He Said, She Said - How misinformation clouds the memory of accuser and accused in sexual assault cases

A new study suggests both defendants and complainants are equally prone to memory distortions in sexual assault cases.

Challenging long-held assumptions about how memory distortion should be understood in the courtroom, this research delivers compelling evidence that both the accused and the complainant in “he said, she said” cases are equally susceptible to memory errors.

There are many legal cases where the only evidence is the recollections of the people involved, with experts presenting opinions on the extent to which people can misremember their own experiences.

When it comes to sexual assault cases, the focus is almost always on the memory of the complainant – who is often treated as an unreliable narrator of her experiences – while the accused’s memory rarely comes in for the same degree of scrutiny.

Published in Nature’s Scientific Reports, the study by researchers from University College Dublin and University College Cork involved a series of experiments using an immersive first-person video to simulate a date that ended in sex.

Those taking part were later assigned the role of either the complainant or the accused in a fictional sexual assault scenario before being exposed to fabricated “witness” accounts that included misleading details and altered key facts from the video. For example, some participants were shown testimony from a barman claiming that the accused was plying the complainant with drinks, even though the original video showed nothing of the sort.

Across more than 1,300 participants in three separate experiments, it was found that individuals in the role of both complainant and accused were equally likely to absorb and recall false details, even when those details supported their assigned narrative.

“We hope that this study will encourage people to re-examine their assumptions regarding the role of memory in sexual assault cases. We have noticed that these cases often hinge on discussions of the complainant’s memory,” said lead author Associate Professor Ciara M. Greene, UCD School of Psychology.

“As memory scientists, we find this strange, since we know that everyone – male or female, complainant or accused – is human and has the same memory frailties. This study provides concrete evidence that memory errors and distortions are not unique to one side of contentious legal cases.”

For the study, two versions of the simulated date were filmed, one featuring a male actor and the other featuring a female actor.

The two videos were identical in all other respects, with each filmed from the perspective of a person going on a date with the man (Samuel) or the woman (Jessica).

The first cohort of participants in both roles received the same misinformation details (experiment 1), wherein those in experiment 2 and 3 were provided misinformation that was tailored to their assigned roles – that is, information designed to make the sexual assault appear more likely or less likely to have occurred.

Strong misinformation effects were observed in both groups, with the complainant and accused equally likely to misremember details of the events leading up to the sexual encounter.

The study included both male and female victims and perpetrators, but interestingly found that memory distortion effects were not affected by gender.

While the study was based on fictional scenarios, its authors argue it highlights that memory is reconstructive and subject to bias, regardless of one’s role in a dispute.

These results align with the argument made in Associate Professors Greene and Murphy’s recent book, Memory Lane: the Perfectly Imperfect Ways We Remember, published by Princeton University Press.

Co-author Assoc Prof. Gillian Murphy (UCC School of Applied Psychology) noted that: “We have a responsibility as memory scientists to banish myths about memory. In our book and in this paper, we stress that our memories mostly serve us very well and provide a good account of our experiences, but they can sometimes be prone to error, no matter what side of the courtroom you’re on”.