Admissibility of Repressed Memories

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Admissibility of Repressed Memories

In the past twenty years, there has been an explosion of both criminal and civil cases involving "repressed" or "recovered" memories, often dealing with sexual abuse. The theory goes that because of the traumatic nature of the abuse suffered as a child, adults often block out or repress all memories of it, often times causing them to be completely unaware that they have suffered such abuse. But as the psychological effects of the abuse take their toll on the personal lives of the victim, they sometimes recover the memories (often through therapy) many years or even decades after the event.  Armed with only these recovered memories, they then try to bring the abuser to court.

Why Are Repressed Memories Controversial?

Most of the time the abuse in these cases is decades old, and sometimes the only evidence of the abuse is the memory itself. Considering that even normal memories, such as eye-witness testimony, has often shown to be unreliable, critics of the repressed memory theory say that these memories, decades old, are certainly not reliable enough to throw someone in prison or ruin their career over.  In the mid 1990's, several high profile cases involving repressed memories were proven to have been fake, with the memories "implanted" by the therapists. This has caused controversy over the reliability of the doctrine ever since.

Are Repressed Memories Currently Admissible in Court?

This is a highly contentious area of law, and much will depend on the jurisdiction (state) and the judge making the ruling. Currently, 28 states have laws modifying the statute of limitations to accommodate "repressed memories," know as delayed discovery rules.  These rules pause the clock, so to speak, on molestation statutes of limitations until the victim becomes aware of his abuse.  This would seem to imply that the courts in these states are favorable towards "repressed memory" cases. However, the judge in each case has much discretion over the use of these theories. 

While these courts will not throw out a case based on the statute of limitation expiring, judges in jurisdictions that are undecided as to the validity of repressed memories may hear arguments over whether repressed memory syndrome is a medical or scientific field of expertise (there are different standards of admissibility for both), as well as to its scientific credibility (there is no shortage of both proponents or critics, so this can become a "battle of the experts").

In states where there is NO exception to the statue of limitations, such as Louisiana or Texas, this all becomes a moot point, since any recovered memory will almost certainly be past the standard 3-5 year window that most states have for abuse. 

Do I Need an Attorney?

The majority of states do provide some statutory coverage for victims who have repressed memories of abuse, so there is certainly a good chance your case can move forward in court, but it often can be a tough fight. Contacting an experienced lawyer familiar with the abuse laws in your state will be essential in fighting the difficult battle ahead. Consulting a lawyer is also a good idea before trying to prosecute an abuser criminally, as he can tell you the merits of your case and whether your states laws will allow it to go forward. 

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Last Modified: 01-04-2017 11:00 AM PST

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