed memories describe the memories which are dissociated from individual awareness.  This means that an incidence may occur to you which you are not aware of but later which you may become aware of. For example, many children who are not exposed to sexual abuse may not be aware of it in their early life since they may not associate it with any effects in their normal life. But later in their life, they may become aware of these incidences. (Pennabaker, 1996)

Theory of repressed memory

According to the proponents of psychological theories exploring repressed memories, it is argued that individuals may at times recover the repressed memories many years or decades after the incident happened to them.  In most cases this may occur spontaneously and my be triggered by a factor like smell, taste, or any other which  may closely related or associated to the repressed memory. It may also be triggered by a suggestion of a counselor in the process of psychotherapy. (Elinor, 2004)

The concept of repressed memories can be traced to Sigmund Freud in one of his essay ‘On the etiology of hysteria’ which was published in 1896. However Freud later abandoned this theory and replaced it with the concept of ego, super ego and the id. The concept was later expanded by Friendrich Nietzsche who suggested an active and conscious thought management method in his second essay on ‘On the genealogy of morals’. Since then the subject has remained controversial in psychology. (Powell, 2005)

Theories trying to explain this concept assert that repression may be a method which can be used by individuals in order to cope with traumatic incidents and memories in their life by pushing such memories out of their awareness. When a traumatic incidence happens to a child, repression method may be used in order to help the child to continue with the attachment formed with the person they depend on for survival even when that person has inflicted such a trauma to the child.  However research has also shown that repression can also exist at social levels. (Taub, 2006)

Repressed memory in Australian courts

Since the 1990s, child sexual abuse and violence against women has become a major social political issue in Australia. In the line there have been increased court cases on sexual abuse and the recent flair has been the use of the repressed memory by some women who have given shocking evidences of their childhood sexual abuse cases. (Hardy, 2001)

There have been many crime cases in Australian courts based on repressed memories. Notable among this case was in 1994 in Town of Bunbruy where a man was accused o more than 42 counts of sexual offences committed on his two daughters. The two women in their 30s had recovered their memories in a hypnotherapy and counseling session for their marriage problems.  In the process they recovered memories of rape, torture, satanic rituals, sodomy and others. However after six weeks of trial, the Supreme Court jury found the man innocent on all the charges citing unreliability on the use of the memory to sustain evidence for such trials. (Magner, 2000)

Should it be used in Courts?

In one of the research to review the existence of repressed memory, an undergraduate student at the University of Washington devised an experiment which he aimed at looking at the existence of repressed memory. In the design of the experiment he implanted a false memory on his 14 year old brother Chris by providing a book to him which had four stories which he purported to have been real events that happened to Chris in his early life.  Three of the stories were really true while one of the stories was false.  Then James requested Chris to scribble some notes about each of the story for the next six days.

The false story had described an event where Chris has actually been lost in shopping mall. For the six days that Chris was to write about the story, he vividly remembered all the events in great details and when he was interviewed in a tape he remembered all the events at length. Then James informed Chris that he had never been lost in any shopping mall. But Chris could not agree with his brother and he gave a whole story of how he got lost and started looking for James and when he was crying, his mother came reprimanded him never to do that again. He asserted that the real event which he had actually read in a book actually happened to his life. When Chris was 19 and the same question was asked, he asserted that his memories were real and they actually happened. (Coan, 1997)

There have been arguments that repressed memories are actually not true and they are induced by some events that happen in our life and their consequential association with something.  Environmental factors like books, TV, Victims groups and others are argued to play a central role in inducing repressed memories to victims. As can be draw from this story, it is clearly evident that Chris was induced with a repressed memory from what he had read in books. (Davies and Dalgleish, 2001)

The use of repressed memories in the criminal justice system has been compounded by the fact that most of the judicial cases which have pitted daughter against their father are based on repressed memories recovered during a psychotherapy session (Memon and Young, 1997). This means that they could have been induced by the therapists. In case where the therapist actually mentions the existence of childhood abuses, the victim can easily connect that with what they have seen in their environment especially at time when there is increased awareness of sexual abuse and violence against women.

A number of researches have shown that in a traumatic event, a victim will concentrate on the central feature rather than the peripheral details of the incident. McClellan (2006) argues that this is may have serious effects in a trial if the judge or the jurors associated the central memory for the peripheral details. There are also problems which are associated with the identification of color in the repressed memories which is one of the important peripheral details that are used in trials. (Loftus, 1974)

With such compounding factors on the reliability of repressed memories, this paper would recommend that the Australian criminal justice system should not adopt the use of repressed memory to give evidence in criminal preceding. In upholding the principle of a criminal justice system which is to prove the accused guilty or innocent beyond the provable shadow of doubts, the use of repressed memory remains controversial and doubtable and therefore it may erode the applicability of this principle.

Conclusion

In the recent past, there have been increased cases of childhood sexual abuse and other crimes in our courts which have been based on repressed memories. This has pitted daughters against their fathers and most case led to the break up of families.  There are studies which show the repressed memory can be induced by the environmental factors and therefore there is existence of false repressed memories. With such doubts over the  concept this paper assert that the use of repressed memory in criminal justice systems can hinder the upholding of principle of free and fair trial and therefore it should not be used in our criminal justice system.

Reference:

Coan, J. (1997): Lost in a shopping mall: Experience in controversial research. Ethics and Behavior, Vol. 21: 273-274

Davies, G. & Dalgleish, T. (2001): Recovered memories. Australian Journal of Psychology, vol. 56

Elinor, M. (2004): True and false memories through perceptual implicit memories. Australian Journal of Psychology, vol. 5

Hardy, S. (2001): Psychology and law. Australian Journal of Law and Society, vol. 194

Lindsay, R. G. (2006): Repressed Memory Evidence in Civil Sexual Abuse Cases. Bepress Legal Series, Working Paper 1181

Loftus, E. (1974): Reconstructing memory: The incredible eyewitness. Psychology Today, vol. 116

Magner, E. (2000): Recovered memories and Australian courts. Australian Journal of Clinical and experimental Hypnosis, Vol. 28(1): 30-41

McClellan, P. (2006): Psychology, common sense and law. Local Courts of New South Wales, Annual Conference 2006

McNally, R. (2005): Trauma and Memory. Journal of Psychology, Vol. 50

Memon, A. & Young M. (1997): The recovered memory Debate. Legal and Criminological Psychology, Vol. 2(2)

Pennabaker, W. (1996): Recovered memories in context. Psychological Bulletin, vol. 1(3)

Powell, R. (2005): Did Freud report on memories of sexual abuse as fantasies? Journal of Experimental Psychology, vol. 21

Taub, S. (2006): Treatment of recovered memories of child abuse. Journal of Legal Medicine, Vol. 7(3)