Recovered memory theory derided as "junk science"

Defence notes no convictions where assaults recently recalled

Toronto Star/May 10, 1999
By Nick Pron

The theory of recovered memory in sexual assault cases is "junk science" that has no place in the courtroom, says the lawyer who defended John Paul Roby.

"It belongs on the shelf right up there with witchcraft, sorcery and fortune-telling," says Steven Skurka.

"It's junk science, and one day we'll look at it the way we look at the Flat Earth Society."

Prosecutors didn't get convictions on any of the six charges against Roby involving three women and three men, who said they only recently remembered the alleged assaults after undergoing therapy.

Roby was found not guilty on five of those counts, ranging from indecent assault to the more serious charge of sexual assault. The jurors failed to reach a verdict on the sixth charge.

Not long after Roby's arrest over two years ago, Skurka said he called a meeting of his defence team and laid out what came to be known as "The Strategy" in defending the 56-year-old Montreal native.

"Mr. Roby was being demonized as the monster of Maple Leaf Gardens," said Skurka. "And I thought that was an injustice."

He built a defence on what he saw as the "true portrayal" of his client - "a pathetic man involved in acts of masturbation and fleeting touching."

The 42-year-old lawyer said he noticed a number of inconsistencies in statements from alleged victims.

One so-called victim never told anyone of any acts of oral sex until he filed a multi-million dollar lawsuit against the Gardens.

What Skurka and his defence team came up with was a plan to contest only 21 of the most serious charges against Roby, in effect conceding the rest.

Skurka then telegraphed his defence, laying it out to jurors in an opening address, winning the right to do so in a pretrial motion argued by lawyers Lesley Pringle, Graham Clark and Elsa Renzella.

Skurka reasoned that he wanted jurors to know there could be another side to the story, one they weren't going to hear when the prosecution team of crown attorneys Jim Hughes and Susan Orlando brought their 42 alleged victims to court.

The jurors deliberated for 10 days before tossing out most of the serious charges against Roby that Skurka and his team had isolated.

And rather than arguing against the court hearing theories of repressed memory, Skurka's strategy was to let it be brought into evidence, believing the concept would be discredited through inconsistent testimony.

"Recovered memory has no place in the courtroom," said lawyer Maureen Forestell, part of the defence team. "Just like the unreliability of jailhouse informants, it's very dangerous for any judge or jury to rely on recovered memory. It could lead to a miscarriage of justice."

She said the fact the 11 jurors - a 12th was excused for health reasons - tossed out all six recovered memory charges was a "sign that juries are rejecting the concept."

Memory researchers say there is no scientific evidence for the concept, arguing other forces are at work, such as suggestive questioning by therapists.