Massachusetts Rape Conviction Based on Repressed Memory Testimony Upheld by Supreme Judicial Court

The criminal defense bar in Massachusetts has for over a year paid close attention to defrocked Catholic priest Paul Shanley’s appeal to the Massachusetts Supreme Judicial Court (SJC), of his 2005 rape conviction. The SJC’s decision is now in, and it isn’t good for Shanley, or for many Massachusetts rape defense lawyers.

Shanley, one of the more well-known of several catholic priests that surfaced as part of the catholic clergy sex abuse scandal that erupted in 2002 in Boston, was convicted in February of 2005 on two counts of rape of a child under the age of14, and of indecent assault and battery of a child under 14 (those charges are subsidiary to the rape charges.) Shanley appealed his conviction all the way to the SJC, advancing primarily one legal argument: That the Superior Court judge who allowed expert testimony on the subject of “repressed memory syndrome,” did so erroneously, and thus that his conviction should be voided. For those of my readers that may not immediately recall, “repressed memory syndrome,” (clinically referred to as “dissociative amnesia,”) is a legal theory that developed in largely the past ten years. In sum, it argues that a person who suffers a psychological trauma, may unconscionably repress, or “forget” the memory of that incident, until a ‘triggering event’ stimulates a recovery of the memories.

This prosecutorial theory is important, because it allows prosecutors to ‘get around’ statute of limitations problems, which would otherwise prohibit the state from prosecuting certain crimes. You see, if an alleged victim to a crime does not come forward to make a complaint to police authorities and therefore allow the Commonwealth to file charges against the defendant, within the time period required by that statute, then the prosecution is statutorily barred. In this case, Shanley’s alleged victim came forward in 2002, when the clergy sex abuse scandal broke wide open in the media. The victim claimed that only then – in 2002 – did he suddenly remember being allegedly raped by Shanley when he was an altar boy several years earlier – because, he claimed, the memory of the alleged rapes was triggered by exposure to media coverage of Shanley’s arrest on charges of raping and abusing other boys. The timing of an alleged victim’s complaint to authorities in both this case, and all similar cases, is critical: If the alleged victim waits too long (i.e., beyond the statute of limitations period) to come forward to authorities and formally commence prosecution of a defendant, that person forever loses the ability to have that person prosecuted. That rule of law was developed for very good (and specific) reasons. It prevents people from being forever exposed to prosecution for a serious crime, if an alleged victim does not choose to come forward to authorities within a lengthy – quite lengthy- period of time.

However, under Massachusetts law, the “tolling period” – the date when the statute begins to run – is the date that the alleged victim first became aware of the alleged crime – not the date that the alleged crime was committed. When these types of statutes were first written – not that long ago – they revolved around logic: If someone were a victim of a serious crime, and chose for many years to never file charges against the alleged defendant – then it was legislatively “presumed” that something must “be missing” in the victim’s evidence or the victim’s story – and that in the interests of justice, the door to prosecution against the defendant should at some point in the future be closed. In my view as a Boston Massachusetts sex offense lawyer, that’s a fairly balanced approach. But science, together with sometimes questionable psychological theories, it seems, never ceases its advance.

“Repressed memory syndrome,” which was developed by prosecutors and psychiatrists, argues that if an alleged victim unconsciously repressed his or her memory of the alleged crime for ‘X’ number of years after the alleged crime, and under normal circumstances the defendant could not be prosecuted for that crime because the statue of limitations had run, the prosecution should still be allowed if the time between the alleged victim’s recovered memory and the time of his complaint, is not greater that the time recited by the statue of limitations. Here, the victim testified at Shanley’s 2005 trial that more than 20 years had passed before he remembered what had happened to him. Normally, this would have barred his complaint from being prosecuted, as this period exceeds the statute of limitations for this crime. But, he testified that his memory came back in 2002 after being exposed to widespread media coverage about Shanley and the church sex abuse scandal. And it was the admission of that testimony – and particularly the trial judge’s admission of psychological expert testimony on the theory of dissociative amnesia – which allowed the jury to convict Shanley.

I’ll discuss the precise legal objections advanced by Shanley’s appeal, and the SJC’s reasoning, in my next post.