The demand by the Criminal Lawyer’s Association and affiliated organizations for a systematic review of the cases of men alleged to have been wrongfully convicted of sexual assault on the basis of recovered memory should be denied. They argue that these men should get the “same treatment” as women whose convictions were reviewed by the Self Defence Review conducted by Judge Lynn Ratushny. They allege that recovered memories are actually “false” memories produced by the suggestive techniques of overzealous therapists who “plant or actively nurture” memories of childhood sexual abuse.
This argument is simplistic and false because it misrepresents the terms, goals, process and outcome of the Self Defence Review and transplants the idea of a systematic review in a markedly different situation.
First, women in the self-defence review did not claim not to have killed, as they did not dispute that they were perpetrators. Men here are claiming that the crime never occurred to begin with and that they are completely “innocent” . The hidden assumption is that women completely fabricated their accounts of sexual abuse as children; the courts that affirmed the actual occurrence of the abuse by the perpetrators were wrong in their findings of guilt. It is important to note that men hold coercive power over children: unlike the women in the self-defence review, these men were not being terrorized, threatened or abused.
Second, the decision by the Supreme Court of Canada in Lavallee in 1990 changed the law, requiring a non-discriminatory application of self-defence law as it relates to battered women. There has been no comparable change of law regarding the legal status of recovered memory evidence or corroboration. The so-called “False Memory Syndrome” is a concept created by a partisan organization (The False Memory Foundation) in order to defend men against charges of sexual assault: it does not have legal authority, nor is it formally recognized in professional indexes of mental abnormalities.
Third, the Self Defence Review was a systematic response to systematic problems in the criminal justice system, particularly the failure of the system to assist women and children being abused, forcing them into life-threatening situations. The discriminatory application of self-defence law also failed to reflect the realities of battered women.
In the case of men convicted of sexual assault, without denying that certain categories of men may be vulnerable to systematic discrimination, there is no similar evidence to suggest a widespread systematic problem of discrimination against men accused of sexual assault warranting a process like the Self Defence Review. In fact, all of the systemic evidence points in the opposite direction. Roberts (1997) reports that women experience systematic injustices in gaining redress for sexual assault due to low reporting rates for sexual assault, higher filtering rates of sexual assault cases before they reach criminal prosecution than other offences, an extremely low conviction rate for sexual assault, and a remarkably high rate of success on appeals.
Apart from grounding their demand in the Self Defence Review, the groups argue that such convictions are unsafe as they rest on recovered memories, not corroborated by other sources. Organizations such as the Canadian Association of Elizabeth fry Societies provided documentation of cases where women had not received the benefit of a non-discriminatory application of the law of self-defence. In stark contrast, there are no known cases where convictions rested on evidence of recovered memory alone. The Criminal Lawyer’s Association has put forth vague estimates of three to twelve dozen men who were convicted on uncorroborated “false” memories. However, they have not identified specific cases, with the exception of that involving Ms. Cole, which ignored the extent of corroboration of key facets of Mr. Cole’s abusive behaviour.
Indeed, there is almost no basis for reviewing these men’s convictions en bloc. The degree of judicial scrutiny for cases involving recovered memory appears to be much higher than other types of cases. In a study conducted by Kelly, Kristiansen, and Haslip (1998), a random sample of cases involving recovered memory indicate that Canadian courts often presume that recovered memories are false and subject the women’s testimony of memory recall to undue skepticism. In the context of sexual assault, False Memory Syndrome has already been an effective defence strategy in that it discredits adult survivors of childhood sexual abuse and exploits age-old rape myths that blame the victim: either she is lying, is seeking revenge against her abuser, has a mental disorder, is easily suggestible, all of which they see as being verified by her failure to bring the complaint earlier.
Furthermore, there are other problems with these proponents’ claims. The term “False Memory Syndrome” is applied simply on the basis of denial by the perpetrator. The analysis presumes therapist intervention although a study by Hovdestad and Kristiansen (1996) indicate that a significant proportion of recovered memories re-surface independent of therapy and are therefore unrelated to therapy. This study also revealed that most therapists do not even ask women with recovered memories about their history of abuse. Finally, recovered memory is a widespread and common occurrence in many traumatic situations outside of sexual assault, as has been well documented by many studies.
The effort to manipulate the Self Defence Review for this purpose should be rejected resoundingly. Individual men should seek their remedies through the appeal process or s. 690 of the Criminal Code if there is evidence to support a claim that there has been a miscarriage of justice. We reiterate that we support efforts to uncover and eradicate systemic bias in the criminal justice system. However, convictions resting on recovered memories of sexual assault do not warrant a broad review on this basis.
Liz Sheehy (Law Professor, University of Ottawa)
Kim Pate, (CAEFS)
Lee Lakeman (Canadian Association of Sexual Assault Centres)
Tamara Gorin (Vancouver Rape Relief and Women’s Shelter)
Cindy Gill (Ottawa Sexual Assault Centre)