Forensics/Repressed memory

Investigations of accusation of childhood sexual abuse is a difficult subject. The process is filled with potential pitfalls that investigators must be aware of (38 J. Psychiatry & L. 325 (2010) Common Errors in the Assessment of Allegations of Child Sexual Abuse; Mart, Eric G.). In this article we will cover the basic process of investigating accusations of repressed memories of sexual abuse, and cover the most common mistakes investigators make.

The Investigative Process

An investigators job is to investigate crimes. An investigators job is not to advocate for the victim. When investigators cross that line, they are no longer investigating a case and it becomes easy for damage to befall innocent people.

As the case is investigated, the investigator must approach the investigation with a hypothesis testing model (Introduction to Forensic and Criminal Psychology 3rd Edition, page 410). In the case of repressed memories of childhood sexual abuse, the following models are most prevalent:

• The person has been abused and matters transpired almost exactly as they initially disclosed as far as what acts of abuse occurred and the identity of the perpetrator.
• The person has been abused and matters and the account of the acts is accurate, but the allegation is misdirected, usually to a "safer" party. e.g. a teacher, step parent, or family friend is accused when the father committed the act.
• Certain elements of the persons accounts are accurate but others are not (inaccuracies in locations, number of times, mistakes of omission or commission).
• The persons account is inaccurate due to coaching, leading interviews, inadvertent disclosures of investigator theory or information.
• The child is consciously lying about abuse.

While these are not the only possible models, they are generally where investigators should start. As part of the process, the investigator should tailor their approach to test each of these models.

Record all interviews

Recording all interviews should be standard practice in cases of repressed memories. Recording interviews with the complainant, potential witnesses and the accused protect all parties. Failure to record the complaining witness early leaves the investigator without a great many resources that will be useful later in the case. Failure to record also leaves an investigator open to questions of why it wasn’t recorded at trial, especially if recordings are made or if the investigator asks to make them of the accused.

If it is not possible to record the interviews, investigators are advised to keep copious notes on the interview. These notes will give you a lot of resources later in the case.

When recording interviews, investigators are advised to get both the interviewer and the interviewee equally in the frame when filming the complainant, potential witnesses and the accused. Investigators are strongly cautioned not to use different techniques to film the accused, as this can be grounds for a recording to be suppressed.

Initial interview

The initial interview should consist of the investigator encouraging the complainant to tell their story as completely as possible. The investigator should be cautious to ask open ended questions that develop testable facts, without disclosing any specific information or theory of the case to the complainant. Investigators are cautioned that it is easy to taint a case at this stage, and the investigator must be very cautious of this.

Investigators are strongly cautioned that how strongly or weakly an accusers believes in an accusation based on a recovered memory is not an indication of the veracity of the accusation. Indeed, research has shown that the more strongly a person believes in a recovered memory of childhood sexual abuse, the less likely it is to prove true. When this warning sign is present, investigators must pay close attention to the other warning signs.

While not universally accepted, the following table outlines some factors investigators should consider:

Behavior	Pro	Con	Notes
Who was the initial report made to?	Authority figure	Peer, therapist	Most substantiated reports are initially made to an authority figure. Depending on the age of the accuser, this is most commonly a parent (under 18) or the police (over 18). Statistically, when the initial report is made to a peer or therapist the case is much more likely to prove untrue. Investigators should be very cautious of any such cases.
Has the story changed?	The story has remained consistent	The story has changed	Most substantiated reports remain consistent from the first telling to the last. Stories where the facts change from one telling to the next are more likely not to be substantiated.
Was the memory recovered in therapy, including a group setting?	No	Yes	Psycho-therapy, therapeutic groups, survivors groups and other "self-help" groups appears to play an important role in the origination of many, though not all, false reports (Gudjonsson, 1997; Van Koppen and Merckelbach, 1999).
Did the accuser use any self-help books in the process of recovering the memory?	No	Yes	Memories recovered using self-help books are far less likely to prove true than those that appear spontaneously.
Is there evidence of outside influence?	No	Yes	Q: How do you know it was your uncle? A: My mother told me. When evidence of outside influence is present, the accusation is much less likely to prove true than those where this is not present.
Why is the accuser coming forward now?	Just discovered the memory	Other reason	Cases where the accuser is coming forward because of pressure from family / peers that they have told the story to are often proven untrue. Cases where the accuser is coming forward to “protect” third parties, especially third parties they have no direct connection to, are often proven untrue.

Untrained Interviewers

The investigator should be aware that untrained interviewers such as parents, teachers, clergy, other community members and even untrained police officers can taint a complainant's testimony, and the interviewer should be on the lookout for signs of such contamination. Statements where the complainant tells the investigator that they obtained information and details about the case from others are especially concerning.

Investigating the case

When it comes to repressed memories, the risk of confabulation is very serious (SCHACTER, D. L., CHIAO, J. Y. and MITCHELL, J. P. (2003), The Seven Sins of Memory. Annals of the New York Academy of Sciences, 1001: 226–239. doi: 10.1196/annals.1279.012). Corroboration of facts and events is important to obtain for both the accuser and the accused. Investigators are encouraged to use the NICHD Protocol for Investigative Interviews of Alleged Sex-abuse Victims.

Calling in experts

Cases of repressed memories of childhood sexual abuse (CSA) are extremely difficult to investigate properly. In many jurisdictions, special units have been set up specifically to investigate these cases. These units are typically made up of experienced investigators, clinical researchers, memory experts and others with specialized skills in this area. If such a unit is available to assist, that unit should be called in after the complainant has made the initial complaint, and before any investigator interviews the accuser. If such a unit is not available, the investigator should call in an expert for assistance at the earliest possible stage, generally before they interview the accuser.

Initial Questions

Has the accuser discussed the abuse with someone else before bringing the charge, and if so, with whom? What was the content and course of these conversations? These questions not only serve to create opportunities to obtain corroboration from other people, but also to establish whether and to what extent the accuser may have been influenced by therapy or something similar.

If the latter were the case, confirmation will need to be sought for this. To this end the names of those other people need to be asked for at this stage.

The accuser should be prompted to tell the interviewer anything that he or she might have been told by any third party in connection with this. Corroboration of the abuse itself is most important to obtain, as well as if anyone else may have supplied the accuser with any details of the case. Sources of corroboration often include others who were abused the same way.

The next question must be why she has waited so long to report the abuse? The answer will need to be as specific as possible. If it was out of fear, of whom was she afraid and why? Also the places, dates and names of the perpetrator(s) need to be asked, to provide the basis for further investigation at a later stage. The answers will also allow the investigators to predict whether the accuser's recollections are clear enough to proceed with the case. Next it must be established whether the accuser will give permission to question therapists and other support workers at a later stage. In the absence of such permission, it may not be worthwhile pursuing the matter further for lack of sufficient corroboration. Permission is also necessary if the therapists are not to be in breach of confidence. After the initial interviews, it is important for the investigator to try and confirm or disprove as many initial facts of the case as possible based on the initial interview. While this will usually involve interviewing additional witnesses, the investigator should gather as much hard evidence as is possible at this stage.

Once you have proven or disproven as many facts as possible, you must assess which of the theories is supportable at this stage. Extreme caution must be taken in choosing to proceed, especially if the accused works with children. Studies of sexual abuse on children show that the most likely person to sexually abuse a child is an older male family member, followed by an older male family friend. Educators and others who work with children are statistically the least likely to sexually abuse a child. This does not mean that it is always an older family member or never a teacher, but the investigator must take this into account when evaluating a claim of repressed memories.

The investigator must be cautious when it comes to evaluating past abuse of the accused. It has become common practice to try and use the accused's history as a sexual abuse victim as corroboration of the abuse. Contrary to the popular assertion that victims of child abuse are more likely to go on to be sexual abusers, most studies show very little support of this ( Glasser, M. (2001). "Cycle of child sexual abuse: Links between being a victim and becoming a perpetrator". The British Journal of Psychiatry 179 (6): 482. 10.1192/bjp.179.6.482).

Be aware that multiple theories may be equally supportable at this stage.

Investigating quotations

A common piece of evidence that you will get in cases of repressed memories is what the accuser remembers the accused saying to them. Properly investigating these statements often means the difference between falsely accusing an innocent person and bringing a guilty person to justice.

Investigators should put any direct quotes an accusers gives of what the accused said through standard internet and book search engines. If the quote (or a close approximation of it) appears in any abuse literature, especially any of the self-help or "my story of abuse" books or websites, the accuser should be asked about the book or website in general. If the accuser is aware of the text, and especially if they admit to having read it, investigators should proceed with extreme caution, as the risk of confabulation is extremely high.

Investigators should be aware that in general, language and reasoning patterns do not change significantly from the age of 17. Any key phrase or reasoning used by an accused on an actual victim will remain within the accused's lexicon throughout their life. The presence of this phrase or reasoning in the accused's modern lexicon is a strong corroboration of the accusers statement. An absence of this phrase or reasoning in the accused's modern lexicon is a strong warning sign of confabulation. An absence of this phrase or reasoning in the accused's modern lexicon combined with the presence of the phrase or reasoning in the abuse literature is a very powerful indication of confabulation or imagination inflation.

The choice to proceed with the investigation

Surveys of the police show that criminal charges of sexual abuse based on recovered memories cause a great deal of suffering to the alleged victims themselves, the accused and people in their environment (Van Koppen, 1997). A charge of sexual abuse damages the accused even if they are found innocent (Loftus, 1997b). At the same time, a case that leads nowhere traumatizes even an actual victim. Taking a week case to court may give the accuser their “day in court” and a chance to tell their story, however investigators must be aware that a prolonged trial with an adverse verdict can be detrimental to the mental health of the accuser.

While there is a strong desire within the culture of investigation to give an accuser their "day in court", investigators must remember that the purpose of a criminal investigation is to find the truth. Cases that are highly unlikely to lead to a conviction from the outset should be closed and dismissed as soon as possible. These kind of cases only burden the system and cause needless suffering by all involved (Van Koppen & Crombag, 1999).

Major danger signs that a case will be highly unlikely to lead to a conviction include (Van Koppen & Crombag, 1999):

• If the accuser only expresses herself in general, non-specific terms, without being able to name places, circumstances, persons and the precise acts that took place. These cases lack avenues for corroboration and further investigation.
• If the accuser refuses to co-operate in allowing the investigating officer to contact psychotherapists or counsellors who helped the accuser to come to terms with her memories or even to recover those memories. These cases lack avenues for corroboration and further investigation.
• If the accuser reports instances of sexual abuse that took place in a very early age. Such allegations are at variance with the infantile amnesia phenomenon, which suggests that memories from before, on average, three years of age are highly improbable (see Eacott and Crawley, 1998; Eacott and Crawley, 1999; Usher and Neisser, 1993).

Additional signs that a case may not be supportable include (Van Koppen & Crombag, 1999):

• If the accuser reports that a woman actively participated in the sexual abuse of her own children.
• If the accuser claims to have had amnesia about the abuse and only recently became conscious of the repressed memories.
• If the accusation involves a series of events over a long period of time, in many different places and under different circumstances.
• If the accuser says that the perpetrator always resorted to violence or even sadism, and never used manipulative or persuasive techniques toward the victim.
• If the accuser claims to be particularly certain because it explains her long history of psychological problems.
• If the accuser during successive interviews keeps changing her account of what precisely happened.
• If the accusations become more serious over the time of repeating them, i.e. more violent, more bizarre, and/or involve an ever larger number of perpetrators.
• If the accusation was made during or about the time of a contentious divorce.

Cases exhibiting the above warning signs will be difficult to prove, and carry a high risk of causing the accuser more harm than good.

If your evidence supports going forward, the next step is to interview the accused.

Interviewing the accused

When interviewing the accused, investigators are advised to video the interview if at all possible.

The interviewer should begin by stating what they are accused of in general terms, and ask as many open ended questions as possible to generate as many verifiable facts as possible.

The second part of the interview should focus on comparing the accuser and accused's story.

Investigators are strongly cautioned not to lie to an accused at this stage of investigation unless absolutely necessary. Being caught in a trivial lie during this stage of the investigation will very likely shut down all cooperation from the accused, making investigation much more difficult.

Investigators are strongly cautioned not assume guilt if an accused person refuses an interview or asserts their right to have a lawyer present. These are serious charges, and anyone with criminal justice or other legal training will recognize that.

Follow-up Interviews

It is likely that an investigator will need to conduct follow-up interviews to generate additional information. In the case of a repressed memory, investigators need to be extremely cautious of any interview technique that may introduce additional information to the accuser. Specifically, investigators should avoid the following:

Taking the accuser to the site of the alleged abuse without using controls for false positives. Introducing any evidence to the accuser that may taint their interview Conducting any interview without recording it.

From investigation to Prosecution

At some point during the investigation, the decision will have to be made to bring it to prosecution or drop the investigation. This is never an easy choice to make, but it is a choice that needs to be made carefully. In the process of the investigation you will have had the chance to corroborate or invalidate different parts of the accusation, and test the various models. Does the story hold up? What model are you working with?

Scientific Tests for Judging

The APA laid out a 5 prong test (Haber, Lyn, and Ralph Norman Haber. "Criteria for judging the admissibility of eyewitness testimony of long past events." Psychology, Public Policy, and Law 4.4 (1998): 1135. APA) for determining the admissibility of recovered memories through direct testimony.

Criterion 1: Untainted Memory

Is the memory independent? Was some of a memories content was acquired from post-event information or suggested to the witness; was the witness influenced or pressured by other witnesses or non-witnesses; or was the witness lying.

If there is explicit and positive evidence that the relevant memory is independent (untainted), testimony based on this memory should be admitted, and no other criteria need be considered. In contrast, if there is explicit evidence that the memory has been tainted in some way, testimony based on this memory should not be admitted, again regardless of any other criteria. If there is no evidence one way or the other regarding tainting, the second decision node is considered.

It should be noted that a number of researchers have argued that repressed memories should be subjected to all of the first three tests before being admitted.

Criterion 2: Scientific Justification for Why the Memory was Unreported, and then Eventually Reported.

Is the eyewitness’s behavior is consistent with our scientific knowledge of why someone might fail to report and then come forward to report an important event. This node is critical to evaluate testimony based on recovered memory or for testimony based on memory that for some reason was not reported over a long period of time. Any considerable delay in reporting events raises the suspicion that the now reported memory may not be independent. This suspicion is removed by accounting scientifically for why the memory was lost or its report suppressed, and then why the subsequent memory was recovered or reported. If a satisfactory scientific explanation can be offered that is consistent with the facts, then the testimony based on this memory should be admitted into evidence. If the loss and recovery are inconsistent with what is known scientifically about how memory functions, then the testimony should not be admitted into evidence.

The same argument applies to both recovered and to delayed testimony of long ago memory, even if the witness had access to the memory continuously. Is the delay in reporting it scientifically justified? If there is no scientifically reasonable explanation one way or the other (or there was no delay in reporting the events that had been observed), then the next decision node is applied.

Criterion 3: Corroborative Content Analysis of the Memory Statements

The third node considers the memory itself: is the structure, syntax and semantic content of the memory statement consistent with validated scientific evidence of the content of an independent memory. If so, then the testimony should be admitted; if not, then the testimony should not be admitted. If a content analysis fails to provide evidence one way or the other regarding consistency with validated evidence of an independent memory, then the next decision node is applied. In the Discussion section below we consider the issues of the validation of this criterion.

Criterion 4: Additional Independent Eyewitnesses to the Event

The fourth node considers the weight to give to testimony from another witness(es) to the same event. If there is a second eyewitness, and that witness can provide independent corroborative testimony in addition to that of the first, then the testimony of the first witness should be admitted. If there were no other witnesses, or none of them were independent of the first witness, then the next decision node should be evaluated. The determination of independence of multiple witnesses is briefly discussed in Haber & Haber (1998).

Criterion 5: Corroborative Forensic Evidence

The final node considers whether any forensic evidence supports the testimony of the eyewitness. If there is corroborative forensic evidence, then the eyewitness testimony is admitted. In the absence of such evidence, the testimony should be admitted with cautionary instructions to the jury.

Does the identification hold up?

In recovered memory cases, we have to assess the complainants’ identification of the accused. Most accusations of CSA in repressed memory cases are made against a close relative and do not involve third party identification. If third party identification is a part of this case and you cannot separate the third party identification from the complainants’ identification, the case may not be winnable.

Does the location information hold up?

In most cases of repressed memories of CSA, the location of the abuse will be the family home. Investigators should still check the alleged timing against the known residences of the accused – this information can be obtained from DMV records. More often than not, incorrect location information correlated to cases of confabulation.

Does the timing hold up?

Repressed memories of CSA often span years or even decades. This makes it very often a difficult for an investigator to assess if the timing of an accusation is true or not. Investigators should chart every event on a timeline as accurately as possible based on the accusers story. As the investigation proceeds, evidence will be acquired to prove or disprove the timing. Investigators should be aware that the further in the past the accusations are, the more likely some parts of the timeline will be wrong, especially minor details. Where major discrepancies are found, or where a large number of discrepancies are found, this may signal confabulation.

Do the provable facts of the story of what happened hold up?

In the course of the investigation, you will have developed numerous testable facts. Some of these facts will be untestable, while others can be tested. Memory is fallible, and in almost every case you will have some facts that prove untrue. If, on the other hand, a significant number of the testable facts prove untrue, it puts the remainder of the story in question. The more testable facts that prove untrue, the more likely the story has been confabulated.

What is your testing model?

By this point you should have identified a working hypothesis testing model. What model is it?

Does the overall story make sense?

The investigator will need to assess the identification, location information, timing, provable facts and hypothesis testing model to determine if a story makes sense. If the story makes sense, the case should be sent on for prosecution. If the story does not make sense, the case should be dropped.

Special Issues

Investigations of repressed memories of childhood sexual abuse will run into a number of special issues. The following outlines a few of the more common special issues, and

Confabulation

In cases of repressed memories of childhood sexual abuse, there is a serious risk of confabulation where the accuser combines parts of one memory with fiction or parts of another memory. While actual abuse is likely in these cases, it is often impossible to know what part of what memory belongs where.

For example, child “A” was abused by her uncle on a trip to the arcade. Months or years later, child “A” was taken to a different arcade by the step-father. 15 years later child “A” accurately remembers the car ride with her step-father, and confabulates that with the memory of the uncles abuse. The result is an accusation where the step-father took the child to an arcade, raped them in the parking lot, went to the arcade and went home.

Confabulated memories will have a great many provable facts. Very often, confabulated memories will take a “safe” memory and insert the abuse into that. In these cases, the entire story will be correct, only the abuse was inserted from another memory. This most commonly occurs when it is not safe for the accuser to remember the abuse the way it actually happened at the time the memory formed. Very often the only outward sign that the memory is confabulated in this way will be the criminal history of the actual abuser.

A more troubling aspect of confabulated memories is that a person who has never suffered abuse can have memories of it. In these cases the confabulation usually comes from stories they hear (such as in a survivors group) and fiction, such as books and internet websites. This phenomenon is known as "Memory Inflation".

If therapy was involved

If therapy was involved in the allegation process, the investigator must ascertain whether any of the following techniques were used by the therapist:

• hypnosis
• guided visualization
• journaling
• dream interpretation
• body-memory work
• biblio-therapy (reading popular books on trauma and memory retrieval)
• techniques to remove doubts.

All of these memory enhancement techniques are known to cause confabulation. If any of these techniques were used, the investigator must try to determine what the accuser told the therapist about abuse before any of these therapeutic techniques were used.

Did the therapist report the abuse allegation?

When assessing the credibility of an allegation or repressed memories of childhood sexual abuse, therapy records can be very useful in helping to corroborate, or disproving an allegation.

If the records show the alleging party told his or her therapist about the abuse, this can show that a story has remained constant from one telling to the next. A story that is unchanged from the first telling to the last is much more likely to prove to be true. If the story has significant changes (e.g. changes to person, place, time or events) the story is much less likely to prove true.

One major factor investigators need to look at in cases of repressed memories is mandated reporting. If a report was made while the alleging witness was a minor (under 18 in most jurisdictions), and the therapist is a mandated reporter (they are in most locations), investigators must ask if the therapist reported the incident to the authorities. If the incident was not reported, this should be taken as a major credibility problem for the accusers story. A therapist that does not report a minors allegation is a powerful indication that the therapist did not believe the accusation to be true when it was reported to them. In such cases, investigators need to exercise extreme caution in proceeding with the investigation, especially if a number of years have passed since that first report to a therapist.

Self-Help Groups

Investigators should ascertain any involvement or participation a complainant has had with any kind of 'survivors' or 'recovery' groups. If a complainant has taken part in any of these kinds of groups, investigators must take extreme caution. Participation in these groups can lead to confabulations, including memory inflation (Psychology of Consciousness: Theory, Research, and Practice, Vol 1(1), Mar 2014, 20-31.)

Third Party Identification

One of the most troublesome issues with investigations of repressed memories of CSA is that of third party identifications. Investigators need to be extremely cautious in any case where a third party (such as a parent) has provided the accuser with the identity of the accused. Third party identifications are extremely prone to issues of confabulation, and may make the testimony inadmissible in court (see State v. Chen, 27 A.3d 930 (N.J. 2011)). Where evidence of third party identification exists, investigators must take steps to determine the circumstances of such identification. If the third party identification is the only identification, and the complainant has no independent knowledge of the accused’s identity, the investigator should tread with extreme caution. Third party identifications of this nature often prove to be confabulations.

Self Help Books on CSA

A number of self-help books are on the market intended to help people recover memories of childhood sexual abuse. The use of these books is, to put it mildly, highly controversial at best. When an investigator finds that one or more of these books were used or played any part of an accusation, the investigator should take extreme caution to avoid being caught up in confabulations.