The complainant in the sexual assault trial for five former Canadian world junior hockey players repeatedly said under cross-examination that her memory has been clouded by trauma from the alleged sexual assaults.
Known as E.M. because of a standard publication ban in such cases, she has alleged she was sexually assaulted by five players with the championship team in June 2018 in a London, Ont., hotel room.
Michael McLeod, Alex Formenton, Carter Hart, Dillon Dubé and Cal Foote have all pleaded not guilty at the jury trial in Superior Court in London, Ont. In a turn of events on Friday, the jury was discharged and proceedings are continuing before a judge alone.
Whether the alleged sexual acts on the night in question were consensual or amount to criminal acts will be determined by the judge, but the concept of how trauma may affect memory has loomed throughout the cross-examination.
For example, E.M. told a lawyer for one of the accused men: “I think it was the trauma of being in the room caused a complete split in my personality.”
CBC spoke to Canadian researchers on how, generally, trauma can impact individuals. None of the experts is involved in the Hockey Canada trial that began in late April.
Dr. Robert Maunder, a psychiatrist at Sinai Health in Toronto, studies how trauma can affect a witness’s testimony.
“During a traumatic event, you’re under a tremendous amount of stress, and the stress hormones affect the way that your brain actually records the memories,” Maunder said.
“In some cases, that makes the memories very intense, and detailed and rich, and then it can have exactly the opposite effect, where there are gaps in memories and inconsistencies.”
Maunder said people who have experienced trauma can seem inconsistent, less coherent or hard to understand while testifying in court — and they risk being viewed as unreliable witnesses.
Trauma can affect memory in a range of ways, he said.
Some people will recall things that have a personal relevance but mean little to others. Sometimes, they will repress upsetting memories, he added.
“Often there’s just a kind of lack of consistency. So as people go over retelling their stories, sometimes that makes them less emotional over time as they retell it. Sometimes details get filled in. Sometimes the retelling is traumatizing in itself and is overwhelming for people.”
Meg Ternes is a psychology professor at St. Mary’s University in Halifax. Ternes’s work focuses on police investigations, credibility assessment, and eyewitness memory and interviewing.
“It’s been really difficult for researchers to study the effects of trauma on memory,” she said.
In part, Ternes explained, you can’t really study it in a lab because it isn’t ethical to traumatize people for scientific study.
“So we’ve been studying people who’ve actually experienced traumatic incidents and looking at what their memory looks like,” she said.
“Trauma seems to cause memory to become kind of fragmented, which means that [an individual] might remember kind of disjointed bits and pieces of the event. They might not be in chronological order. And so the memory looks kind of scattered.”
People experiencing trauma may focus inward, Ternes said, and that may affect their recollection or perception of what is going on around them during the event.
“Some people actually dissociate during a traumatic event, and this is almost like separating themselves from reality. … this is sort of a way to cope with what’s happening to them. … this also has a negative impact on memory.”
E.M. grilled again at Hockey Canada trial as cross-examination wraps
Ternes said it isn’t surprising E.M. may have poor memory around some of the events she alleges happened in June 2018.
“I don’t think that that takes away from her credibility because in an event like this, you would expect somebody to have poor memory.”
Dr. Abraham Snaiderman is the director of Neuropsychiatry at Toronto Rehabilitation Institute, UHN, and an associate professor at the University of Toronto.
One of the sore points for defence lawyers cross-examining E.M. has been her tendency to use the word “feel” in her recollections and answers rather than give definitive specific answers.
Snaiderman, who has seen many clients who have experienced sexual assault, said that tendency isn’t uncommon.
“The vast majority will say the same thing: ‘I feel this is what happened,’ ‘I feel this is what I’m going through,'” he said.
“You have to remember that the brain and the mind are one. So what we feel is a way of colloquially saying, that’s what I am thinking,” he said. “When a victim says, ‘I feel this is what happened,’ I would believe it. I would say, ‘Yeah, this is what you’re feeling.’ It’s up to the defence to challenge that, but in a way that does not re-traumatize the complainant.”
Snaiderman said that when people who have experienced trauma are questioned in a trial or an interview with police, a high level of stress is put on the individual.
“There is the risk of re-traumatizing the person by asking questions that are necessary for the defence, but are very intrusive and can be very damaging,” he said. “To be fair, they need to be asked. These questions are necessary to test the reliability of the witness.”
