“All I really remember is retching in the street afterwards,” says Lee*, 29. “And being absolutely terrified that he was going to pull me into the car.” Leaving her house in Sussex on a sunny Saturday afternoon, she hadn’t thought twice when a car pulled up at the kerb and a man stuck his head out, asking for directions. She can’t remember what street name the man said but she can remember that when she stepped forward, he tried to grab her wrist with one hand; with the other, he was masturbating.
“Did you get his number plate?” This is the question she was most asked by friends and family. “That made me feel pretty ashamed, that I hadn’t been quick enough to write it down or take a picture,” she reflects.
Encouraged by her parents, Lee reported the incident to the police, who invited her to the station to see if she would recognise him on any of their databases. “They put this giant book of photos of men in front of me. I remember flicking through them, terrified that I would miss him and that I would be responsible for him going on to harm more women,” she says. “There were so many faces that it became impossible to confidently say who he was in this sea of men. I felt like I was wasting police time and that as much as I felt I’d let myself down, I’d let down his future victims.”
Lee’s experience of blaming herself for her lack of memory isn’t surprising when considered in a broader context. Before women get anywhere near reporting sexual assault crimes, we have to do the mental gymnastics of overcoming low conviction rates, a stubborn and pervasive rape culture and an increasing awareness, exposed in the wake of Sarah Everard’s murder, of a police culture that permits, minimises, perpetrates and covers up violent crimes against women.
We might have dismissed a woman’s memory because she was drunk. But if we’d listened, recorded her account, it could have helped link her to a repeat offender.
Professor Heather Flowe
Put simply, we doubt we’ll be believed and we doubt anything will be done about it. We also fear that we will be blamed for not remembering ‘correctly’. On the first day of the current Ghislaine Maxwell trial, her defence suggested the accusers had “unreliable and suspect” memories that could have been “corrupted” over the years or “contaminated” by “constant media reports”. Doubting victims’ memories can be hugely debilitating. In 2013, Frances Andrade was repeatedly called a liar in court as she accused her former choirmaster of abuse. In a text to a friend she said that the experience made her feel like she had been “raped all over again”. A few days later, she killed herself. The blind spots in our memories become another indicator that we are not to be trusted and, as Lee felt, somehow at fault.
Memories are a function of the brain. Essentially, they are encoded information that we store and recall in different ways as and when we need to. But memories aren’t just an inventory; they can form our identity. They provide the emotional patchwork of our lives, building blocks that help shape our reality. For some people, memories are evidence: proof of a truth that no one else saw or someone else refutes.
“It was rare, I was there, I remember it all too well,” sings Taylor Swift. Her memory is her undeniable witness but this statement is an affirmation she is making for herself. Swift’s musings resonate with so many women because our memories validate the parts of our lives that society doubts.
Elizabeth Loftus, the renowned American professor of law, psychology and criminology, would dispute that memories are evidence of anything at all. In fact, she believes, they mostly mislead us.
Loftus’s sensory experiments into the malleability of memory started in the 1970s when she was an assistant professor at the University of Washington. These included the Lost in the Mall experiment, in which a false memory of being lost in a shopping centre as a child was implanted in subjects’ minds. A quarter of participants subsequently believed it had happened.
For years, Loftus has been exceptionally influential in suggesting that memories are shape-shifting fictions, closer to imagination than fact, leaving us the “innocent victims of our mind’s manipulations”. Far from being a filing cabinet of true events stored away, memory, she writes, has “enormous powers – powers even to make us believe in something that never happened”.
If you’re discovering Loftus for the first time, it’s a disconcerting experience. How, you’ll ask yourself, did I not know about this woman? She’s deemed one of the most important American psychologists of the last few decades and as a woman, she’s a trailblazer in her field. “No modern academic has done more to advance our understanding of the malleability and fallibility of memory,” says Stanford Magazine, where she was once a student.
How Loftus applies her findings has brought her another form of notoriety, however. She has been a defence witness in some of the biggest sexual assault and abuse cases of our time, from Ted Bundy to Harvey Weinstein, Michael Jackson, Bill Cosby and, now, Ghislaine Maxwell, taking the stand to testify that a victim’s memories cannot be trusted. “If the MeToo movement had an office,” her brother has said, “Beth’s picture would be on the ten-most-wanted list.”
Loftus’s work, along with others, has also discredited the idea that memories can be deeply buried and retrieved much later on. Her research helped kickstart the memory wars of the 1990s. On the other side of the battlefield, psychologist Jennifer Freyd put forward her theory of psychogenic amnesia, suggesting we forget trauma for survival. (Freyd’s accusation of her father abusing her as a child was forced into the public domain by her mother. Freyd’s father denied this and in response set up the False Memory Syndrome Foundation – another key player in the memory wars.) Meanwhile Ross E. Chiet, a professor at Brown University in the US, has started The Recovered Memory Project, a digital archive of cases where repressed memories have been independently corroborated.
As the wars rage on, and as hazy as memories themselves can be, different corners of science fail to land on a consensus about their validity and, therefore, the experiences of those who claim to have had them.
What does this mean for a legal system in which individuals’ memories are put on the stand?
If someone says they’re not sure or they can’t quite remember when being questioned, that’s great. It means you’ve got a very authentic witness who is reflecting on their memory strength.
Professor HEATHER FLOWE
A new wave of science is also questioning the dominance of Loftus in both the lab and the courtroom. In 2018, John Wixted from the University of San Diego, California wrote in Forensic Science International: “The time has come to exonerate eyewitness memory.” That same year, in a paper published in Psychology of Learning and Motivation, two American academics, Scott D. Gronlund and Aaron S. Benjamin, concurred. “The new science,” they wrote, “shifts the blame for faulty testimony from unreliable eyewitnesses to other actors in the law enforcement and legal community.”
Heather Flowe, a professor of forensic psychology at Birmingham University, is of the same school of thought and is applying this “new science” to rape cases. She advocates greater use of memory testimony in sexual assault and rape trials.
According to Flowe and others, despite Loftus’ shadow, the science does show that memory, even after consuming alcohol – a highly effective weapon in the arsenal of victim-blaming – is more reliable than we’ve been led to believe.
Working with police and prosecutors, Flowe’s research aims to discover methods to improve the accuracy of rape complainant statements by improving the process by which memories are extracted.
As Flowe sees it, current questioning techniques used by police or prosecutors, informed by the scientific thinking popularised by Loftus, are the same as “contaminating forensic evidence”.
Flowe gives the example of how Loftus’s experiments work. “It is a two-alternative, forced choice test,” she tells me (essentially an either/or option). “For example,” Flowe says, “in a Loftus-type experiment, subjects are asked: ‘Was it a red car? Or was it blue?’”
“We should be saying: ‘Tell me what happened.’ When you say that, then you get a higher degree of accuracy.” This is because, Flowe explains, people are drawn to their most vivid memories – the ones they’re most confident in, the ones that come to mind most quickly (what Flowe calls confidence indicators). Transfer this situation to a police station or courtroom and instead of being asked what happened and being led by the dominant memories, women – and their legitimacy – are routinely tested on memories they simply may not have.
Focusing on the validity of a survivor’s memory is a red herring, unless we can be confident in the way the memories are withdrawn from an individual. We need the confidence that interrogators, such as police officers, lawyers and other agents of the criminal justice system, don’t unwittingly tamper, destroy or ignore the potential evidence that a person could offer up. If a survivor is asked only about the colour of her attacker’s car and gets it wrong, she is deemed unreliable. Whether she can remember the smell of the seats, thereby revealing the attacker’s occupation (or some other such clue) is beside the point. It’s too late, she’s already been discredited.
I am surprised by what Flowe tells me. I too believed that memories were perceived as unreliable and felt that unless you had a completely clear memory – 100% complete – it was game over for ever being believed. Not so. “If someone says they’re not sure or they can’t quite remember when being questioned, that’s great. It means you’ve got a very authentic witness who is reflecting on their memory strength,” says Flowe. Plus, she says, nobody should expect you to remember every detail. “We don’t remember everything, we remember what we attend to.”
Flowe advises keeping an open mind about trauma and memory. “It makes me cringe a bit when I hear that memories of people who have been traumatised are necessarily going to be fragmented or that you need to wait several days before questioning them. Because there are surely many experiences to the contrary, where people can’t stop remembering. And they remember things very vividly.”
For Lizzy Dening, the creator of Survivor Stories, a project that collects the experiences of sexual assault survivors, the doubting of memory isn’t surprising considering the rarity of criminal convictions under the current system compared to the number of people who allege incidents. (In the year to March 2020, police forces in England and Wales recorded 58,856 cases of rape. These led to just 2,102 prosecutions.) “We doubt the validity of our memory,” Dening says, “because we’ve been exposed to a culture that doubts the same thing … and ultimately, it’s all just a distraction from what the actual problem is.”
This is why Flowe and her colleagues’ work is so interesting. It has the potential to upend the common narrative in rape culture that we’re not reliable witnesses to our own experiences – because we’re drunk, or young, or female, or showing too much skin – and that when a crime is committed against us, ‘experts’ are better placed to say what really happened. Furthermore, properly handling survivor testimony, according to Flowe, can lead to greater conviction of serial offenders. “We might have dismissed a woman’s memory because she was drunk. But if we’d listened, recorded her account, it could have helped link her to a repeat offender.”
What Flowe is describing here is similar to the high-profile case of John Worboys, the black cab driver who drugged his passengers and then sexually assaulted them, leaving them with no memory of the attack. Fourteen women complained to the police over six years but links were never made. Survivors were asked instead about the colour of their lipstick and were doubted for saying they got a black cab, not a minicab, because it didn’t fit with a common narrative.
Today, Avon and Somerset Police’s groundbreaking Project Bluestone is trying to link survivor testimony to catch repeat offenders and create what they describe as a “gold standard” for “victim engagement”. Flowe applauds this, especially for amplifying the importance of survivor testimony, but only if testimony is taken properly and survivors aren’t doubted because of lazy stereotypes. Flowe also warns that a lot of our focus is on remembering details about strangers but as we know, many people know their attacker.
Scientific research which proves that memory is of value but procedure in handling the memory needs to be better also takes the responsibility off the survivor and places it on the institution. So often we ask women to prevent violence against themselves: don’t go out at night, leave him sooner, remember better, more convincingly. If we don’t, we are to blame for what happens to us. Many people are rightly sceptical of adopting the blanket ‘believe women’ approach advocated by the #MeToo movement and there are good reasons for rigour when dealing with the criminality of sexual assault and rape. Case in point: Anthony Broadwater, who was wrongly convicted of raping the novelist Alice Sebold in 1982, has just had his conviction overturned after serving 16 years in prison. Nonetheless, Flowe and her colleagues’ work offers a vital rebalancing that removes victims from a negative starting point – where they are “a victim of their own mind manipulation” – and empowers them to be a credible source that could help expose an injustice.
The field of memory is large and conflicting and complicated but what strikes me is that it is existential, too. It gets to the heart of us: we are what we remember. Or what we choose to remember, or what we’re conditioned to remember. Remembering, or not, can come with high stakes and a very painful payoff. But if the science shows that our testimony has value, that’s something we shouldn’t forget.
The advice from the Met Police is to always report it if you have been the victim of rape or sexual assault, and there are many different ways you can do that. If you have experienced sexual violence of any kind and need help or support, please visit Rape Crisis or call 0808 802 9999.
*Name changed to protect anonymity.
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