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The Fragile Role Of Memory In The Allegations Against Judge Kavanaugh

The opinions expressed by columnists are their own and do not necessarily represent the views of

No matter what happens this week, we’ll likely never truly know what exactly, if anything, happened between Christina Blasey Ford and Brett Kavanaugh that night in 1982, or even between the judge and his latest accuser, Deborah Ramirez, who after “carefully assessing her memories” from a drunken college party 35 years ago, has finally decided that it was, indeed, Brett Kavanaugh who exposed himself to her that night.


This isn’t necessarily because Ford and Ramirez are purposefully lying – although they very well could be – but because all the evidence we have, or don’t have, so far seems to suggest that what they are “remembering” from the distant past may not be remotely close to what happened, or didn’t happen, at all.

Much has been mentioned about “believing women” and how “brave” Dr. Ford is to have decided to put her life on hold to come forward with these allegations on the eve of Judge Kavanaugh’s confirmation, but not nearly enough has been said about the dubiousness of any so-called “memory” possibly dredged up using this extremely controversial pseudoscience.

Which led to my interview, published Sunday, with University of California, Irvine, professor and cognitive psychologist Elizabeth F. Loftus, a noted expert in the field of human memory. I ran across Loftus’ work during my research into the controversial practice of psychotherapy after running across the word – and a subsequent tingling of my spidey senses – in the original Washington Post piece about Ford’s accusation.

I wanted to know more, and I wanted to know if she had any “red flags” when seeing the word as well. 

“Yeah,” she told me, laughing. “Because I still feel that there’s a chance that continued psychotherapy beyond the initial disclosure session could have resulted in what it sometimes does - developing the story, making it more coherent, adding details. But did those details get developed in psychotherapy? And again, we don’t know ... You can have intelligent, educated people who develop distorted memories. It could happen to any of us.”


“It is certainly possible that it wasn’t quite as frightening or as violent as she’s now describing it and as people are now refer to it, as a violent attempted rape,” continued Dr. Loftus on the possibility that Ford could have also somehow “amplified” something that happened - such as a misplaced grope or an awkward kiss - into something more sinister. “It’s possible that it got more extreme in the course of her thinking about it.”

Thankfully, especially for those who have been accused and even convicted on the basis of a false memory, much has recently been written on the subject. 

In a Wired article from July 2017 entitled, “False memories and false confessions: the psychology of imagined crimes,” Emma Bryce writes about London South Bank University criminal psychologist Julie Shaw, who “studies how false memories arise in the brain and applies it to the criminal-justice system.”

“Contrary to what many believe, human memories are malleable, open to suggestion and often unintentionally false. ‘False memories are everywhere,’ [Shaw] says. ‘In everyday situations we don't really notice or care that they're happening. We call them mistakes, or say we misremember things.’ In the criminal-justice system, however, they can have grave consequences.”

Among the “red flags” Shaw looks for in cases she works: “who the accuser was with when they recalled the memory, what questions they were asked and whether in other circumstances, such as therapy, somebody could feasibly have planted the seed of a memory that took root in their minds.”


“Finally, Shaw looks for claims that the memory resurfaced suddenly, out of the blue, which can point to repressed memories,” Bryce wrote. “... a discredited Freudian concept that supports the premise that dredging up supposedly forgotten memories can explain a person's psychological and emotional turmoil, but scientifically, it's unsubstantiated.”

Sound familiar?

The Wired article details several cases where defendants were fingered and convicted based on the false or repressed memories of a witness, only to be overturned later when irrefutable evidence emerged. 

Additionally, the book Miscarriage of Memory, published in 2010, includes: “Thirteen [British] case histories, from over 2000 on record at the BFMS, where allegations of historic child sexual abuse involved evidence based on uncorroborated ‘memories’, often newly ‘recovered’ during therapy.”

And there’s plenty more on the subject, like here, and here

“Typically such cases occur when a vulnerable individual seeks help from a psychotherapist for a commonly occurring psychological problem such as anxiety, depression, low self-esteem, and so on,”  wrote Chris Smith for The Guardian in 2010. “At this stage, the client has no conscious memories of ever being the victim of childhood sexual abuse and is likely to firmly reject any suggestion of such abuse. To a particular sort of well-meaning psychotherapist, however, such denial is itself evidence that the abuse really did occur.”


“Just because someone is telling you something in a lot of detail and with a great amount of confidence doesn’t mean it happened,” said the aforementioned Dr. Loftus in 2014. 

“Although our memories seem to be a solid, straightforward sum of who we are, strong evidence suggests that memories are actually quite complex, subject to change, and often unreliable,” writes Psychology Today on the topic of false memories. “We reconstruct memories as we age and also as our worldview changes. We falsely recall childhood events, and through effective suggestion, can even create new false memories. We can be tricked into remembering events that never happened, or change the details of things that really did happen. Malleable memory can have especially dire consequences in legal settings; highlighted areas of interest are children as eyewitnesses, sexual abuse, and misidentification.”

“To quote the American Psychological Association, there is ‘little or no empirical support’ for the concept of repressed or dissociated memories of sexual abuse,” wrote Psychology Today’s Temma Ehrenfeld in a 2015 piece about the repression of childhood memories. “False memories are well-documented in legal history. We are vulnerable to what psychologists call ‘suggestion’ and can innocently construct false or ‘pseudomemories’ of events that never occurred, if they are encouraged by someone we trust. One disturbing 2007 study found that when people recalled sexual abuse in childhood during therapy their account was less likely to be corroborated by other evidence than when the memories came without help. Sadly, well-meaning therapists have done their patients harm.”


Finally, this Associated Press article destroys the concept of “confidence” being an indicator of truth and shows how perception at the time can lead to honesty from both parties, but not truth. 

“Your beliefs and expectations shape what you perceive in your life and how you later remember those events, researchers say. 'You are constructing the reality out there as it happens, and therefore you get stuck with that ... as the most accurate you can have for your memory,' said David Rubin, a professor of psychology and neuroscience at Duke University. 'That's all you have to base your memory on.'

“So in a situation where a woman fears being raped by a man, her memories might be shaped by that fear into a recollection that overestimates the threat, whereas the man might consider it 'just playing around' and simply forget it later on, Rubin said. And both could be completely honest about their recollections.”

All this, to be sure, is a lot to remember as Christine Ford and Deborah Ramirez share their own memories. But how it’s all interpreted in the end will certainly be memorable, as history literally hangs in the balance.

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