Sexual Penetration and Contaminated Memories
by: Ryan Scott • February 1, 2025 • no comments
"[The] phenomenon of false memory, and the circumstances that can contribute to the creation of a false memory, are complex and beyond the experience of ordinary jurors. . . ."
State v. Dye, 286 Or App 626 (2017)
There are a number of attorneys who are skeptical of the benefits of hiring a memory expert in a child sex abuse case (or any other case for that matter). Often, these attorneys -- many of whom are in their fifties or sixties -- have never actually consulted with a memory expert. By consult, I don't mean a five minute conversation but actually hiring them to review the case. They will also tell you that the prosecutors they've talked to will claim they've never lost a case in which the defense hired a memory expert. They will also tell you, contrary to the quote from State v. Dye above, that jurors understand the idea of suggestion and don't need an expert to point it out.
I'm not going to get into a whole long argument why I think these attorneys are wrong and are committing malpractice when they fail to have a meaningful consultation with a memory expert when there is any possible the accusations are based on a false memory. But I do want to give one very narrow, very specific example that comes up frequently in sexual penetration cases. Since sexual penetration for a child under 12 carries a mandatory 25 year sentence, the punishment is far more severe than a sexual abuse I, which is "only" 75 months. If you aren't used to thinking about these issues, or even if you are, the following will likely make you uncomfortable.
In a case of mine, a memory expert testified as follows regarding how easy it is to create a false memory, even among adults:
“I think one of the great classic studies was one in which people witnessed a car collision and they were either asked, you know, how quickly were the cars going when they bumped into each other or they were asked how quickly were the cars going when they smashed into each other, and that was the entire manipulation, the substitution of the word smashed for bumped, and then you come back a week later and you ask people in a neutral fashion a variety of questions about the scene, including a question about ‘Was there any broken glass in view?’ and in fact there was none, but for the participants who had been asked ‘How quickly were the cars going when they bumped into each other?’ the vast majority, over 90 percent said correctly that there was no broken glass that they had seen, the participants who had been asked the smashed question, were 300 percent more likely to remember broken glass, even though there was none, this study is often quoted in part because it’s such a small manipulation and also because the manipulation has a lasting effect, you know, changing how people recall the scene a week later, I mean, that’s one of the classic studies.”
Again, these were adults, but a single one-word difference in a single question substantially changed how they remembered the incident two weeks later. Now, apply that logic to the question by a concerned parent to a six year old girl who has just disclosed someone (uncle, brother, grandfather) touched her private parts, "Did his finger go inside of you?"
I've never been in this situation as a parent, but I can tell you it's a very common question by fathers in this situation. If the child says "yes," that's a charge of sexual penetration. "No" would probably only be a sex abuse I. In other words, casting doubt on the answer could be the difference between 75 months in prison and 25 years.
If the child answered "yes," was that evidence of memory contamination? No one could ever know for certain. But given what experts know about how easy it is that just a single question -- especially to a child between the ages of three and eight -- can alter their recollection of events.
Note also that the child would not be lying. If the prosecutor focuses in their closing argument that the child had no reason to lie, that could be a hundred percent true and also completely irrelevant.
Complicating this further is what is meant by "inside." In State v. Gonzales, 241 Or App 353, 357, 250 P3d 418, rev den, 350 Or 571, 258 P3d 527 (2011), the Court of Appeals assumed the correctness of defendant's argument that "penetration" for purposes of ORS 163.411 requires proof that the vagina, rather than the external genitalia, was penetrated. The Court implied in Gonzales, for purposes of ORS 163.411, the relevant distinction is between touching between the labia and penetrating beyond that to the vagina. 241 Or App at 357-58. (By the way, in a sex pen case, you need to ask for an instruction consistent with the Gonzales opinion.)
If you are a defense attorney, you can judge for yourself whether the kind of testimony I quoted above would be useful in shaping your closing argument in the kind of sexual penetration I described. Will you win because of it? Well, it could make a difference, but who knows. The odds in these cases are heavily stacked against us. This isn't the type of case any lawyer can do. It definitely isn't the type of case every attorney can do well.