Health & Medicine
Restoring the lives of Australians with PTSD
Why do Australian courts still distrust a proven trauma therapy?
A court ruling from the 1990s still influences how some abuse cases are prosecuted in Australia, leaving an evidence-based trauma therapy mired in outdated legal doubt
Published 9 April 2026
When trauma survivor Dr Katie Bird reported alleged abuse, she hoped the justice system would finally examine what had happened to her.
Instead, she received a letter from the Commonwealth Director of Public Prosecutions stating the case would not proceed, citing the fact she’d previously undergone eye movement desensitisation and reprocessing (EMDR) therapy, a widely used treatment following traumatic experiences.
Katie’s experience highlights a little-known tension between trauma treatment and the legal system: in some circumstances, receiving therapy can complicate whether a criminal case proceeds.
When Australian courts first encountered EMDR in the 1990s, the therapy was unfamiliar and poorly understood. Judges worried it might affect the reliability of witness memory.
Sadly, those early concerns still influence legal thinking today.
But almost four decades later, the scientific evidence about EMDR looks very different.
How EMDR came to Australia
One of the first Australians to encounter EMDR therapy was Don Heggie, a decorated World War II bomber pilot.
Heggie lived with nightmares, flashbacks and sudden bursts of anger following years spent as a prisoner of war.
After trying other therapies for decades without success, he travelled to California in the late 1980s to receive a new treatment called EMDR, developed by psychologist Francine Shapiro.
The results were immediate. After six sessions, Heggie’s PTSD-related nightmares permanently ceased.
Grateful for the treatment, he funded one clinician from each Australian state to travel to the United States to train in EMDR, on the condition they return and share the approach with others.
That decision resulted in a rapid uptake of EMDR therapy to Australia.
What is EMDR therapy?
Today, EMDR is not a novel therapy.
In fact, it is recommended for post-traumatic stress disorder in all national and international treatment guidelines, including those issued by the NHMRC and the Australian Psychological Society, along with the UK’s National Institute for Health and Care Excellence and the US Department of Veterans Affairs.
There is also evidence to support using EMDR for a range of other mental health conditions including depression and anxiety disorders.
During EMDR therapy a person briefly recalls aspects of a distressing experience while engaging in a dual-attention task – historically a visual tracking task, a tapping task or even mental arithmetic.
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Importantly, the therapist does not prompt the person to think of any particular aspect of the memory once it is activated. Instead, the client is supported to simply notice whatever comes to mind – there is no suggestion.
It is this aspect that makes EMDR unique compared to other exposure-based PTSD treatments.
Research suggests the effect of EMDR is related to the brain’s working-memory system, which has a limited capacity.
Holding a memory in mind while performing another task, leads to a competition for resources, and in this competition the memory reduces in vividness and emotional intensity.
In simple terms, EMDR changes how memories are experienced, not what memories contain.
All trauma-focused therapies reduce intrusive recollections and decrease emotional distress, which then affects how memories are experienced.
However, reducing how memories are experienced is not the same as altering factual memory. Research shows just that – EMDR reduces the emotional salience of memories without altering their factual content.
Laboratory studies indicate that eye movement tasks in isolation can decrease the vividness and distress without impacting voluntary memory recall. The literature has not reliably demonstrated any other relationship to date.
Put simply, the evidence does not support the idea that EMDR therapy poses a unique threat to memory reliability.
Where the legal concern came from
The modern legal uncertainty around EMDR in Australia traces back to R v Tillott (1995).
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The court considered whether evidence should be admitted after a complainant had undergone EMDR therapy, with the defence arguing that EMDR and hypnosis should be considered the same.
The judge correctly observed that EMDR and hypnosis were “probably different”.
However, they mandated guidelines that are used for forensic hypnosis – a controversial practice of authorities ‘retrieving’ memories from victims of crime – to be applied to EMDR therapy too.
These guidelines, buried within case law, were never intended to guide the use of psychotherapy and were applied without consultation with EMDR researchers or associations.
In contrast, hypnosis bodies were appropriately involved in developing the practices for hypnosis.
These guidelines call for invasive and irregular procedures, like recording therapy sessions – unsurprisingly concerning for some clients first seeking treatment following trauma.
As a result of the hypnosis comparison, the guidelines suggest a ‘reverse onus’ of proof, meaning any client’s memory after EMDR therapy is assumed distorted unless it can be shown otherwise.
The same does not apply to any other therapy.
For many survivors, therapy is precisely what makes reporting possible. Dr Katie Bird has said she would not have felt able to approach authorities without first receiving treatment, highlighting the tension between therapeutic recovery and evidentiary expectations.
Courts have taken different approaches
Interestingly, not all courts have treated EMDR as inherently problematic and internationally, the same scepticism is not evident.
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Even within the Australian legal system, the guidelines have not always been treated as strict requirements.
In Tasmania, Sparkes v The Queen, indicated they were not mandatory. In Western Australia, R v Tanner, suggested the guidelines were aspirational but emphasised the existing safeguards of the regular justice system – like cross-examination, expert evidence and judicial directions – were sufficient.
Why it matters
In many abuse and assault prosecutions a survivor’s testimony is often the central evidence.
If prosecutors believe therapy may create additional legal challenges, they may be less likely to proceed, as was the result for Katie.
Courts are right to scrutinise evidence. But the scientific understanding of EMDR has evolved considerably since the therapy first appeared in courtrooms in the 1990s.
When legal concerns persist long after the science has moved on, the consequences extend beyond the courtroom.
In addition to possible resistance to seeking help, allegations may never be tested at trial. Survivors who seek therapy to recover from traumatic events may be disadvantaged. Courts may continue to worry about a risk the scientific evidence does not support.
Don Heggie’s experience helped embed EMDR therapy in Australia.
Nearly four decades later, we hope Katie’s experience helps embed the science of EMDR therapy in the legal system.