Should there be an expectation of a faultless memory in sexual assault victims?

One particular piece of evidence called the complainants testimony into question, because she stated she had not contacted Ghomeshi after the alleged assaults took place.
One particular piece of evidence called the complainants testimony into question, because she stated she had not contacted Ghomeshi after the alleged assaults took place. Mark Blinch/Reuters

Most people in the Toronto area, if not across the country, have been rivetted to the Jian Ghomeshi sexual assault trial and what is happening with the cross-examinations of the complainants. The focus, in putting all three complainants on the stand during the trial, was whether they were believable victims.

In fact, the testimony of the three complainants has been put under a microscope during the trial. The first witness, for example, faced a gruelling cross-examination by Ghomeshi’s lawyer Marie Henein.

One particular piece of evidence called the complainants testimony into question, because she stated she had not contacted Ghomeshi after the alleged assaults took place in December of 2002 and January 2003. However, Heinein showed e-mails the complainant had sent more than a year after the alleged assaults took place. The complainant said she didn’t remember these e-mails when she spoke to the police and the Crown.

This is problematic, because forgetting such details can be devastating to sexual assault cases. Daniel Brown, a Toronto lawyer who specializes in sexual assault cases, told the National Post if a witness is inconsistent in the story she tells about her sexual assault, then all of her evidence is going to be in question.

Is it unusual not to remember that someone sent e-mails more than a decade ago when the alleged assaults happened?

Nicole Pietsch, co-ordinator of the Ontario Coalition of Rape Crisis Centres, told the Huffington Post that it isn’t unusual for alleged sexual assault victims not to remember some details. “A lot of it is based on her ability to keep it together or her ability to really recount details that are not even that important. . . . The idea that to get those details right every single time is a reflection that she’s telling the truth or not, or that the incident itself was a big deal or not, is completely false.’’

Indeed, Pietsch’s explanation is consistent with what some experts have found to happen to the memory of victims of assault.

In a piece written for Time magazine, James Hopper, a psychologist who trains investigators, prosecutors, judges and military commanders on the neurobiology of sexual assault, and forensic consultant David Lisak explained what happens to the memory of sexual assault victims.

Using an analogy of a police officer in a life-and-death situation staring at the wrong side of a gun, the writers explained that a sexual assault victim’s mind would react the same way as the police officer’s: “It is very likely that he will not recall any of the details that were irrelevant to his immediate survival . . . what color was the shooters hair? What was the shooter wearing?”

Indeed, victims will remember some details surrounding the events of their assaults, but won’t remember other details — or if they do, it’ll be in in “jumbled and confused fragments.”

They conclude: “it is not reasonable to expect a trauma survivor — whether a rape victim, a police officer or a soldier — to recall traumatic events the way they would recall their wedding day.”

However, not only are her memories fragmented, but with the passage of time, they often become hazy. Former Crown prosecutor Karen Bellehumeur told Metro: “not only has the memory of the survivor of the abuse degraded so that peripheral details are not as clear. . . .”

Given the nature of what a sexual assault victim’s memory is like after trauma, especially if that trauma happened a long time ago, there seems to be much evidence that on the stand it could be difficult to recall whether or not one sent e-mails more a decade ago.

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