Witness for the defense claims that memories can be contaminated

 

Harvey Weinstein, a Hollywood producer, began his trial on Jan. 6, 2020 in New York City. He is charged with two counts of predatory sexual assault, one count of rape in the first degree, one count of rape in the third degree and one count of a criminal sexual act in the first degree. In addition, Los Angles County District Attorney Jackie Lacey charged Weinstein with four counts of sexual assault. 

On Feb. 7, Elizabeth Loftus, Ph.D., testified for Weinstein’s defense team in his sexual assault trial. In her testimony, she discussed how memories can be distorted over time and are susceptible to suggestion. 

Loftus is a professor at UC Irvine and has testified in over 250 legal cases; although, by her own account, only four or five have been for the prosecution of the defendant. Loftus has also participated in several high-profile defense cases, including O.J. Simpson, Ted Bundy and the officers accused of physically assaulting Rodney King. 

Loftus’ expertise has been called into question. Although she studies the mental state of victims of recent trauma, she has never treated rape survivors. 

This was revealed by Manhattan Assistant District Attorney Joan Illuzzi, the lawyer for the prosecution. Illuzzi asked Loftus about her record during her cross-examination. 

“Is it true that you’re not a memory doctor? And is it true that you don’t treat victims of traumatic events?” Illuzzi said.

Loftus affirmed Illuzzi’s questions, according to USA Today.

“I don’t treat them. I may study them, but I don’t treat anyone,” Loftus said. 

In her testimony, Loftus told the jury that a witness’ memory could be tampered with after a traumatic event, when they are continually provided with biased or misleading information from a therapist during a session, the media or by law enforcement officers during questioning. 

“False memories can be planted in the minds of ordinary, otherwise healthy individuals,” Loftus said. “False memories, once created — either through misinformation or though these suggestive processes — can be experienced with a great deal of emotion, a great deal of confidence and a lot of detail, even though they’re false.” 

After being cross-examined, Loftus acknowledged that victims often remember the core details of a traumatic event, but said the peripheral details can suffer. 

This testimony could affect the case against Harvey Weinstein since much of the case hinges on the memory of his accusers. When cross-examined, many of these prosecution witnesses have misremembered the dates or events at which their alleged assaults took place. 

According to trauma expert Barbra Ziv, it is not unusual for sexual assault victims to forget or misremember these details. She emphasized this when she testified for the prosecution in court last month regarding rape myths. 

“If you are in a traumatic situation … you are not looking around the room seeing what people are wearing, you are not focusing on irrelevant data. It’s your job to preserve yourself in that moment, to focus on what is salient to that situation,” said Ziv. “The passage of time, unless there were drugs and alcohol or some other issue involved, does not impact memory of assault.”

This trial has been one of the major successes of the #MeToo movement started by Tarana Burke in 2017. She has continually sent her support to victims on Twitter throughout the course of the trial to emphasize her support. However, she has not responded publicly to the claims made by Loftus. 

The defense has repeatedly reiterated that two of the victims stayed in contact with Weinstein after their alleged assaults. However, one of these women, Jessica Mann, has spoken out about this apparent contradiction. 

Mann is an actress and has previously referred to Weinstein as a “pseudo father,” according to The New York Times. According to Mann, her relationship with Weinstein turned sour when he allegedly began to abuse her from 2013-2016.

“I know the history of my relationship with him,” Mann said, “I know it is complicated and different, but it does not change the fact that he raped me.”