Shadow of Doubt investigation reveals rise in men facing ‘memory’ charges
Memories of abuse, often first surfacing during counselling, are forming the basis of a new wave of prosecutions causing ripples in the legal world.
Child abuse prosecutions involving controversial ‘repressed memories’ retrieved through counselling appear to be increasing, despite warnings from professional psychotherapy organisations that such memories can be unreliable or even false.
The cases have been unearthed as part of The Australian’s Shadow of Doubt podcast investigation, presently topping audio charts around the world.
A South Australian father was jailed for 12 years on the basis of his teenage daughter’s repressed memories of childhood sexual assaults, which she recovered while undergoing counselling about an incident at school.
The High Court last year rejected the father’s appeal application.
In New South Wales, a schoolteacher was awarded costs after the collapse of his trial on charges of raping a 10 year-old student in 1995.
The alleged victim had not remembered the assaults until he underwent a therapy technique called Eye Movement Desensitisation and Reprocessing at a clinic in Thailand in 2016.
In Victoria, two men stood trial last year in separate cases. A martial arts trainer faced charges of raping a former client 26 years earlier, after the woman suddenly remembered the incidents while in counselling for an unrelated sexual assault.
In the second case, a man was accused of sexually assaulting his neighbour’s young daughter more than a decade earlier, after she recovered memories of the assault following an online search for the possible causes of her pseudo-seizures.
Both men were acquitted in judge-only trials, with the judge in the first case describing the complainant’s evidence as “implausible”.
Defence lawyers say the cases highlight a growing problem caused by prosecutors pursuing sexual assault matters even when there are fundamental questions about the reliability of the evidence.
Nick Vadasz, the solicitor who represented the South Australian father, said the outcome of that case concerned him, as his client’s daughter acknowledged in court that she had no memory of the assaults until she underwent counselling at the age of 17 for an unrelated incident at school. She had not told police or prosecutors that her memories had been repressed.
Mr Vadasz noted that it was a judge-only trial, and said that while he supported taking sexual assault allegations seriously, there appeared to be an overwhelming public view now that “allegation is the truth of the matter“.
The former prosecutor Margaret Cunneen SC, now a defence barrister, said prosecutors appear to see their role as the complainant’s advocate, rather than assessing cases carefully for their viability.
Ms Cunneen, who prosecuted many sexual assault cases, said the danger with this approach was twofold. Some innocent defendants might be convicted if juries feel a pressure to convict, while at the same time, the overall conviction rate could decline if non-viable cases are pushed through to trial.
“If you are not filtering anything out at the prosecution level and running everything, then you could only expect the conviction rate to decline,” she said.
The Australian’s Shadow Of Doubt podcast has been investigating the case of a NSW couple who are serving lengthy jail terms for the prolonged abuse and torture of their daughter.
The daughter recovered “blocked out” memories of the alleged assaults after undergoing counselling for an unrelated assault by a sports coach.
The solicitor representing the mother in that case, Greg Walsh, says the case is one of a number he has encountered in recent years in which the allegations arose through recovered memories retrieved through counselling.
He believes the pressure on prosecutors to secure convictions is leading to potential miscarriages of justice.
“Politically and also ideologically, politicians and so-called experts and others have been driving for an increase in the conviction rate,” Mr Walsh said. “They have a belief that accused persons are not being convicted as frequently as they should be, and there has been a concerted campaign to make it more and more difficult to defend yourself in these cases.”
Major counselling organisations have warned for decades that repressed or recovered memories of long-forgotten incidents of child abuse can be unreliable or false. The National Health and Medical Research Council and the Royal Australian and New Zealand College of Psychiatry advise against therapy techniques which attempt to recover such memories and state that “in the absence of corroboration, it is not possible to unequivocally determine the validity of recovered memories”.
The unreliability of such memories became clear in the 1990s when there was an epidemic of historical allegations of abuse involving satanic cults, which proved to be untrue. Despite this, prosecutors in many jurisdictions have pursued such cases in recent years.
In Queensland three years ago, a 93 year-old retired fencing coach was put on trial charged with sexually assaulting a former student in the 1980s. His accuser said she had not recovered her memories of the abuse until 2007, after undergoing a religious conversion to Jesus. The man was acquitted by a District Court judge.
That same year, the NSW Court of Criminal Appeal overturned the conviction of Sydney man who had been sentenced to four years’ jail after a brother and sister who were once his childhood neighbours accused him of extensive sexual assaults they had remembered in the form of “flashbacks” and suppressed memories. The appeal judgment described the unsupported allegations as unreliable and at times “simply fantastic”.
*The images used with this podcast investigation are for illustrative purposes only and bear no resemblance to the real people in this story, who cannot be identified for legal reasons.
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