Memory as evidence: How normal features of victim memory lead to the attrition of rape complaints
| Date | 01 July 2017 |
| Published date | 01 July 2017 |
| DOI | 10.1177/1748895816668937 |
| Author | Martin A Conway,Katrin Hohl |
| Subject Matter | Articles |
research-article2016
Article
Criminology & Criminal Justice
2017, Vol. 17(3) 248 –265
Memory as evidence: How
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https://doi.org/10.1177/1748895816668937
DOI: 10.1177/1748895816668937
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memory lead to the attrition
of rape complaints
Katrin Hohl
City University London, UK
Martin A Conway
City University London, UK
Abstract
The complainants’ memory of the rape is commonly the key and frequently the only evidence in
the investigation and prosecution of rape allegations. Details, specificity and consistency in the
victim’s recollection are central criteria that criminal justice agents – police, prosecutors and
juries – use to assess the credibility of the victim account. However, memory research has shown
these to be poor indicators of the accuracy of a memory. In this article we develop a conceptual
model of the pathways through which normal features of the human memory result in complaints
of rape dropping out of criminal justice process without a full investigation, prosecution or
conviction, with a particular focus on the role of inconsistencies in the victim account. We
provide initial, tentative evidence from a large, representative sample of rape complaints and
discuss implications for criminal justice policy.
Keywords
Attrition, criminal justice, memory, policing, rape complaints, sexual violence
Introduction
Attrition is the process by which a complaint of rape fails to successfully progress
through the criminal justice process. Attrition in England and Wales is staggering: 93 per
cent of complaints of rape reported to the police do not result in a conviction; 82 per cent
Corresponding author:
Katrin Hohl, Department of Sociology, City University London, Northampton Square, London, EC1V 0HB, UK.
Email: Katrin.Hohl.1@city.ac.uk
Hohl and Conway
249
do not even go to court (Ministry of Justice et al., 2013). A significant proportion of
these, we argue, may be wrongly dismissed because the criteria criminal justice agents
use to judge the reliability and veracity of a victim’s complaint of rape are, from a mem-
ory research perspective, flawed. The criminal justice process places high demands on
human memory when given in evidence: the amount of minute, often insignificant
peripheral detail the victim remembers, and the internal consistency of the victim account
are key criteria the police and prosecution use to assess the veracity of a complaint, and
its potential credibility in court (Ellison, 2005; Fisher et al., 2009; McMillan and Thomas,
2009; O’Keeffe et al., 2009; Temkin, 1997, 2002). Yet, memory research has established
that inconsistencies are a normal feature of memories and that remembering only few
details is the norm, remembering many peripheral details unusual (Conway et al., 2014;
Howe, 2013). The implications of such criminal justice misconceptions of, and unrealis-
tic demands on memory are significant, in particular for complaints of rape.
In complaints of rape the victim’s memory is frequently the only and nearly always
the central piece of evidence of what happened during the alleged rape. Forensic evi-
dence, when available, can sometimes prove that sexual intercourse took place, and on
occasion circumstantial evidence can corroborate the victim account of their memory of
the events that took place (for short, ‘victim account’ in the remainder of the article).1
Ultimately however, the victim account is normally still required to prove a lack of con-
sent.2 Despite the centrality of the victim account for rape convictions, there is surpris-
ingly little research on how criminal justice agents use victim memory as evidence: we
suggest that herein lies a missed opportunity to address part of the attrition problem. The
attrition problem refers to the persistent finding that most rapes are not reported to the
police, and that of those reported the majority drop out of the criminal justice process and
thus do not result in a conviction. The attrition problem persists despite the academic
research, legal reform, inspection reports, reviews and inquiries and legal reform of the
past decades (Hohl and Stanko, 2015).
Much of course has been established already: the field of memory research has pro-
duced a wealth of insight into human memory, including its fallibilities and proneness to
error (see, for example, Baddeley et al., 2009; Schacter, 2001). With regard to criminal
justice outcomes of rape complaints, we know that the victim’s evidence is nearly always
central and that the case outcome often stands or falls with it. It is well established that
rape victims are routinely doubted and not believed, and their testimony painstakingly
scrutinized by the defence council during cross-examination in court, a scrutiny that
often succeeds in discrediting the victim (see, for example, Temkin and Krahé, 2008).
What is known reveals a conundrum: memory evidence is central and frequently the
only evidence in rape cases. It thus appears only correct for it to be heavily scrutinized
by the police, prosecution and in court. Memory research has shown human memory to
be fallible. One might thus argue that the police, prosecution and courts are rightly doubt-
ful of rape complaints that rest on victim testimony alone.
Yet, at the same time the evidence suggests that in fact only a very small proportion
of rape complaints are false (CPS, 2013; Kelly, 2010; Saunders, 2012). The criminal
justice system is faced with an unprecedented number of rape cases as more victims
come forward than ever (ONS, 2015). This includes an increasing number of historic
child sexual abuse cases in which the problem of memory as evidence is powerfully
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Criminology & Criminal Justice 17(3)
amplified. It is thus vitally important to make explicit, understand and address the issue
of criminal justice use of memory evidence in rape complaints, and its implications for
the outcomes of rape cases; that is, the attrition problem.
This article makes an initial step in this direction. First, by bringing together the
domains of existing research. At present, research on human memory and criminological
research on the treatment of rape complaints within the criminal justice system are
largely disconnected bodies of literature. The article provides a systematic, albeit brief,
review of both literatures – the modern view of human memory3 and criminal justice
conceptions of memory evidence. Second, we develop a conceptual model of the path-
ways through which typical features of victim memory, such as inconsistencies in the
victim account, lead to attrition. We put a key hypothesis derived from the conceptual
model to the test using a large, representative sample of rape complaints made to the
London Metropolitan Police Service (MPS). The results provide evidence in support of
the hypothesis that inconsistencies in the victim account increase the odds of attrition.
We conclude with a discussion of the implications of the findings for criminal justice
policy and questions for further research.
The Modern View of Human Memory
According to the modern view of human memory, memories are mental constructions.
They contain various types of information, conceptual knowledge and imagery.
Memories represent only short time slices of experience, and because they are ‘sam-
ple’ fragments derived from the experience rather than a (complete and literal) record of
it, never fully represent an experience. Thus all memories are time-compressed relative
to the event they represent (Conway and Pleydell-Pearce, 2000). For example, recalling
an event such as a dinner party one attended some months previously takes only a few
seconds or minutes although the event itself, the party, may have lasted all evening.
Because of time-compression, gaps and missing information, rather than being unusual,
are fundamental characteristics of human memory. From a memory perspective accounts
purporting to be of memories that are fluent rather than fragmentary and that contain
many specific or peripheral details most probably are not memories or, at least, not
accounts of memories in any straightforward way. Instead, they are over-rehearsed nar-
ratives, the core of which may be a memory fragment, to which order and details have
been added, often unconsciously, sometimes deliberately, and frequently a mix of both
(Conway, 2005). Furthermore, victims of one-off traumas typically recall only three to
five ‘hotspots’ (vivid details) from their ordeal (Holmes et al., 2005) and relatively unde-
tailed memories are thus to be expected.
Returning to our dinner party example, a remembered event has a retention interval,
measured in months in this example, and as the retention interval lengthens memory
details become progressively inaccessible. Perhaps one can no longer remember what
one wore to the party or what other guests were wearing. However, and this is the key
point, in the memory everyone is clothed. Obviously this is an example, but the same
principle applies to all memories: the brain automatically and non-consciously fills in
details to frame the remembered fragments. Such details may or may not be accurate but
they will be plausible, for example, that one was clothed at the dinner party even though
Hohl and Conway
251
one cannot recall what one was...
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