Studies of Repressed Memory and the Issue of Legal Validity

Author(s): Stephen L. Wasby and David C. Brody

Source: Law and Human Behavior, Vol. 21, No. 6 (Dec., 1997), pp. 687-691
Published by: Springer
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Law and Human Behavior, Vol. 21, No. 6, 1997

Comment

Studies of Repressed Memory and the Issue of Legal

Validity

Stephen L. Wasby1 and David C. Brody2

In the 1990s the prosecution of individuals charged with sexual abuse based on the
uncovering of a victim's repressed memory has become increasingly common. Those
prosecutions have been facilitated by changes made by nearly every state in their
civil and criminal statutes of limitations for incidents involving sexual abuse of chil-
dren. Many of these changes, even if not made in response to social scientific stud-
ies, without doubt stemmed from the belief that victims are likely to repress
memories of childhood sexual abuse for extended periods of time.
The studies conducted by Key, Warren, and Ross (1996) and Golding, Sego,
Sanchez, and Hasemann (1995) are the most recent contributions to the law and
psychology literature on the topic. As they were published in the premier law and
psychology journal, they will receive considerable attention, making it likely that
attempts will be made to replicate them. Thus it is important that we discuss a
major problem with the studies, so that those interested in replication can avoid
the same error.
What draws our concern is the lack of legal verisimilitude or legal validity of
the studies; by legal validity, we mean that the elements of the study should properly
match real-world legal rules and processes. If those rules and processes are not
properly reconstructed in a study, that study, although it may tell us about social-
psychological processes, will be of limited utility for understanding and influencing
the real-world functioning of the legal system (Bray & Kerr, 1982).
Our concern with the current studies is with the use of stimuli involving a child
sexual abuse prosecution or civil action based on the nonrepressed memory of the
victim which is not reported to law enforcement authorities until 20 years after the

IDepartment of Political Science, University at Albany-SUNY, 135 Western Avenue, Albany, NY 12222
(e-mail: wasb@cnsibm.albany.edu). Bissell-Fulbright Chair in Canadian-American Relations, University
of Toronto, 1997-1998.
2Criminal Justice Program, Department of Political Science, Washington State University, Pullman,
Washington.

687

0147-7307/97/1200-0687$12.50/1 ? 1997 American Psychology-Law Society/Division 41 of the American Psychological Association

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688 Comment

alleged abuse took place. This type of scenario, as presented in these two studies,
seems, at least to us, not to be based on the legal reality in many jurisdictions.
Both studies have two adult claimants who reported that 20 years previously
they were sexually abused as children. In one scenario, the individual (whom we
call Claimant A) had no memory of the abuse until the memory was recovered
after 20 years. The law does recognize instances where memory of abuse has been
repressed and then, much later, recovered with the aid of trained therapists in what
is called repressed or recovered memory. That legal recognition has led to the ex-
tension of statutes of limitations, which in turn makes the scenario involving Claim-
ant A legitimate-and legally valid.
In the second scenario, a person (Claimant B) who was sexually abused always
remembered the abuse, but did not discuss it until recently while in therapy. We
do not question the psychological validity of the process involving Claimant B. The
problem is that in many jurisdictions, because of statutes of limitations, such a per-
son would not be able to bring a claim of sexual abuse into court after continuously
remembering it for that length of time, whether one is talking about a criminal
trial or a civil trial for damages, and thus the scenario is not legally sound in all
but a distinct minority of jurisdictions.
Both studies acknowledge statutes of limitation only briefly. Key et al. (1996,
p. 555) indicate that some states have altered the limitations rules, "allowing charges
to be filed against a perpetrator many years after a crime has occurred." But there
is more to this picture. In recent years, nearly every state has enacted extensions
of the statutes of limitations for sexual abuse crimes (Hayes, 1994). Like similar
extensions for physical injury from certain toxic torts, statutes of limitations have
been applied to the "repressed memory" condition so as to toll the running of the
statute until the abuse is discovered by the victim. These changes would assist
Claimant A, who in fact had a repressed memory. "Most courts, however, have not
tolled the statute of limitations when a person remembered the abuse all along"
(Bulkley & Horowitz, 1994, p. 71). Accordingly, in most jurisdictions, these changes
would not help Claimant B, who has consciously remembered the abuse for the
entire period of time.3
Would the scenarios involving Claimant B be valid in any jurisdictions? Yes,
in some. Our examination of criminal statutes of limitations indicates that South
Carolina and Wyoming do not have criminal statutes of limitations, and several
other states-none among the most populous-have no statutes of limitations for
felonies.4 Additionally, Alabama, Rhode Island, and Tennessee have abolished
statutory limitations on when charges alleging certain sexual offenses committed
upon children may be filed. Elsewhere, however, a criminal prosecution based on
the report of Claimant B would be barred by the statute of limitations. Moreover,
even in the few states where a prosecution such as those presented in the studies
by Key et al. (1996) and Golding et al. (1995) would not violate the statute of
limitations, such a prosecution might be barred as violating a defendant's due proc-

3For an excellent, detailed summary of changes to civil and criminal statues of limitations in cases
involving sexual abuse of children, see Bulkley and Horowitz (1994).
4Kentucky, Maryland, North Carolina, Rhode Island, South Carolina, Virginia, West Virginia.

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Comment 689

ess rights under the U.S. Constitution-see United States v. Marion (1971)-or a
state constitution, as in State v. Gray (1996), where the Tennessee Supreme Court
held that a prosecution brought 42 years after the alleged criminal act due to the
victim's alleged repressed memory of the incident violated the defendant's right to
due process.
If Claimant B were in a jurisdiction where a criminal prosecution is legally
precluded, he or she might still bring a civil action against his or her assailant.
Such an action was used by Golding et al. (1995). It is, however, critical to keep
in mind that the same question of whether the legal action could be brought also
arises with Claimant B's civil suit.
For a tort committed against a child, all states toll the statute of limitations
until the child reaches the age of majority (Bulkley & Horowitz, 1994). If we assume
that the age of majority is 18 years and use the 20-year period of both studies, we
would have the following situation, using the ages of victims in the Key et al. study:
a 3-year-old abuse victim would be 23 years old on taking legal action, or 5 years
past the victim's 18th birthday; an 8-year-old victim would be 28 years old; and a
13-year-old victim would be 33 years old.5 Only if a state had a civil statute of
limitations of longer than 5 years could Claimant B, if victimized at age 3, bring a
case; thus it would be a "close thing" as to whether he or she could reach the
courthouse in time if he or she decided, upon discussing the abuse in therapy, to
take legal action. If Claimant B had been victimized at ages 6, 8, or 13, being aware
for 20 years without acting upon the knowledge would leave him or her "out of
court" in a civil case as well as prevent them from being a criminal complainant.
Thus for most situations we can imagine, the scenario involving Claimant B is not
legally valid.
Moreover, less than a majority of states have extended statutes of limitations
to run from discovery of the abuse-in the repressed memory situation, from the
time the memory is recovered in therapy.6 It is possible that Key et al. (1996) had
in mind that the victim was conscious that the acts had been committed, but did
not know they were abuse until after talking to a therapist. That fact would be
relevant for statute-of-limitations purposes, particularly in civil actions, if the court
would accept that "discovery" is not triggered by the victim's mere awareness that
certain acts occurred, but rather by his or her realization that the acts were instances
of abuse. At a minimum, however, where clarity instead of ambiguity is necessary,
Key et al.'s "consciously remembered the abuse" is not the same as "remembered
it as abuse."
We also wish to note briefly the relation between the Key et al. (1996) and Golding
et al. (1995) studies and the earlier study of mock jurors' reactions to repressed vs.
nonrepressed memory evidence conducted by Loftus, Weingardt, and Hoffman (1993),
from which Key et al. (1996) derived their materials, and about which Golding et al.

5Golding et al. (1995) also have a 6-year-old child who reported the sexual abuse the same year as it
occurred. The fact that this claimant was 6 years old at the time of the abuse and thus of a different
age from the claimants in Key et al. (1996) is not relevant to this communication.
61n most of those states, the statute is 3 years from "discovery" of the abuse, although two states-New
Mexico and Virginia-allow 10 years and Connecticut allows an action to be brought within 17 years
of reaching the age of majority.

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690 Comment

(1995, p. 571) correctly state that it provides "an excellent starting point from which
to investigate the believability of repressed memories in a legal context." It is important
that the materials used by Key et al. differ from the Loftus et al. materials in numerous
relevant and important respects, including the age of the victim, the type of offense,
and the length of delay in reporting the offense, with the result that while the latter
study has no problems of legal validity, such problems do occur in the former one.
Thus the refinement by Key et al., while potentially useful for psychological theory, is
made at the serious cost of significantly reducing legal validity.
Students of law and psychology have sought to move psychological research
involving law toward legal validity, so that the studies will contribute to the knowl-
edge both of the workings of the law and of psychological processes. Concern about
the need for legal validity has been expressed frequently, for example, with respect
to statements made about "jurors" who have not deliberated as a jury (Weiten &
Diamond, 1979). Much progress has been made. But care must still be taken to
attain legal verisimilitude in our studies, particularly if we are attempting to un-
derstand the workings of the contemporary legal system-and to explain why any
elements of our studies diverge from legal reality.
One can, without doubt, refine psychological theories through studies discuss-
ing law even with the use of scenarios-such as the nonrepression condition-that
are not legally valid. Such manipulation might assist in interpreting study results.
Yet it is important for the researcher to recognize, and stipulate, that conditions
being used are "not necessarily legally accurate." And such studies would be im-
portant if one wanted to learn of potential effects of proposed reform-when a
legal rule one might wish to adopt was not in place in any jurisdictions or only in
a few. However, that requires explicit recognition of existing legal rules and the
extent to which study scenarios follow or diverge from those rules.
The lesson we would have authors, reviewers, and editors take away from this
discussion of limited legal validity is that any condition in a study intended to assist in
understanding law and psychology should make sense in light of legal conditions and
the psychological questions being addressed. In short, a scholar who wishes to use any
element that the law does not use should know that he or she is doing so and why,
and should explain to the audience why it nevertheless makes sense to do so.

ACKNOWLEDGMENTS

The authors wish to acknowledge the helpful comments of Ronal

Wendy Molyneux, and several anonymous reviewers.

REFERENCES

Bray, R. M., & Kerr, N. L. (1982). Methodological considerations in the study of the psy
courtroom. In N. L. Kerr & R. M. Bray (Eds.), The psychology of the courtroom
New York: Academic Press.
Bulkley, J. A., & Horowitz, M. J. (1994). Adults sexually abused as children: Legal actions and issues.
Behavioral Sciences and the Law, 12, 65-88.

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Comment 691

Golding, J. M
memories. Law
Hayes, M. (199
abuse based up
Key, H. G., W
Law and Huma
Loftus, E. F.,
memories that
State v. Gray,
United States
Weiten, W, &
defendant cha

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