Law and Psychology are two extremely fascinating subjects. However, under the Indian legal system, the two do not seem to cross paths as often as they should. Psychology, while being tricky, can also be an extremely effective tool in criminal trials in particular. It has to be put into use through extremely professional and credible individuals.

Early psychologists like Luigi Galvani and Paul Broca set out to establish that the human brain was mechanical in nature and worked like a machine. While Galvani used electricity to induce movement in a dismembered frog leg, Broca (a doctor by profession) embarked on a different experiment. Broca observed that many of his patients had a peculiar condition where they could perfectly understand what was asked of them but could not form comprehensible speech of their own.  Broca convinced a few such patients to pledge their brains for study after they were gone. He studied these brains and found out that each of these patients had damage to the same part of their brain, now known as ‘Broca’s area’, the part of the brain understood to be responsible for speech. The experiments conducted by the likes of Gulvani and Broca drew home the point that human brains, though complex, could be studied and specific parts of the brain were responsible for specific functions. Later, the rather well-known Sigmund Freud came in with his idea of Ego, Super Ego and ID. Keeping in view with the belief that the human brain could be studied, these psychologists kept grinding and came out with all of what we know today – the sympathetic mode of the brain, the parasympathetic mode, how the amygdala is responsible for perceiving danger, how the removal of corpus callosum effectively results in two brains, hippocampus and how it lays down your conscious memory, visual agnosia – where people can see things but cannot recognise them, the split brain phenomena, schizophrenia – the list is endless. Therefore, the human brain is perfectly capable of being studied and an expert at psychology should be able to give us fascinating and reliable insights into the minds of criminals, witnesses, alleged victims – thereby providing immense help and support in complex criminal trials. As to how such expert opinions are to be received would depend from case to case and jurisdiction to jurisdiction. A lot of thought is being put to this worldwide and rightly so.

Yet another interesting example of how tricky the brain can be is the example of ‘procedural memory’. Procedural memory is responsible for our skills. For example, being able to play a guitar. The procedural memory has been found to stick even if a person loses his memory. While the person may not remember a thing, give him a guitar, he is likely to start playing it perfectly well. One can find many more fascinating accounts in this regard.

Let us take another example in the seemingly unending and extremely fascinating tricks that the human mind can play and merge it with how it could cross paths with the law. Repressed memories also known as recovered memories have been seen to frequently exist in victims of extreme child abuse. The victims of such child abuse have been (at times) found to have no recollection of the abuse and the legal dilemma begins when such victims recover or claim to have recovered their memory often as late as 20-25 years after the alleged event. How potent do these instances of ‘recovered memory’ become when backed-up with corroborating evidence?

While this remains a highly contentious branch of psychology, its interplay with law remains at the heart of quite a few legal battles. The Courts in the United States seem to have dealt with this phenomenon to quite an extent and one case that came into spotlight was the murder of Catholic Sister, Cathy Cesnik in Baltimore, United States.

Cathy Cesnik’s was a teacher at Archbishop Keough High School, it is alleged that two of the priests, Fathers Joseph Maskell and E. Neil Magnus, were sexually abusing the girls at the school in addition to trafficking them to others. Cathy Cesnik went missing on November 7, 1969 and it was on January 3, 1970, that her body was found in a remote area of Lansdowne.

In 1995, Teresa Lancaster and Jean Wehner, former students at Keough claimed to have been sexually abused by Maskell and filed a lawsuit against Maskell, the school, the School Sisters of Notre Dame, the Archdiocese, and Bishop Keeler. Wehner claimed that she had had a conversation with Cathy Cesnik about what she was being made to endure and that Cesnik had told her that she would take care of it. This, according to her, was the reason Cesnik got killed. The trial court dismissed the action as time-barred by the statute of limitations. The plaintiffs appealed. A writ of certiorari was granted by the Court of Appeals of Maryland which upheld the lower court decision, ruling in part, “…that the mental process of repression of memories of past sexual abuse does not activate the discovery rule”. Wehner also claimed that Father Maskell took her to a site where she saw Cathy Cesnik’s body and that it was done to further intimidate her and make sure that she kept quiet.

The allegations made by the two ladies gained further credibility as scores of women started to come forward claiming they had undergone similar experiences with Father Maskell and E. Neil Magnus. There was a huge clamour in the United States to amend the limitation law and more than 20 States went on to codify different kinds of recovered memory laws. As a result of these changes, many lawsuits alleging child sexual abuse that occurred many years before were filed.

The law of limitation with regard to criminal cases in India is dealt with under Section 468 of the Criminal Procedure Code, 1973:

468. Bar to taking cognizance after lapse of the period of limitation.– (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3)  For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

There is clearly no impediment as far as the limitation aspect is concerned, even though the Courts are usually not as liberal as the afore-mentioned section may make one believe. The real impediment is the reluctance to rely on psychology and also the lack of experts in the field. Paying more attention in this regard will certainly do us no harm. It may only end up in a more robust investigation, it may only endup in bringing more perpetrators to book and could also be a mitigating factor while sentencing, where appropriate. While the top judiciary has been vocal on the use of technology and modern means to enable a better justice delivery system, the spotlight must also shine on the immense potential that psychology has to offer in the legal field.

* Partner, L&L Partners, New Delhi

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