As discussed above, there is much evidence that experiences of abuse can be forgotten. In a landmark prospective validation study by Williams (1994a; 1994b; 1995), for example, 38 per cent of women, for whom the abuse during childhood had been reported to police and confirmed at the time, could not recall the episode 17 years later as adults.
Memory per se and reco vered memories constitute different concepts, ho wever, and the validity of the latter has been the focus of a 20-year controversy within the criminal justice system. Before 1995, many accused persons in the United
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States were convicted of child sexual abuse on the basis of recovered memories alone. According to a number of submissions to the Inquiry, this has also happened in Queensland.
During 1995, however, the tide began to turn in the United States with some major court decisions being handed down declaring that recovered memories had no validity unless supported by independent evidence. Indeed, in the United States there have been a number of successfully prosecuted cases in which client-victims of Reco vered Memory Therapy (RMT) have sued their therapists, with financial settlements often exceeding a million dollars.6 At a meeting of
the American Psychiatric Association in 2002, a team of panellists declared the RMT controversy dead, but they said that psychiatry still needed to help the main victims of RMT: those accused of heinous crimes that never happened (Robinson 2002).
In Australia, given the controversial nature of the topic, the Australian Psychological Society (APS) developed ethical guidelines for psychologists working with clients who report memories of abuse (APS revised May 2000). The guidelines make it clear that the percentage of child sexual abuse experiences that are (a) recalled for the first time during therapy and (b) are the subject of litigation is very small compared to those that are remembered but unreported, and whose effects may or may not require treatment. Nevertheless, the
guidelines emphasise that reports of abuse long after the alleged events are difficult to prove or disprove in the majority of cases, and that child sexual abuse should not be retrospectively assumed solely on the basis of presenting symptoms. The guidelines suggest that, although clinical observations offer some support for the possibility of repressed memories, experimental research on memory is inconclusive.7 The guidelines also stress that psychologists should be
alert to the different demands of the therapeutic and legal contexts and that caution should be exercised when responding to questions from clients about legal action. Should psychologists be required to assist in obtaining evidence that is reliable in forensic terms, the guidelines stress that they should restrict themselves to procedures that increase reliability (such as the cognitive interview), and avoid techniques that are known to reduce reliability (such as hypnosis or leading questions).
In 1994, the then Queensland Director of Public Prosecutions, R.N. Miller QC, ad vised the QPS, the Bar Association, the Queensland Law Society, Crown Prosecutors, the Registrar of the Psychologists Board of Queensland, and the Chairman of the Royal Australian and New Zealand College of Psychiatrists (Queensland Branch) by letter (provided to the Inquiry by the ODPP 16.4.03) that he would not seek to tender evidence of a ‘recollection’ of a witness that emerged for the first time during or after hypnosis unless the following guidelines were satisfied:
1. The hypnotically induced evidence must be limited to matters which the witness has recalled and related prior to the hypnosis — referred to as the ‘original recollection’. In other words evidence will not be tendered by the Crown where its subject matter was recalled for the first time under hypnosis or thereafter. The effect of this restriction is that only detail recalled for the first time under hypnosis or thereafter will be advanced as evidence. 2. The substance of the original recollection must have been preserved in
written, audio or video recorded form.
3. The hypnosis must have been conducted with the following procedures: (a) the witness gave informed consent to the hypnosis;
(b) the hypnosis was performed by a person who is experienced in its use and who is independent of the police, the prosecution and the accused; (c) the witness’s original recollection and other information supplied to the
hypnotist concerning the subject matter of the hypnosis was recorded in writing in advance of the hypnosis; and
(d) the hypnosis was performed in the absence of police, the prosecution and the accused, but was video recorded.
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prosecution to the defence, and all relevant transcripts and information provided to the defence well in advance of trial in order to enable defence to have assistance of their own expert witness in relation to that material.
In 1995, Mr Miller included evidence obtained by the process called Eye Movement Desensitisation and Reprocessing (EMDR) within these guidelines. There are no data available identifying how many cases of accused or
incarcerated sexual offenders in Queensland included RMT, hypnosis or EMDR in their prosecution.