Dr Bryan Tully
expert witness psychologist
The following is an article published by
Dr Bryan Tully member of the Academy of Experts.
Special legal requirements for competent forensic assessments of questionable
"Recovered Memories" of childhood sexual abuse in criminal trials.
the Psychologists at Law Group:
forensic psychologists providing expert evidence.
In Farringdon D, Hollin H & McMurran M (Eds.), Sex and Violence: The Psychology of Crimes and Risk Assessment, Harwood Academic Publishers (2001).
Menu:
introduction
case examples: findings and comments
case 1
case 2
case 3
case 4
legal principles + forensic psychological
assessments
confidentiality & privacy
admission of expert testimony
co-operation of experts
coaching: counsel vs. experts
references
SHIFTS OF LANGUAGE AND RHETORIC CONCERNING "RECOVERED
MEMORIES", AND THE QUESTIONABLE INTEGRITY OF DATA REPORTED FROM SOME
RESEARCH STUDIES.
Since the early days of the debate over putative "Recovered Memories"
there has been a steady shift away from the language and definitions of "massive
repression", and recovery therefrom of memories of repeated, extensive,
traumatic childhood sexual abuse. There has been a considerable loosening
and blurring of terminology. Currently such "Memories" may be stated
to have been recovered from amnesia, or simply "delayed", "inhibited"
or "cognitively avoided". A number of writers have pointed out that
many cases of recall following a period of forgetting are everyday and natural
and can be accommodated within standard and non controversial theories of
human memory (Roediger et al 1997, Schooler et al 1997). There is great potential
to be misled by referring to these as "recovered memories", pooling
them with possible disputable cases and then claiming that some of this overall
pool have some corroboration. Andrews et al (2000) provide an example of such
overinclusive methodology. Some people talk in a colloquial way about memories
having been completely "blocked out" or "buried". Closely
following their verbatim accounts sometimes makes it clear they are not actually
claiming amnesia, simply some relevant trigger which brought specific memories
they had not thought of for a long time, back to mind. There are many studies
where people report historical trauma and say quite directly that there was
a time when they had less memory than currently (when they are actively reflecting
on the past) or indeed no memory at all of these events (see Brown, Scheflin
& Hammond 1998 for a review of many). Unfortunately, these utterances
are not reliable pointers to post traumatic amnesia as Read and Lindsay (2000)
demonstrated when asking people to recall in a sustained way ordinary autobiographical
non traumatic events of e.g. summer camps. Similar proportions of subjects
claimed less or lack of memory and indeed the more they reflected and recalled
in current time, the more they biased their metamemorial judgement of their
past state of memory. Another type of case has been reported by Schooler et
al 1997. A woman claimed a "Recovered Memory" and it was presented
as such in the professional literature, even though it was also documented
that the woman concerned recalled these events several times in the past,
but forgot she had done so. Some writers (e.g. Andrews et al 2000) have collected
retrospective opinions from psychotherapists through telephone surveys without
making any differentiation as to the nature of claims of memory. There are
in addition perhaps several hundred short case summaries published in the
literature of claims of significant and true "Recovered Memories".
Unfortunately many of these authors (e.g. Christiansen and Engleberg 1997,
Schooler et al 1997, Cheit 1998) have been unable to provide any further documentary
evidence beyond their short published summaries. In many ways it is only when
the issue of "Recovered Memories" comes to Court that any reasonable
degree of scrutiny is possible. Psychological science may be called to serve
the Court's purpose, but this paper argues that Court proceedings and the
forensic examinations pursued in relation to those cases, actually throw light
on the scientific disputes extant in this controversial area. This paper deals
with serious and controversial "Recovered Memory" phenomena such
that either some theory of reversible repression or dissociative amnesia is
required, or else the alternative conclusion is arguable, that the claims
are such, that ordinary mechanisms of memory would have to be stretched to
breaking point to accommodate them, as Schooler et al (1997) have put it.
The "Memories" are questionable. Initial capitals are used to denote
this more strictly defined use of the term and to differentiate them from
theoretically non disputable forms of forgetting and remembering.
In all the following four cases there is arguably some corroborative evidence. They provide a foundation for the purpose of this chapter, which is to argue that special legal requirements are required so that satisfactory forensic psychological assessments can assist the Court.
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Case 1 Yes he raped me, no he didn't
An adult daughter A, with psychological problems, heard news that a man B,
connected with a youth club she used to attend, had been convicted for extensive
sexual abuse of children. She wondered if another worker there C, whom she
had disliked, might have also been involved and mentioned this thought to
her mother D. Her mother went to police who arranged two interviews with A,
but nothing was forthcoming. Police referred her to a psychotherapist who
diagnosed trauma without taking a history, and "Recovered Memories"
began to emerge over a period of months. Accounts mushroomed to include multiple
group organised sexual abuse often preceded by administration of hypnotic
drugs. Mother took A to locations identified in the conviction of B, and showed
photos from old papers. Statements taken at this time documented there was
no recognition. Each set of new memories were recorded and dated by psychotherapist,
and decanted into half a dozen police statements within a week or so of each
therapy session. C was arrested and indicted. Inconsistencies in respect as
to whether A was raped by C or B appeared over the course of statements. The
psychotherapist explained this as arising from residual attachment of A to
the accused and that she needed to defend her conscious ego from the unbearable
pain of his allowing her to be raped by someone else. With therapy, A was
able to determine finally that it had been B who raped her, with the now accused
C assisting. Then A began to recall that when she had seen photo of B from
newspaper photos, she had recognised him immediately as part of the sexually
abusive group she had been subjected to. Complainant A was not available for
psychological assessment. The Crown Prosecution decided not to proceed with
the case after considering this author's report setting out the above.
Comment: This case exhibits vast staggered mushrooming of memories, typical of some kinds of "Recovered Memories" cases. Changes and instability were identified in not only the content of the remote "Recovered Memories", but also in the recent process by which the Memories came to mind. What was "remembered" to have been recently recognised (in this case from newspaper photos) was also subject to change. In this case, the extension retrospectively of how long it had been since A claimed she had recognised an abuser looks like an example of what has been described as the "knew it all along phenomenon" (Fischoff 1982), a general tendency to misremember how long something has been known, when that is objectively not the case. In this case, the mother who had always thought there must be some reason why this daughter was not successful as her other two, the police officer and the psychotherapist were all far more informed about the background case in relation to the conviction of B and provided an active and powerful co-operative triad of psychological midwives to the "Recovered Memories" of A.
Case 1
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Questionable "Recovered Memories" arising from credible non Recovered Memory
Sister A reported a long history of incestuous abuse by father from her early teens to mid twenties. The account was coherent, detailed, and recognisable in respect of both victim and offender behaviour. There were no "Recovered Memories". Father defendant, B, had spent most of his time with A during her pre-teen and teen years, generally ignoring her sister, his other daughter C, who spent most of her time with mother D. Eventually the mother and daughter C and a brother, E, left the family home and emigrated to Canada. Mother and daughter C always suspected there was something unhealthy about A's relationship with her father. Contacts were maintained by phone and letter as the daughters grew up into young adulthood. One day A told her sister on the phone that her father had been sexually abusing her for many years since her early teens. She described how this had started. Father had come into the bathroom and explained she would need to have her vagina widened and he would help by using his fingers. Inexorably over time this initial assault led to everything else including full intercourse. Sister C in Canada and her mother immediately recognised this story. When C was a young teenager her mother had tried to assist her fit a tampon. Mother mentioned the difficulty to father. Father had come into the bathroom and used his fingers to help widen the vagina. C was uncomfortable about this, but reported mixed feelings since the fact her father was paying her any attention at all was unusual and was welcome for that reason. Once out of the bath, she was stood up against a wall and a further penetration took place, which was painful. Now she ran away crying and a further effort by father to follow up with her was completely rebuffed. Father never bothered her again. Sister C and mother then reported to the Canadian police and thence the police in Birmingham, England visited A and obtained a detailed statement from her. At this point there was no whiff of anything having been Recovered. Common complaint against the Defendant constituted a very strong case.
Then, for reasons which were never properly determined, but which seemed to entail a serious anxiety state, sister C in Canada began to undergo a serious psychological deterioration which was to interrupt her university studies. She turned for help to psychotherapists who considered this could all be attributed to her childhood sexual abuse and - as is not uncommon with psychotherapists - did not take a full history or made a formal psychological formulation before starting to "explore the issues". Working frequently as they did with putative victims of crime and in association with the legal and law enforcement services they made a point of writing how they "never suggest, never lead". Nonetheless from their own records it was plain the therapy sessions were very long, 2-3 hours or 3-4 hours. Moreover they were mixed with additional group therapy sessions with many other survivors of sexual abuse, all sharing their histories. The psychotherapists stated they used the model of Remembrance and Mourning developed by Judith Herman (1992). This purposely requires a detailed reconstruction which transforms wordless and static traumatic memories into an integrated life story narrative. The role of therapy is to provide the music and words to snapshots or silent movie imagery. The uncovering (from repression) work is timed to remain bearable to the patient. Whatever the problems are in expressing, the therapist aids the patient give a full and vivid description. As an illustration, Herman cites approvingly Jessica Wolfe's approach (in her case with combat veterans) "We have them reel it off in great detail as if they were watching a movie, and with all the senses included. We ask them what they are seeing, what they are hearing, what they are smelling, what they are feeling, what they are thinking".
C began to reel off in great detail a whole mushrooming of new sexually abusive experience both before and after the incident she had always recalled. This rapidly overtook her sister's experiences in extent and seriousness. They reached back in age-time further and further to include events when C would have been 2, 3 and 4 years of age. Sister A then wrote a short letter to the police "I, A, will defend my father B against my sister C". It was enough to make any prosecutor despair. The situation had been transformed from common complaint by witnesses presenting as joint victims and allies, to a form of victim sibling rivalry. Not only was this likely to undermine the Prosecution but to damage the relationships between A and the rest of her family and possibly therefore the rest of her life. The latest psychotherapy notes which were delivered just before the trial was due, documented how the process of C Recovering what she believed to be Memories had now extended to include abusive activity by her sister A, and with her brother, frequently without father being present. As again is so often the case, even after the hundreds of hours of therapy, C's psychological state was hardly restored. In the end the Prosecution dropped proceedings in respect of C, and the Defence pleaded to an indictment of incest in respect of A. Neither complainant had been available for direct assessment.
Comment: The first problem with C's mushrooming of memories during the Remembrance and Mourning procedure is that this was simply inconsistent with the schismatic lifestyle the family had developed and was confirmed by all members of the family. Secondly, as the process evolved it reached further back in time into the period of childhood amnesia, where it is not possible to recall detailed individual events in the way they were in fact described. The process of therapy described has many features in common with circumstances where vulnerable people become highly suggestible and will recount false confessions of matters which they are led to think might have happened and involved them (see Gudjonsson 1992, Ofshe & Watters 1994). If C's extended "Recovered Memories" had been essentially true, then her repression / dissociation / inhibition of memory must have operated perfectly for all memories and coping reactions prior to the events she did recall, and immediately afterwards. Her actual long term memory would have to have been an oasis in a desert of amnesia. Additionally, either, her brother E and sister A must have been lying in failing to corroborate her memories of their involvement, or both have suffered perfect repression / dissociation / inhibition of memories of childhood sexual abuse. This is a very important case if it is accepted that it is reasonable to consider C's later "Recovered Memories" as questionable and probably false. It shows that dubious "Recovered Memories" may arise in the context of non dubious stable long term, always remembered, normal, memory. There is of course no good reason or principle of psychological theory as to why this should not happen sometimes. The forensic assessor can usually be more confident when questionable "Recovered Memories" arise entirely and completely from nothing at all of long term memory, but the possibility of a mix of true and false cannot be discounted in many cases, nor a line drawn between them with the same confidence as in this exceptional case.
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A teenager A told her psychiatrist (Notes 1) she had been sexually abused by maternal grandparents, the Defendants B and C. She could give little detail, but her mother D, although sceptical at first, began to recover memories of her own sexual abuse by her parents viz. B and C. A was admitted to an inpatient unit (Notes unavailable) and started various therapies including family therapy with her mother. Before and arising out of family therapy came new material for both complainants and each made two statements to police. A policy was made by the family therapy team at the in-patient unit to treat all reports as true because mother and daughter corroborated each other. The second of each statement incorporated significant material from the other's first statement, producing a converging memorial leapfrogging. For example A first stated her grandparents never physically hurt her; she just felt she was expected to co-operate in their abusive activity. In her next statement she stated had been subjected to substantial physical abuse including near drowning in the bath, just as her mother had only recently said happened to her. Both women "Recovered Memories" of D's sister E (A's aunt) being involved, which E proclaimed no knowledge of, nor indeed any other abuse. Later A Recovered a Memory that her first step-father (D's first husband) had sexually abused her. D Recovered a Memory of her sister E being seen in bed 7 years ago with father B, who was then 68 years old. E claimed this was nonsense. That had prompted no memory of any thoughts by D at that time that this was odd or that her children might be at risk from her father. Both complainants A and her mother D had substantial mental health histories. D had recalled some years previously when she was suffering panic disorder (Notes 2) that when she was 4 years old she had been locked in a cellar by her parents B and C. That was a childhood panic inducing experience, but there was no way of telling from documents if this was a Memory Recovered for the first time then. In the weeks prior to giving a statement to police regarding childhood sexual abuse, she Recovered a Memory of why she was locked up. She now recalled watching an uproar in her parents' bedroom and what appeared to be a bloody abortion procured on her mother C. Then the bloody bundle was taken out and buried in the garden with a shiny spade. Claimed recollections of actual words spoken were recorded in police officer's notebook, but were not included in drafted statement. Subsequently both complainants reported believing the Defendants (a retired postman and his wife in their 70s, living hundreds of miles away in Scotland) had agents out looking to assassinate them. Subsequent psychiatric notes (Notes 3) indicated D was reporting that babies had been buried in the garden of more than one home. None of this was entered in the statements. The family therapy team refused to hand over individual therapy notes, but wrote summaries. These did not include full clinical histories or reviews of psychological treatments and assessments to date. Other healthcare notes (Notes 4) were later made available and included records of A's admission to a hospital Accident & Emergency department, just prior to her first ever claim to have been sexually molested. She had been taken to hospital by ambulance after claiming (falsely as it turned out) she had taken an overdose of tablets at a party. A physician noted her strange rocking movement, but only when the doctor entered the room. Mother D at this point expressed extreme scepticism over any claim of sexual abuse, but nothing was actually described. The Accident and Emergency doctors documented mother's information that her daughter emulated a character on a Television soap, including reporting voices in the head, taking tablets and thinking of suicide. When the General Practitioner's notes (Notes 5) were reviewed it was found the G.P. had suggested to A just one week before, that her self laceration behaviour could be a sign of having been sexually abused. Prior to this incident, A had decided not to see her own Psychiatrist any further (Notes 6) but had been seeing him without her mother's knowledge as mother was anticipated to accuse her of "craving attention for herself". Later, when mother changed her scepticism about sexual abuse to reporting similar memories this was a surprise and a basis for some emotional family therapy work. The complainants refused to be available for psychological assessment by the Defence instructed experts (this author and a Professor of Psychiatry), but a few weeks before the trial began, the Crown Prosecution instructed a hospital psychiatrist to examine the two women. The report was limited but expressed reservations as to the converging statements. The Prosecution decided not to proceed and sought to leave charges on the file. The Judge ruled the two Defendants deserved the comfort of a Not Guilty verdict.
Comment: This is a report of an extremely complex case. Hugely escalating "Recovered Memories" are evident. Where zealous clinicians and psychotherapists fixate on one hypothesis without a full and proper history being taken, that augurs badly for both clinical outcome and justice. The implications of possible personality disorder and delusional thinking were never considered in this case or explored as differential diagnoses. Once a serious police investigation was under way, it was wrong for a police officer to join a group therapy meeting where further testimony was being solicited from a vulnerable witness, and for the proceedings not to be written down verbatim and made available for those who were parties to the Court proceedings. Even without individual psychotherapy notes (needed to document the course of memorialisation, not to catch the psychotherapists out), this case had much which brought the complainants' accounts into question. Much of that was to be found in obscure corners of healthcare and hospital notes, especially of practitioners who were monitoring the complainants before and after the genesis of the questionable Recovered Material. This is a clear reason why this material should be disclosed and considered by police and prosecutors themselves in the first instance. Some of these more questionable aspects were absent from statements, which was itself misleading. Digging of a more literal sort is indicated if a woman is considered believable when reporting babies and aborted foetuses buried. Like a number of other contemporary "Recovered Memories" cases, panic disorder of some kind figures in relationship to a number of Memories of panic inducing experiences preceding "Recovered Memories" of childhood sexual abuse. There is no justifiable reason to by pass an expert instructed by the Defence if the Prosecution itself agrees that an expert opinion is useful. At the very least there should be permitted consultation prior to the examination. Clinical assessors seldom examine original notes from preceding professionals who have dealt with their patient. Forensic assessors should do so whenever possible.
A disabled nursing student A presented with continuity of memory of serious and persistent physical and emotional abuse by stepfather B. Depressed, she underwent therapy, and "Recovered Memories" of childhood sexual abuse, although not arising during therapy time (apparently so; one therapist was credited by A with knowing what had happened before she did). For two years A had sought out specialist books on remembering abuse, toxic parents etc. Journals, diaries, and poetry were disclosed & she agreed to be assessed by two Psychologists, this writer and a colleague instructed by the Crown Prosecution. Assessment was able to trace provenance of many ideas and memories through specific activities recorded in the journals etc. over a protracted period with many re-visualisations and re-writings of similar, evolving material. There was evidence of unusual imaginative capacity from religious experiences and going off on "imaginative journeys" with a friend. Much of the writing read like a novel with the subject referring to herself in the 3rd person or directly addressing "the child within". Apart from general "touching" on the bottom there were only a handful of more serious acts recalled, apparently attempted just the once each. Some scenes had been dreamed first and then embellished in writing. Feelings and flavours of abuse always came first. Experts' review of papers led to agreed reservations about memories arising simply from stable long term memory. The Prosecution then dropped their own expert witness. The Judge advised the Prosecution he was worried a sincere disabled and vulnerable witness might appear credible and the Jury needed to know if there were unusual psychological aspects outside their ordinary experience. This led to joint assessment of A by both Psychologists. The final report agreed that the assessment added clarification and detail to the doubts and reservations. After delay the Prosecution decided not to proceed after pleading to the Court they had always been a bit worried about this case!
Comment: Many "Recovered Memories" in recent times arise now outside of therapy time. Whether or not from within therapy, they always require the active entertainment of an idea (even if doubted at first) by the complainant. Active "memory work" by the complainant is the common factor (Ceci & Loftus 1994). Critics of certain therapists for "planting" false memories use the horticultural metaphor in a misleading way. Many complainants' minds are fertile ground for seeds which may arise from anywhere. Psychotherapists may play a more or less contributory role in fertilising and husbanding the growth of such active generative processes. Without the personal journals and the brave cooperation with the assessment by this complainant, the fuller understanding of what had been happening to her would not have been manifest. Her police drafted statement only gave the most equivocal of clues this was a complex case of questionable Recovered Memory. No-one, including the Crown Prosecution thought her always remembered credible accounts of physical and emotional abuse required any response, until the issue of sex arose belatedly.
IDENTIFYING BIOGRAPHICAL DETAILS HAVE BEEN CHANGED IN ABOVE CASES.
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"The Canadian Psychological Association recognises the very serious concern of child abuse and child sexual abuse in our society. The Canadian Psychological Association also recognises that justice may not have been served in cases where people have been convicted of offences based solely on "repressed" or "recovered" memories of abuse, without further corroborative evidence that the abuse in fact occurred. Developments in the state of our knowledge about repressed or "Recovered Memories" suggest that such memories, if they exist, may not be sufficiently reliable to serve as the sole basis for a criminal conviction. To the extent that some people may have been convicted of offences based solely upon the testimony of people's "Recovered Memories", the Canadian Psychological Association urges the Minister of Justice to conduct a special inquiry into this category of convictions".
Many professional psychologists would agree with the statement of the Canadian Psychological Association as it stands. This still leaves open the issue of what counts as reliable corroborative evidence and how far that stands up against other evidence which may throw that testimony into a different light. Although most professional associations have warned that there is no reliable way for true "Recovered Memories" to be distinguished from false ones, some strong advocates who appear as expert witnesses in England have told courts that the current scientific position is that "Recovered Memories" are only likely to be false if they have emerged under the most extreme of sustained suggestive pressure. Contradictory or more sceptical views are said to be an invention by the False Memory Societies and their Advisers.
The legal principle of disclosure is key to the scientific adversarial settlement of these issues. Disclosure of all psychotherapy and healthcare notes, journals and letters are necessary. Police notebook and investigative logs have been found to contain significant evidence. In England many miscarriages of justice can be seen due to a single minded drive to prove one obvious hypothesis. Without the preservation of the trail of development of memories then reasonable conclusions as to the provenance of such, is difficult and potentially misleading. There is a problem. In England the search for evidence which might assist a criminal defence case is often considered a "fishing expedition" and courts frown on efforts to discover otherwise private information. Direct attempts to obtain such from those who may be called by the Crown Prosecution as witnesses, risks a charge of attempting to pervert the course of justice. Only police investigators are expected to "fish" for evidence. The danger in these cases is not that prosecutors don't disclose all they find (although that sometimes is so) but that they haven't searched hard enough before wrapping up the minimum evidence needed to present a prosecution case based on the single hypothesis. Legal subpoenas may be necessary to overcome reluctance of therapists and their supervisors to hand over their notes.
In English criminal proceedings there is no compulsion for complainants to be psychologically assessed or even interviewed independently of the prosecuting authorities. In cases where intimate physical samples are considered crucial to a prosecution, it is almost unthinkable that a complainant would refuse such an examination, and it would be very unlikely that a prosecution would go forward if that evidence which could prove guilt or innocence was not forthcoming. To date there is no principle to compel complainants to have "Recovered Memories" examined as a precondition to a criminal prosecution. However a strong steer by a Court, has been known to influence the Prosecution to persuade the complainant to cooperate Examination of the complainant, although only undertaken in a handful of cases, has always led to a change of perspective, indeed an agreed one as between assessors, even if the assessors' overall views about the recovered memory debate may not be the same. In Scotland by some contrast, the interviewing of the other side's witnesses (including expert witnesses) is standard practice. The process is referred to as "precognition".
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Experts are required under English law to assist the court regardless of which party has instructed them. There is an expectation of impartiality and where that is clearly compromised, the courts have made their displeasure felt strongly. There has always been a tension between this expectation and the natural helpfulness obtained from an expert to the side who instructs and pays. Experts are trained these days to resist coaching by their own counsel and to avoid tactical traps set by cross examining counsel opposite. In "Recovered Memory" cases the coaching often flows the other way, especially if the complainant has refused to be psychologically assessed by the expert. Counsel will have one chance to conduct a revealing psychological examination by proxy during cross examination. This is not easy. If a tearful, shaking complainant enters the box, her demeanour will be granted as an allowance for her not answering counsel's questions fully. If counsel breaks into an "attack" mode this is likely to be counter productive and to alienate the sympathy of the jury. Here is the abuse being recapitulated in court. On the other hand where questions are gentle and exploratory and encourage the complainant to talk, even if it is not all exactly to the point, then material may be produced freely which actually is highly probative. In one case counsel elicited a completely new "Recovered Memory" from the complainant right there in the witness box. She Recovered what she had been thinking about a mark on her T shirt and what she thought her mother would think about that when she was just 3 years of age. Asked why she had never thought of this before, she stated that unless she was asked about something she wouldn't imagine herself back in the circumstances and see and hear what had happened. The jury's faces plainly expressed not their loss of sympathy for this complainant, but their unwillingness from this point to simply accept her whole story as an account of the defendant's villainy. They acquitted.
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