The 18th Century jurist, Sir William Blackstone,
wrote that "it is better that ten guilty persons escape
than one innocent suffer." This principle served for
centuries as one of the cornerstones of English Common Law.
The rights of an innocent man were held in high regard and
society was assured that innocent people need not fear wrongful
conviction or imprisonment. The standard was one of "beyond
a reasonable doubt."
But times have changed. It is now believed that in some cases
it is better that many possibly innocent men suffer than one
guilty one escape.
In these cases, there is no dead body, no smoking gun, no
semen or DNA sample. There is only the testimony of an alleged
victim, describing a supposedly uncovered memory.
Most people today have heard of these recovered memory cases
of daughters accusing fathers, students accusing teachers,
and parishioners accusing priests. Almost always they involve
reports of sexual abuse or assault (although in one notorious,
recently overturned conviction, a daughter accused her father
of killing her playmate some twenty years earlier.) And almost
always these "memories" have been uncovered in psychotherapy.
Recently people have become aware of the controversy that
surrounds this issue. On one side are the protagonists - psychologists
and psychotherapists, most often female, who espouse the theory
that most, if not all, psychological problems are the manifestation
of earlier trauma and abuse. They argue in unison that memories
can be repressed, that these memories are factual, that people
would never make up such horendous stories, and that to question
their authenticity is to "re-victimize the victims."
For a while, Ellen Bass and Laura Davis, coauthors of "The
Courage to Heal," and loud voices in this debate,
even contended that if a woman thinks she has been abused
she probably was - no further questions to be asked.
On the other side, the antagonists, including prominent research
psychologists such as Elisabeth Loftus, hold that memory involves
restructuring the event in the mind and is susceptible to
suggestive influences. They raise questions about the truth
of recovered memories and focus on the role therapists may
be playing in creating them.
But what goes virtually unnoticed is the silence of the professional
associations and the regulatory boards which oversee these
therapists. Where are the voices of the national associations
and the licensing boards?
It is their role to "protect the public," not just
from unprofessional practitioners but also from unprofessional
practice, including that which enters courtrooms. Where are
Take, for example, the American Psychological Association.
In 1993, it established a working group to address the issue
of memories of childhood abuse. Three years later, a report
was submitted which acknowledged a split between the clinicians
who believed in recovered memories, and the researchers who
It conceded that it was "important to acknowledge frankly
that we differ markedly on a wide range of issues." So
one professional psychology organization, the largest and
most influential in the world, could find no agreement and
chose to waffle.
Canadas national organization, the Canadian Psychological
Association, is no better, referring to its guidelines addressing
recovered memories, as "aspirational in intent."
And as for the licensing boards, they express no opinion
and take no action to curb dubious treatments, qualify questionable
claims or warn the consumers and the courts.
So where does that leave us? In a bog! A land in which there
is much fighting but where there is little accepted science
and little agreed fact. The APA Working Group bemoaned the
"increasing Balkanization of psychology,"
the existence of many psychologies and little understanding.
Given the confusion , why do prosecutors proceed with such
cases, and why courts allow recovered memories to be introduced
as evidence. The answer to the first question is, I suspect,
that prosecutors, who naturally are concerned about their
own careers, are reluctant to take a stand or turn down cases
at a time when violent crime is on a downturn.
As for the courts, they have not been given the full picture
of the controversy nor instructed about the lack of a firm
foundation for the widely expressed beliefs about repressed
memories. There is an established principle in law, the Frye
Rule, which holds that scientific evidence, including psychological
evidence, is admissible only if it is sufficiently established
to have general acceptance in its field.
A 1993 U.S. ruling is even stronger, holding that the scientific
validity of the principles and methodology is essential before
the court can accept them. By either standard, recovered memory
theory would not be acceptable.
But convictions still happen and people languish yet in Canadian
prisons. The professional associations that remain silent
should hang their collective heads in shame.
And a Justice System that chooses to turn a blind eye leaves
Canadian society realistically fearful that innocent people
can be wrongfully convicted and imprisoned.
Let us hope that Justice Minister Anne McLellan will open
her eyes to the illusions of knowledge and expertise within
psychology, and her ears to the wise words of Justice Blackstone.