When someone is falsely accused of sexually abusing someone years or decades ago, probing the quality and reliability of the accuser’s memory often becomes the only and best defence strategy. This strategy can be difficult to achieve success with, given the leeway courts give to complainants who don’t recall alleged incidents coherently or in a linear timeline, and sometimes claim to not have had a memory of alleged incidents until some years later - ‘recovered’ memory.
That, coupled with courts that are content to ignore or minimize relevant contextual narratives about the dynamics between the complainant and the accused at the time the allegations are made (ie: custody battles, family disputes, parenting styles, volatile relationships, etc.), creates difficult hurdles for the innocent accused to overcome false claims against them.
Take for example a recent case out of British Columbia where the complainant - a teenage boy claiming his mother’s live-in boyfriend had physically and sexually abused him 9 years earlier - told the court he had no memory of sexual abuse when he complained to his custodial father that his mother’s boyfriend locked him in the basement and choked him one summer, nor did he complain of sexual abuse at any time to his mother.
In this case, the accused person, Mr. H., denied that he ever harmed or sexually abused the boy and testified that he was disciplining the boy and his sister with timeouts by separating them and isolating them in different parts of the house. While Mr. H.’s method of disciplining the boy by putting him in the basement instead of his bedroom may not have been ideal, the trial judge took his unconventional parenting style one step further by using it against Mr. H.’s credibility and to prove that he intended to isolate the boy to sexually abuse him, ultimately convicting him of sexual abuse and unlawful confinement.
With regards to the boy’s memory, the appeal panel unanimously found that the trial judge misused the boy’s varied testimony about not having a memory of sexual abuse at the time of reporting the timeout incident. They said the boy’s lack of memory was one of the primary reasons the defence argued the boy’s testimony was unreliable, and that the outcome of the trial could have been different had the trial judge not misapprehended the memory evidence.
“The [complainant's] lack of memory…was more than a peripheral detail in the unfolding of events. It was one of the primary reasons Mr. H submitted the complainant’s testimony was not credible or reliable.”
- Justice Marchand for the panel, R. v. M.P.H.
Courts also give leeway to complainants that claim not to have realized what happened to them was sexual abuse until some years later due to confusion, denial, minimization, shame, self-protection, or protecting the perpetrator.
But who’s to say such claims can be verified as true when there was no other witness, no forensic evidence, no medical records, and no verifiable evidence such abuse ever took place? This is where experts can be useful to help judges and juries decide on the reliability of memories that aren’t corroborated by any other solid evidence.
Anybody of any creed, status, or intelligence can wrongly believe something happened to them in the past when it never did or was a much less sinister event than later recalled. Memory distortion is not a novel concept. Any adult can attest to recalling a particular childhood event that another family member recalls differently and sometimes something as simple as an old family photo can resolve such memory distortions.
There are a myriad of effects that can create distortions of events that never occurred or that occurred differently than later recalled. When memory distortions become the subject of criminal sexual abuse cases, the falsely accused person faces the difficult hurdle of proving their innocence or raising a reasonable doubt about their guilt.
In today’s legal climate where assessing credibility can be the sole deciding factor in such cases, probing the reliability of memory is often misinterpreted as attacking the credibility of the complainant.
In the absence of understanding the inherent unreliability of memory, prosecutors, judges, and juries may resort to a misapprehension of the evidence, stereotypes, myth-based reasoning, or prejudicial bias when determining that the accused person is guilty when they are innocent.
Unfortunately, a mountain of case law exists to justify wrongful convictions in such historical allegations with the slant that every attempt to prove the unreliability is instead an attack on a victim’s credibility, dignity, and privacy, making such wrongful convictions near impossible to overturn.
When trying to create doubt around the reliability of the accuser’s historical memory, bringing in a qualified expert on memory distortions can help the falsely accused mount a vigorous defence. But expert evidence is a touchy topic in the legal arena and some judges may deny the defendant the opportunity.
Take, for example, a recent case out of Alberta, R v SKM, 2021 ABCA 246 (CanLII) where the accused man maintained that his niece’s recollections of being abused by him between 1985-1988 were the product of false memories and wanted to bring in expert evidence by Dr. Deryn Strange, a psychology professor with credentialed expertise in the consequences of distorted memory, the techniques that elicit false memories and the legal implications of false memory.
The trial judge, however, rejected admission of Dr. Strange’s evidence largely because he determined it was unnecessary for the defence and that it “would bear on the credibility and truthfulness of the complainant”. With this reasoning, the judge errantly conflates credibility with reliability. The judge also wrongly assumed that a basic instruction for the jury to consider the possibility of false memories would be sufficient for the jury to consider and that the jury has enough life experience to be able to determine whether or not the accuser’s memories were false.
“The danger lay with allowing the complainant’s evidence to go before the jury without the jury hearing the expert’s scientific evidence on the reality of false memories.”
- Justice Wakeling for the panel, R. v. S.K.M
The appeal panel unanimously overturned SKM’s convictions with reasoning, in part, saying:
“In our view, it is not that the expert’s evidence was dangerous in the sense that it would usurp the jury’s role in assessing the complainant’s credibility; at trial, all parties agreed the complainant was a credible witness and Dr Strange’s evidence would have said nothing different. Rather, in our view, the danger lay with allowing the complainant’s evidence to go before the jury without the jury hearing the expert’s scientific evidence on the reality of false memories; more importantly, how false memories may develop and come to be believed over time.”
The issue of false memory and how it can be elicited by external influences is not new to Canadian courts. In 2007, the Supreme Court of Canada (SCC) ruled in R. v. Trochym, 2007 SCC 6 (CanLII) that witness testimony elicited post-hypnosis is inadmissible:
“Such evidence is presumptively inadmissible for evidentiary purposes. While the guidelines play an important role in limiting the possible exertion of influence during a hypnosis session, they are problematic in that they are based on an assumption that the underlying science of hypnosis is itself reliable in the context of judicial proceedings.”
However, this ruling is specific only to admitted hypnosis, leaving open the possibility that other memory retrieval techniques are being used in therapist offices and group sessions eliciting potentially false memory, but isn’t necessarily being admitted to in a court of law. Some examples of questionable memory re-shaping techniques include dream interpretation, age regression, imagistic and feelings therapy, and trauma symptom checklists.
In 2017, Reverend Brent Hawkes was acquitted of sexually abusing a male high school student back in 1976 when Hawkes was a young basketball coach. The accuser, Mr. C, testified that he joined a men’s group and heard other stories of sexual abuse. During that time he began to write “his story” which came under heavy scrutiny by Hawke’s defence attorney.
Hawkes successfully admitted an expert witness, Dr. Timothy Moore, to give evidence for his defence. Dr. Moore, a psychology professor at York University’s Glendon College and Chair of the Department of Psychology, testified about imagination inflation, the constructive nature of memories, and the effects of alcohol on memory. All of which the judge found “particularly informative”. When acquitting Hawkes, the trial judge, Justice Tufts, analyzed Mr. C’s evidence saying,
“When interviewed by the police he simply read what he had prepared from his therapeutic sessions. As was pointed out in his cross-examination, his therapy sessions are centered around how individuals feel rather than the accuracy of their accounts. It is not whether a person’s “story” is accurate, it is how they feel and the pain and harm that they experience. This is understandable. However, it is not what a criminal investigation is about, and more particularly it is not what a criminal trial involves. This proceeding is concerned with facts and provable facts and when those facts form the basis of the elements of an alleged criminal offence, whether those facts can be established and proven beyond a reasonable doubt.”
While Hawkes was rightly acquitted in this case, another judge or jury may have still convicted him by minimizing or ignoring the peculiarities of his therapy sessions, especially if the judge denied the admission of Dr. Moore’s expert evidence on memory.
Conversely, expert evidence that aims to explain ‘how victims behave’ before, during, and after a sexual assault is often trotted in by Crown prosecutors to bolster an accuser’s credibility. This tactic is the inverse of existing case law that forbids defendants from submitting theories about how their accuser’s behavior makes them less credible or believable.
Writer Emily Yoffe wrote an illuminating article for The Atlantic on the topic of junk science undermining defence against sexual assault describing the ‘neurobiology of trauma’ playbook used to reinforce a complainant’s account of alleged sexual assault almost always including the word “frozen”.
To freeze or be frozen during a sexual encounter is a common buzzword invoked when the accused person claims the encounter was consensual, the circumstances support a likely consensual encounter but the accuser needs to justify why she followed through with sexual acts without actively resisting or saying “no” or “stop”.
One Ontario judge denied a Crown’s admission of a self-described expert in ‘neurobiology of trauma’ highlighting the insidious practice of Crown prosecutors seeking convictions using junk science to bolster an accuser’s credibility and believability. The judge found Dr. Janine D’Anniballe, a counseling psychologist and advocate for victims of sexual assault, did not meet acceptable criteria due to her lack of primary research in the neurobiology of trauma and the lack of any research presented to support her theories on typical behaviors of sexual assault victims.
“In this case, the Crown seeks to rely on a description of unquantified typical behaviors, and would ask the jury to draw inferences from those typical behaviors.”
- Justice Lemay, R. v. Ennis-Taylor
That combined with her inability to be impartial due to her statements about always being partial toward victims of sexual assault meant that the prejudicial effect of her evidence would outweigh the probative value, rendering an unfair trial against the accused.
The elephant in the room remains the issue of memory reconstruction by external influences or repeated self-suggestions prompted by self-help books like “The Courage to Heal” and the consequences of determining incorrectly whether those memories are false. Judges and juries don’t have the scientific or psychological background to adequately discern the difference and existing Canadian case law doesn’t go far enough to uniformly safeguard the innocent accused from being wrongfully convicted by false memory.
In 1998, after a rash of Satanic panic-era criminal cases involving dubious recovered memory techniques, Canadian defence attorney Alan Gold and then-president of the Criminal Lawyers Association called on then minister of justice, Anne McLellan to review all criminal convictions involving recovered memory:
“Many courts in the United States have begun to recognize the injustice of convicting people based on recovered memories, yet the “now discredited concept” has been applied in scores of cases in Canada, Mr. Gold wrote. “Real or not, such alleged memories are too readily confused with the results of suggestion and confabulation to have any degree of reliability,”
His plea fell on deaf ears and since then an unknowable amount of wrongful convictions in this area of sexual assault law continue to occur.
However, there are judges who do recognize that careful scrutiny of a complainant’s recall of alleged historical sexual abuse is of utmost importance and are careful not to wrongfully convict. In a recent unreported case out of the Ontario Court of Justice, R. v. J.G., Diana Davison assisted criminal defence attorney, Joseph Neuberger, in defending J.G. toward a successful acquittal. In his reasons for acquitting J.G., Justice McCarthy wrote:
“The reliability of [the complainant’s] memory is integral to the Crown’s case. When her memory takes on the appearance of a chalkboard which can be erased and rewritten at will, her evidence loses all reliability.”
- Judge McCarthy, R. v. J.G.
In an ideal legal world, and for the sake of the integrity of the criminal justice system, reasoning such as Tuft’s and McCarthy’s should be more commonplace when fallible memory is the only evidence of a historical crime.