Abstract

Part I of this article traces the history of the recovered memory movement in the criminal prosecution of sexual assault, discussing some prominent cases and their consequences for wrongly convicted defendants. Part II asks why the criminal law was so vulnerable to claims of sexual assault, and other violent crimes, that were often wildly improbable on their face. The article concludes that the structure of recovered memory theory had the effect of disabling checks in the criminal process which are designed to prevent unjust convictions. Part III applies that conclusion to the theory of Trauma-informed Investigation (TII) and the "Neurobiology of Trauma". Although the law itself "recovered" from the recovered memory craze, it remains susceptible to manipulation by theories, such as TII, which unite these three claims: (1) that memory of trauma is importantly different from ordinary memory; (2) that the experience of trauma chases memory from consciousness, but (3) that memory for traumatic events can be accurately recovered using techniques that (intentionally or not) require the circumvention of the normal, fact-based investigation and prosecution of a criminal cases. In addition, and in striking parallel to the scientific debate over repression and recovered memories in the 1980s and 1990s, the science on these questions is far from settled. Ultimately, the article questions the need to import psychological conceptions of "trauma" and "traumatic memory" into the task of investigating and processing cases of sexual assault. The history demonstrates that cherry-picking controversial scientific findings and deploying them as the basis for criminal investigation and charges undermines the law's core mission of discovering the truth behind criminal allegations, ensuring that the guilty are convicted and punished, but also ensuring that the innocent are protected from false or wrongful allegations.

Document Type

Article

Publication Date

2021

Publication Information

45 Law & Psychology Review 87-154 (2020-2021)

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