False memory syndrome: undermining the credibility of complainants in sexual offences

Within the last 10 years the concept of false memory syndrome (FMS) has entered the legal arena. It is a label increasingly used to describe and account for adults' recollection of sexual abuse committed against them during childhood. The phenomenon first appeared in the courts in 1994 in the U.S. civil case of Ramona v Isabella,1 and since then has appeared on numerous occasions in courts throughout the Anglo-American jurisdictions (including the United States, Canada, Scotland, and England, all of which feature in the present article). Vigorous debates have taken place within the academic and professional literatures across several disciplines (e.g., psychology, psychiatry, law) addressing the reliability of memory processes and their significance in legal testimony. The purpose of this article is not to rehearse the claims and counterclaims concerning the validity of repressed memories or FMS, as these have been thoroughly aired in the literature (e.g., [Ceci & Bruck, 1995, Conway, 1997, Lindsay & Read, 1995, Ofshe & Watters, 1994. R. Ofshe and E. Watters, Making monsters: False memories, psychotherapy, and sexual hysteria. , Scribner's, New York (1994).Ofshe & Watters, 1994 and Koocher, 1998]). Instead, this article explores the extent to which this phenomenon plays an increasingly important role in the legal construction of credibility, one of the determining features of a reliable witness in the courtroom. Determining that a witness is incredible is the most effective route to dismissing their testimony. Historically, there have been numerous rules of evidence and procedure that have had the effect of rendering the testimony of women and children incredible. Although attempts have been made (sometimes successfully) to dilute the impact of these rules, those that remain still adversely affect the manner in which testimony concerning sexual assault is received. This article contends that the courtroom use of FMS is the latest in that tradition. It argues that those who bring charges concerning childhood abuse (most of whom are women) are disadvantaged, not primarily because of unreliable memory processes about traumatic events, but more importantly because of the historical tendency to doubt women's credibility. This distrust continues to be reflected in the contemporary debate surrounding FMS and is even exacerbated by the rules of evidence that allow testimony on the phenomenon into the courtroom.