In January lawyers acting for Prince Andrew suggested that Virginia Giuffre, the woman who has accused him of sexually assaulting her when she was 17, may be suffering from “false memories”. The idea that sexual assault victims may be mistaken about their memories crops up frequently in court. In many high-profile, #MeToo-era trials – of Harvey Weinstein, Ghislaine Maxwell, Bill Cosby – the defence has called on Elizabeth Loftus, a University of California psychologist and the preeminent researcher on the science of memory, to give evidence.
Memory doesn’t work like a “video recorder”, Loftus likes to point out. This much is uncontroversial. Psychologists understand that memory is not a passive act of retrieval: our memories of our past change because we do. Since the 1970s, Loftus has studied the ways in which our memories can be manipulated. One of her earliest experiments invited participants to observe a video of a car crash, and discovered that their memories of the event changed depending on how they were questioned after the scene. When researchers asked how fast the car was going when it “smashed”, participants estimated a faster speed than when the word “hit” was used. In perhaps her most well-known experiment, Loftus asked a relative to tell participants a fictional but plausible story of how they – the participant – had got lost in a shopping mall as a young child, six out of 24 of them acquired a false memory of this happening.
Could this happen with memories of sexual assault, too? Might someone falsely remember a consensual sexual act as non-consensual? Could they even, if plied with the right misinformation, falsely remember that someone had sexually assaulted them when no such contact occurred? These questions were raised during the so-called memory wars of the 1990s, which were triggered by a trend for recovered-memory therapy. In this, therapists might argue that their clients’ problems stemmed from deeply repressed memories of childhood sexual abuse. Loftus and other psychologists countered that this speculation, coming from a trusted therapist, could implant false memories.
In some cases, it might raise a “red flag” if a victim makes an allegation of childhood sexual assault only after visiting a therapist who has promised to retrieve repressed memories, Chris French, the head of the Anomalistic Psychology Research Unit at Goldsmiths University, told me. The techniques used by therapists to help clients recover forgotten early childhood traumas are similar to other processes he studies, by which people recover supposed memories of alien abduction or of past lives, he said.
Though French is occasionally called upon to produce expert reports for the courts, he said he would be “concerned” if memory experts were “automatically” asked to testify in sexual assault cases – which, in the absence of decisive evidence or other witnesses, often hinge on weighing up two different accounts of an event that took place behind closed doors.
The recent #MeToo-era cases in which the false memory defence has come up do not revolve around early childhood memories or controversial therapy techniques. Instead, the new memory wars centre on different questions: do the experiments conducted by scientists such as Loftus tell us anything about how people remember traumatic personal events? If a victim has been drinking, or has taken drugs, is their memory of alleged sexual assault less reliable?
For obvious ethical reasons, researchers cannot model such scenarios in a lab. Heather Flowe, a professor of forensic psychology at the University of Birmingham, told me there is no evidence to suggest that women might develop false memories of rape. In fact, she noted that because of the lack of research into memories of sexual assault, Loftus was not permitted to testify on this particular kind of incident during the Weinstein trial (instead, she could only speak on memory distortion more generally).
Experts have nonetheless speculated about how a woman might acquire a false memory of rape – perhaps through “self-induced imagination” following media reports. “But where’s the evidence for that? There’s no evidence for people duping themselves in that way,” Flowe said. The idea that they might do so seems “extraordinary”.
Nor, contrary to Loftus’s assertions, is there evidence that alcohol or drugs might produce false memories, Flowe argued. Flowe co-authored a meta-analysis study into how alcohol affects recall, and it demonstrated that drinking might reduce the number of correct facts recalled (ie being drunk means you remember fewer details), but it doesn’t influence the number of incorrect facts recalled.
Flowe and a number of other psychologists argue that scientists have been overstating the unreliability of memory. It’s easy in experiments for people to get details mixed up, especially if they are asked misleading questions. It’s much harder to implant rich memories of events that never happened. Even in Loftus’s mall study, those who falsely remembered getting lost said they did not have a very clear memory of the event. People generally have a well-honed sense of which details feel hazy. Recent studies suggest the reason eyewitness identification is often unreliable isn’t because witnesses’ memories are flawed, but because they may be placed under undue pressure by police and lawyers to deliver a confident courtroom identification.
The false memory wars might be as much about politics as science. In England and Wales, fewer than one in 60 rape cases leads to a charge. “There’s a lot of misogyny in this field,” said Flowe. “Nobody says, ‘well, the man, being self-serving, might have reimagined this whole non-consensual rape as consensual because it would certainly behove him to do so.’”
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This article appears in the 02 Feb 2022 issue of the New Statesman, Going Under