The Necessity of Memory Experts for the Defense in Prosecutions for Child Sexual Abuse Based on Repressed Memories

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I. REPRESSED MEMORIES OF CHILDHOOD SEXUAL ABUSE

A. The Repression Controversy

B. Repression of Memories of Childhood Sexual Abuse

C. Therapy and the Creation of False Memories II. LEGISLATIVE RESPONSE: EXTENDING OR TOLLING CRIMINAL

STATUTES OF LIMITATIONS III. PROCEDURAL REFORM: EXPERTS FOR THE DEFENSE

A. Why Expert Testimony?

B. The Content of Expert Testimony in Repressed Memory Cases

C. Admissibility Issues and Expert Testimony IV. CONCLUSION

Many States have recently enacted legislation that tolls or extends criminal statutes of limitations in cases of child sexual abuse.(1) These legislative actions parallel the tolling of the limitations periods in many states for civil suits based upon prior incidents of sexual abuse.(2) Most states took this action in order to increase reporting opportunities for abuse victims who, for either physical or emotional reasons, are not in a position to report incidents of sexual abuse that occurred prior to the victim reaching the age of majority.(3) These statutes have also opened the door to prosecution of alleged abusers based upon repressed memories of childhood sexual abuse recovered many years after the abusive incident.(4) The reliability of such memories has not yet been scientifically proven. Indeed, little research has been conducted on the subject. Nevertheless, many therapists believe in the truthfulness and validity of repressed memories, based upon experience with patients and anecdotal evidence.(5)

With the current lack of empirical proof of the reliability of a recovered memory, bringing serious criminal charges after the passage of many years based upon potentially unreliable and usually uncorroborated evidence is untenable. Not only are sexual abuse prosecutions based solely upon repressed memories of unproven reliability unjust under the basic tenets of our criminal justice system, they also present obvious practical difficulties in proving charges beyond a reasonable doubt. Allegations of abuse based upon repressed memories are often uncorroborated, since a long period of time normally elapses between the alleged abusive incident and the recovery of the memory. Juries, using common knowledge derived largely from media reports and personal experiences with memory, may accord undue credibility to repressed memories.

Prosecutions based upon repressed memories of childhood sexual abuse implicate a number of issues for potential defendants as well as for society. Defendants accused of sexually abusing children sustain irreparable damage to their personal and professional reputations even if they are ultimately acquitted. With such severe consequences at stake for potential defendants, the criminal justice system must question whether charges based upon uncorroborated memories of unknown reliability should be allowed to proceed. Furthermore, if research later proves conclusively that repressed memories are unreliable, a societal backlash may occur which could chill legitimate prosecutions of sexual abusers of children.(6)

This Note argues that since prosecutions for sex offenses against children based upon repressed memories are more likely to be instigated under newly extended or tolled criminal statutes of limitations, defendants must be provided with certain procedural safeguards in such cases. Specifically, due to the serious nature of these charges and their precarious evidentiary foundation, states that currently allow prosecutions based on repressed memories should adopt a bright-line rule requiring that, upon the defendant's request, a memory expert testify on his behalf.

I. REPRESSED MEMORIES OF CHILDHOOD SEXUAL ABUSE

A. The Repression Controversy

Most psychotherapists believe strongly in the concept of repression and incorporate that belief into their therapy strategies.(7) Sigmund Freud advanced the notion of repression as an ego-defense mechanism. …

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