Australian prosecutors are revising guidelines for Eye Movement Desensitisation and Reprocessing (EMDR), after a peak professional body raised concerns about how the widely-used therapy was being treated within the legal system.
A Queensland Director of Public Prosecutions (DPP) spokesperson confirmed to The Citizen that provisions that previously grouped EMDR with hypnosis and regression therapy would be removed when revised prosecution guidelines were finalised later this year.
Clinicians have raised concerns that some survivors delay or avoid therapies such as EMDR due to uncertainty about how treatment may be viewed in legal proceedings, and whether it may impact their ability to get justice.
EMDR Association of Australia (EMDRAA) chair Anthony Hurst said the issue highlighted the need for closer collaboration between prosecutors, police and trauma specialists.
“We’ve seen cases where women have been told there’s an admissibility issue because of EMDR,” Hurst said.
Psychologist, EMDRAA Chair, and University of Melbourne lecturer Anthony Hurst. Image supplied.
“We don’t know how many people have been told this and it may be legally inaccurate information.”
Hurst said EMDRAA could help legal authorities better understand the therapy and the evidence surrounding it.
EMDR is a recommended evidence-based trauma treatment by the World Health Organisation and major Australian health bodies.
Patients briefly recall distressing memories while performing a dual-attention task, such as guided eye movements, which clinicians say reduces emotional distress.
Central to the most recent concerns is whether EMDR has been treated in some legal contexts as a therapy that could affect memory reliability, despite clinicians saying current evidence does not support that view.
While the revised guidelines will apply to future decisions to indict, the Queensland DPP did not indicate whether survivors whose cases were previously thrown out would be notified following the review.
The legal confusion stems partly from case law dating back to 1995, when EMDR was grouped with hypnosis and regression therapies amid concerns about recovered memories and suggestibility. At the time, research on memory effects was limited.
Dr Sarah Schubert, a clinical psychologist and co-editor of the Oxford Handbook of EMDR, said the historical classification did not reflect current evidence.
“There’s nothing about standard EMDR therapy processes that is suggestible in any way,” Schubert said.
“We never ask clients, ‘What did they do next?’ We just say, ‘What do you notice now?’
“We’re probably the most non-directive of all the evidence-based trauma treatments in terms of staying out of the way.”
Schubert said research over the past decades had found no replicated evidence that the therapy distorted memory accuracy or created false memories in clinical settings.
She said that, in the absence of any formal guidance from legal authorities, clinicians had learned through experience that EMDR treatment could become an issue in future proceedings and had acted accordingly.
“We always have conversations with clients about how EMDR may impact their legal case,” Schubert said.
“It can impact for the good, it can impact for the bad, but that’s sad that we have to do that.”
The Queensland DPP said future cases involving EMDR would be assessed “with reference to expert evidence”.
Hurst said EMDRAA was seeking engagement with public prosecutors across Australia and had contacted the Queensland and New South Wales DPPs, while already working collaboratively with the Victorian DPP on issues relating to expert evidence and current research.
“In an ideal sense, I would like all of the women and people who have had their cases dismissed on the grounds of EMDR therapy creating an admissibility issue to be contacted and notified that the law may not apply in that way anymore,” Hurst said.
A spokesperson for the Commonwealth Director of Public Prosecutions (CDPP) said decisions about whether to prosecute and assess evidence were made independently and on a case-by-case basis under Commonwealth policy.
An empty witness chair in a courtroom. Image: Luisa Bonazzoli.
The Attorney-General’s Department confirmed the CDPP was meeting its performance targets, including high compliance with prosecution policy and strong conviction outcomes.
A spokesperson for the department said the federal government was progressing reforms under the National Plan to End Violence Against Women and Children and through the Australian Law Reform Commission inquiry into justice responses to sexual violence.
While the inquiry did not specifically examine EMDR, it recommended greater trauma-informed training for justice sector workers, including education around trauma, memory and the behaviour of sexual violence complainants.
The spokesperson said the department welcomed engagement from stakeholders, including EMDRAA.
But practitioners remain concerned that delaying or avoiding therapy in order to satisfy opaque legal conventions may only exacerbate harm.
For children, Schubert said delaying treatment until the end of legal proceedings was often unrealistic.
“There’s no way ethically we can keep a child suffering, knowing that they can heal, for years,” she said.
“Two years in the life of a child will developmentally mean they won’t be learning, they won’t be socialising the way they should and could.
“No one should ever have to choose between justice and healing.”
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