Can recovered memories be trusted?
Ottawa Citizen Monday 4 May 1998
Can recovered memories be trusted? Justice minister rejects call for inquiry
The Ottawa Citizen
Justice Minister Anne McLellan says it is premature to call a special inquiry into the cases of men convicted of sexual abuse on the basis of victims’ “recovered” memories. The unusual request to Ms. McLellan for such a review is the latest salvo in a raging international legal and scientific controversy over whether it is possible to repress traumatic memories of childhood abuse and later recover them as an adult during therapy.
Alan Gold, president of the Criminal Lawyers Association, said in a recent letter to Ms. McLellan that there is an “urgent and powerful need” to review the cases of men convicted based on such “totally unreliable” memories. 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,” wrote Mr. Gold, a prominent Toronto lawyer who has campaigned against the use of “junk science” in Canadian courts. “Those men convicted under the older naive views continue to suffer, and some of them are still in prison because of it.”
Mr. Gold says he doesn’t believe that men are still at risk of being convicted solely on the basis of recovered memories but estimates there are “several dozen” wrongly convicted men in jail. “Today, except for a few intellectual backwaters, the professional organizations have caught up, they’ve blown the whistle. Recovered memories are joining electroshock, lobotomies and other psychiatric malpractice in the historical dustbin.”
His request for a federal review is supported by several dozen academics, psychologists and psychiatrists and the Philadelphia-based False Memory Syndrome Foundation.
Mr. Gold said the inquiry should be similar to the one conducted into the cases of 98 women who claim they killed abusive men in self-defence, but were still convicted of murder and manslaughter. After that report by Ontario Court Judge Lynn Ratushny was released last year, the federal
government announced it would pardon two women and erase the remainder of the sentences of two others. The Ratushny review was set up after years of lobbying by women’s groups, following a 1990 Supreme Court of Canada ruling that recognized battered woman syndrome as a defence to murder.
Mr. Gold wrote: “Given the systemic nature of the original injustice, and given the failure of Canadian courts to act on the problem even in individual cases, and given the ongoing suffering of those convicted without any adequate grounds, it is absolutely imperative that you act on this matter without delay.”
Ms. McLellan said she has asked her officials to study Mr. Gold’s letter, but she noted there is already a process within her department to review individual claims of wrongful conviction after all other avenues of appeal have been exhausted. “Traditionally, the issue of the reliability and admissibility of evidence, especially expert evidence, has been left to the courts to decide. However, I will monitor the case law in this area to ensure that applications (for review) are dealt with appropriately. A decision to do anything beyond this at this time is premature.”
Toronto lawyer Susan Vella, who handles many sexual assault cases, said Mr. Gold’s letter is another attempt by defence lawyers to “totally confuse the public.”
Ms. Vella said judges already carefully consider the reliability of a particular recovered memory before convicting an accused person. “I think it’s important to recognize that recovered traumatic memory is a delicate issue and has to be dealt with accordingly. It is not a black and white issue — not all recovered memory is reliable and not all recovered memory is unreliable. Sometimes it results in an acquittal, and sometimes it results in a conviction. It depends on the circumstances.”
Carleton University psychology professor Connie Kristiansen said that, contrary to Mr. Gold’s assertion, it is “blatantly obvious” from the academic literature that there can be recovered memories of traumatic events and that they can be as accurate as those that have never been forgotten.
“Everybody is clear that caution is necessary, but to claim that all recovered memories are by definition false is certainly overstating the literature to date and the research that’s been done,” said Ms. Kristiansen, who has tangled with Mr. Gold on several occasions. “It’s clear that accurate recovered memories are possible.”
While she doesn’t support Mr. Gold’s call to reopen numerous cases, Ms. Kristiansen agrees there is a need to develop ways of evaluating whether such memories are true. “But until there are criteria, I don’t know who could go around and figure out which recovered memory is true and which one is false.”
In the United States, there have been many lawsuits in which therapists and hospitals are being sued by patients who accuse them of implanting false memories of abuse by using coercive and suggestive therapies. In the most prominent case, a Chicago woman and her family accepted a $10.6-million-U.S. out-of-court settlement from a hospital and two psychiatrists she accused of brainwashing her into believing she was a satanic high priestess.
Earlier this year, an inquiry commissioned by the Royal College of Psychiatrists in England concluded that any memory recovered through hypnosis, dream interpretation or regression therapy is almost certainly false. It blames “dangerous and powerful tools for persuasion” for spawning hundreds of false accusations against parents.
The Canadian Psychiatric Association in a position paper two years ago said reports of recovered memories of sexual abuse may be true but “great caution” should be exercised before accepting them without corroboration.