Monday, July 6, 2020
Cynthia V. Ward (William and Mary Law School) has posted Trauma and Memory in the Prosecution of Sexual Assault (Law & Psychology Review, Vol. 45 (forthcoming 2021)) on SSRN. Here is the abstract:
Despite its controversial standing among scientists, the phenomenon of traumatic memory has enjoyed remarkable longevity in the criminal law, particularly in the investigation and prosecution of sexual assault. Yet the concept of emotional trauma, and the nature of memory, are both notoriously difficult to define in legal settings -- and recent experience gives the criminal law good reason to proceed with caution. In the late 20th century, prosecutors across the country adopted a theory of traumatic memory and its treatment which became known as Recovered Memory Therapy (RMT). RMT became the basis for scores of criminal charges, including charges of sexual assault and murder, causing wrongfully convicted defendants to serve long prison terms for atrocities which in fact had never occurred. Although RMT itself has faded from the legal stage, the claims that (1) traumatic memory is importantly different from ordinary memory, and (2) that the criminal law should (therefore) amend its processes of investigating and adjudicating sexual assault cases, have now reappeared as the “Neurobiology of Trauma.” This article examines the wrongful convictions that resulted from the law’s adoption of recovered memory theory, identifies parallel structural problems with today’s “trauma-informed” approach, and argues that the phenomenon of “traumatic memory” is scientifically controversial; is structurally vulnerable to abuse; and is not necessary to achieve the goals of justice.