Witness statement file beside clinical notes for an EMDRNews article on courts and witness memory

EMDR, Australian Courts, and Witness Memory: A Legal Question Comes Back Into Focus

July 3, 2026

Dr Katie Bird lived for years with intrusive memories, flashbacks, and nightmares after the sexual abuse she says she experienced as a teenager. As a final-year medical student she began eye movement desensitization and reprocessing (EMDR) therapy, and it worked. She has said the treatment gave her back her life, and that she would not have felt able to approach authorities without it. When she did come forward, ABC News reported in March, the Commonwealth Director of Public Prosecutions sent her a letter saying the case would not proceed. The letter cited her earlier EMDR treatment.

Her case was not isolated. In a July 1 follow-up, ABC reported that other Australian victim-survivors of alleged sexual abuse had been told EMDR created problems for their evidence, and that some people were delaying treatment because of legal concerns. Clinicians described the same pattern to The Citizen, a publication of the University of Melbourne’s Centre for Advancing Journalism, in June: some survivors delay or avoid EMDR because they do not know how a court will view it.

The questions underneath these stories reach well beyond Australia. EMDR clients are also complainants, witnesses, plaintiffs, custody litigants, compensation claimants, and immigration applicants. Wherever treatment and a legal process overlap, the same issues surface: what therapy changes about a memory, and what a legal system should make of that.

EMDR clinicians have long handled the overlap with a familiar piece of consulting-room advice: if a client has an active or possible legal matter, make informed consent specific and, where appropriate, encourage coordination with the client’s attorney or legal representative before treatment decisions intersect with evidence, records, timing, or disclosure. EMDR is designed to change how a traumatic memory is experienced. After successful treatment, a memory may be less vivid, less overwhelming, and easier to discuss, and any treatment that changes a memory can draw courtroom questions about consistency and influence. Dr Sarah Schubert, a clinical psychologist and co-editor of the Oxford Handbook of EMDR, described that standing practice to The Citizen. “We always have conversations with clients about how EMDR may impact their legal case,” she said. “It can impact for the good, it can impact for the bad, but that’s sad that we have to do that.”

The Australian reporting exposed something narrower and older than informed consent: prosecution guidance that classifies EMDR as a form of hypnosis. New South Wales prosecution guidelines state that evidence obtained by either hypnosis or EMDR cannot be used unless approved by the Director or a Deputy Director of Public Prosecutions. ABC reported that Queensland’s guidance referred to EMDR as a form of hypnosis or regression therapy. The Citizen traced the grouping to case law from 1995, when courts were contending with recovered-memory claims and suggestibility concerns and research on EMDR and memory was thin.

That classification is now being revised. A Queensland Director of Public Prosecutions spokesperson confirmed to The Citizen that the provisions grouping EMDR with hypnosis and regression therapy will be removed when revised prosecution guidelines are finalized later this year, and that future cases involving EMDR will be assessed “with reference to expert evidence.” The EMDR Association of Australia has contacted the Queensland and New South Wales DPPs and is working with the Victorian DPP on expert evidence and current research. Its chair, Anthony Hurst, told The Citizen the association has “seen cases where women have been told there’s an admissibility issue because of EMDR,” and that he wants people whose cases were dismissed on those grounds to be notified that the law may no longer apply that way.

The clinical literature never put EMDR where the 1995 grouping put it. EMDR is a structured, trauma-focused psychotherapy. The client briefly attends to a distressing memory while engaged in a dual-attention task, such as clinician-guided eye movements, and remains oriented to the present throughout. The aim is to reduce the distress a memory carries, not to retrieve hidden material. To a legal reader EMDR can resemble hypnosis, because attention is guided and the eye movements are visible. It is not hypnotic age regression, and the clinician does not lead the account. “We never ask clients, ‘What did they do next?’ We just say, ‘What do you notice now?'” Schubert said. “We’re probably the most non-directive of all the evidence-based trauma treatments in terms of staying out of the way.” Electroencephalography does not support a simple equation between EMDR and hypnosis either. EEG studies of bilateral stimulation show measurable activity during a waking memory task, while hypnosis research has not established a single EEG signature that EMDR could simply be matched against.

The World Health Organization says EMDR should be considered for PTSD, alongside trauma-focused CBT; for adults, the same WHO recommendation also includes stress management. The U.S. Departments of Veterans Affairs and Defense strongly recommend manualized trauma-focused psychotherapies, including EMDR, cognitive processing therapy, and prolonged exposure; the same guideline lists hypnosis among mind-body interventions with insufficient evidence to recommend for or against. In England and Wales, the Crown Prosecution Service’s guidance on pre-trial therapy names hypnotherapy and hypnotic age regression as a specific caution area. It does not name EMDR there.

The memory research supports more precision than the old grouping allowed. Trauma-focused treatment changes how a memory is experienced: its vividness, its emotional intensity, how readily a person can talk about it. The memory literature calls for nuance rather than categorical exclusion: standard EMDR has not been shown to clearly increase suggestibility, while suggestive techniques, recovered-memory assumptions, poor documentation, and blurred therapeutic and investigative roles remain the forensic risks to avoid. Schubert told The Citizen that decades of research have found no replicated evidence that the therapy distorts memory accuracy or creates false memories in clinical settings. Richard Bryant, professor of psychology at the University of New South Wales, told ABC the scientific evidence does not support treating memories affected by EMDR as categorically inadmissible.

A 2026 case-series in Frontiers in Psychology points the same way. It examined five final decisions of the Italian Supreme Court in criminal cases involving minors who had received EMDR, and found the court rejecting categorical assumptions that EMDR reduced testimonial reliability, looking instead for concrete, case-specific evidence of memory distortion. Where the judges criticized clinicians, the findings concerned documentation gaps and blurred boundaries between therapeutic and investigative roles, not the therapy itself.

None of the emerging guidance asks survivors to wait out their cases untreated. The United Kingdom’s National Institute for Health and Care Excellence says PTSD treatment should not be delayed or withheld solely because of court proceedings or compensation applications. The Crown Prosecution Service’s therapist note says there is no requirement to delay therapy during a police investigation or prosecution, and that the victim’s health and wellbeing should determine whether and when therapy occurs. Schubert said delaying children’s treatment until proceedings end is 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.”

For clinicians, the working standard looks like ordinary careful practice. Ask early whether a client has an active or possible legal matter: a police report, a prosecution, a custody dispute, a compensation or immigration claim. Make informed consent specific: records can be requested or subpoenaed, and treatment can change how a memory is experienced and discussed. Document the treatment frame and the client’s presentation. Keep the clinical role clean; therapy is not fact-finding, and leading questions, recovered-memory certainty, and investigative interviewing have no place in it. When a legal process is live, encourage the client to talk with their attorney or legal representative about timing and disclosure. What the law makes of therapy varies sharply by jurisdiction. What clinicians control is the clarity of their own work.

For three decades, the question in some prosecution guidance was what kind of therapy a witness had received. Queensland’s DPP has said revised guidelines will move future cases toward assessment with reference to expert evidence once finalized. New South Wales, for now, still keeps a published guideline trigger for evidence obtained by hypnosis or EMDR. “No one should ever have to choose between justice and healing,” Schubert said.

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