Civil litigation and repressed memory syndrome: How does forgetting impact on child sexual abuse cases?

Abstract

This article focuses on civil child sexual assault cases and the complexities surrounding the contentious issues relating to repressed memory. It examines the concept of repression of memory from both an evidence and torts-based perspective. It argues that, even though there are dangers associated with repressed memories, this should not mean that the testimony is not admissible in civil trials. Rather, the court should make a determination as to admissibility in relation to prejudicial as opposed to probative considerations. Further, it argues that to make repressed memories inadmissible in tort cases would be unjust to genuine plaintiffs who have experienced repressed memories of childhood abuse. This argument is even more persuasive in the current litigation climate where the High Court of Australia is reportedly more defendant-friendly and in the light of recent tort reform.