Intoxication and Memory in Sexual Abuse Investigations

The complexity of any sexual abuse investigations can't be understated, and eventual results generally rest on who is deemed forensically credible.

To this day, the legal system still struggles with how these situations should be handled. It's becoming increasingly trickier with many in the US wanting to be rid of due process - willing to "believe all victims" without batting an eyelid. That outlook, of course, is entirely problematic for a never-ending list of reasons.

With sexual abuse allegations, the one thing that makes them even more of a tight-rope walk is when alcohol enters the equation. You need to look no further than our own political news when Judge Brett Kavanaugh faced damaging accusations from Christine Blasey Ford in 2018.

As a nation, we did get to see the case play out and how alcohol and impaired memory can impact the way these situations are handled. However, that's just one example—and it involved a prominent figure. Furthermore, the allegations were primarily used to prevent the judge from being sworn into the Supreme court.

What happens when this kind of scenario impacts everyday people, such as yourself?

For added context, many of the findings I'll be discussing come from a paper called "Remembering Disputed Sexual Encounters: A New Frontier for Witness Memory Research." (See Deborah Davis nad Elizabeth F. Loftus, 105 Journal of Criminal Law and Criminology (2015).)

The findings in the paper discuss the distortion of memory after sexual encounters where intoxication was involved. It assesses how alcohol can "both contribute to initial misunderstanding and promote specific distortions in memory over time."

One specific story is cited between "Helen" and "Jerry," where the former believed she was sexually assaulted and the latter claimed otherwise. The one thing that was agreed upon was that a sexual encounter did occur.

The two were exes who had maintained a fondness for one another. They reconnected at a party, drank quite a bit, went back to Jerry's place, and the incident took place.

This scenario is what is referred to as disputed sexual consent, and the results of the investigation rest upon the following issues:

• Whether Helen felt she was a voluntary participant in the encounter
• Given her behavior, what would a reasonable man conclude regarding Helen's consent despite her perceived voluntariness (or lack thereof)?
• The level of Helen's intoxication and if that impacted her ability to consent within reason.
• Would Helen's intoxication levels be apparent to Jerry?

Unfortunately, without much else to work with, investigators are stuck only with "memory" evidence.

A person under the influence of alcohol will be less likely to be able to recall memories accurately. Yes, someone might have the gist or general idea of what occurred. In fact, he or she may even associate strong emotions with what happened (or didn’t happen)—even though they're fuzzy about the precise details.

These circumstances often lead a person to believe one’s own false memories consistent with the gist of the scenario. The individual involved may base what they believe to be accurate on what they feel, versus the facts—what actually happened.

In the case mentioned above, the encounter occurred although Helen was seeing another man, whom she loved.

It’s possible that the emotion of being disloyal to her current boyfriend could have compelled Helen to feel she was taken advantage of Jerry. After all, in her mind, it might seem implausible for her to sleep with Jerry voluntarily, given her love for the other man.

The author of the paper argues that people memorize intoxicated behavior based on how they think they'd behave. Such a thought process becomes even more prevalent when the memories become murkier.

When they’ve consumed enough alcohol, people generally don't act the same when intoxicated as they do sober. So, in trying to remember interactions, sexual or not, they tend to rely on past behavior as a reference point to tell their story. This may veer them off the path of accurately retelling the account of the event.

One frustrating issue with disputed sexual encounters when alcohol is involved is that both parties are telling their perception of the truth.

Sadly, a lot of the time, there is a genuine disagreement regarding consent between the individuals involved. The nature and definition of consent can be ambiguous—thus making investigations more challenging.

The case becomes less about honesty and more about memories.

There are no winners in these instances. Both parties come out of the situation wounded, with the accuser feeling violated and the accused dealing with the consequences that come even when they're proven innocent.

In a legal system that heralds factual evidence, the results of investigations where both parties tell different truths will always be tough to reach. It’s your heavy task to ensure the result comes out in your favor, and we’ll be right there with you.