Trauma and Memory in the Prosecution of Sexual Assault

47 Pages Posted: 25 Jun 2020 Last revised: 13 Jul 2020

Date Written: 2020

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.

Keywords: Sexual Trauma, Memory, Sexual Assault

Suggested Citation

Ward, Cynthia V., Trauma and Memory in the Prosecution of Sexual Assault (2020). Law & Psychology Review, Vol. 45 (2021 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3627302

Cynthia V. Ward (Contact Author)

William and Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
63
Abstract Views
246
rank
400,026
PlumX Metrics