SJC jettisons ‘fresh complaint' rule for abuse cases
Mother, first to hear victim's claim, may testify
By Ariana Johnson
Massachusetts Lawyers Weekly
October 10, 2005

A mother may testify in court about her daughter's sex-abuse claim if the mother was the first recipient of the complaint, the Supreme Judicial Court has ruled in a landmark decision that does away with the so-called "fresh complaint" doctrine.
Under the fresh complaint doctrine, prosecutors were only permitted to introduce out-of-court statements "seasonably" made by the victim after the alleged sexual assault for the purpose of corroborating the victim's own testimony concerning the alleged assault.

But pursuant to the new rule announced by the SJC, "the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint."

The defendant in the case argued that the testimony of the victim's mother and a police detective went beyond the limits of the fresh complaint doctrine and violated his confrontation rights.

But the SJC disagreed, and concluded that the admission of the testimony was valid under then-existing evidentiary standards and under federal and state confrontation clauses.

The 47-page decision is Commonwealth v. King, Lawyers Weekly No. 10-158-05.

A major change

"This decision represents a victory for sexual-assault victims," declared Mary E. Lee, the prosecutor who handled the case for the commonwealth.

The decision balances a defendant's constitutional rights with the prejudices and biases that are often held against alleged victims of sexual assault, Lee said, adding that now a jury will decide whether a delay in an alleged victim's complaint is meaningful.

However, Lee also acknowledged that the commonwealth can no longer put into evidence the testimony of more than one witness, nor can it decide which witness should testify.

"In most circumstances we won't be able to put in the 'fresh witness' with the most details," she asserted.

Boston attorney Djuna E. Perkins, author of an amicus curiae brief submitted by Jane Doe Inc., a sexual assault and domestic violence victims' advocacy group, said that the decision has a "tremendous practical impact on the prosecution of many, many sexual-assault cases."

Perkins said that the amicus brief demanded a mandatory jury instruction that would instruct the jury on biases. She said that she was particularly pleased that the SJC included this jury instruction as part of its ruling.

Layla D'Emilia-Shepherd, senior policy analyst at Jane Doe, Inc., explained that victims of sexual assault respond in many different ways, and they often do not disclose the incident for many weeks, months or years.

They fear not being believed, feel ashamed or do not want to face privacy violations, D'Emilia-Shepherd said.

She also noted that while this case dealt with a child victim, the new rule will be helpful to adult rape victims as well.

Boston attorney Robert O. Berger, counsel for the defendant, said it is "astounding how frequently [fresh complaint witnesses] appear in sexual-assault cases." He said his experience has been that cases usually have more than one fresh complaint witness, and that he has been involved in cases that have had up to seven.
It is difficult to predict how this change will impact the prosecution and defense of sexual-assault cases because the change is so dramatic, Berger concluded.

Alleged sexual assault

At the time of the alleged assault, the victim, called "Alice" in the SJC opinion, was 4 years old.

Her mother and the defendant, who is Alice's biological father, were no longer in a relationship but had a visitation arrangement concerning Alice. Alice lived and slept at the defendant's apartment on every Monday and Tuesday.

One day in February 2002, Alice walked in on the defendant in the bathroom and he allegedly asked her to "lick or scratch" his penis because it was itchy. Alice said "okay." She then knelt or sat beside him and did as she was told.

According to Alice's mother, on Feb. 18, 2002, while in her apartment, Alice told her mother that the defendant had asked her to lick his penis.

Alice's mother telephoned her own mother for advice and then telephoned the police. The following day, Alice and her mother went to the district attorney's office where they spoke with Brockton Det. Erin Kerr about the incident.

The grand jury's indictments alleged that the offenses of assault and battery and rape occurred between June 2000 and Feb. 12, 2002, the period during which Alice periodically visited the defendant at his home.

A Superior Court judge allowed the defendant's motion in limine seeking a determination of Alice's competency. The judge examined Alice, then 6 years old, and found her competent.

A Dec. 3, 2004, trial of the defendant's case ended in mistrial. The following day a second jury was empanelled.

At this trial three witnesses testified for the commonwealth: Alice testified as the complainant, and her mother and Kerr testified as "fresh complaint witnesses."
To minimize the potential prejudicial impact of multiple iterations of Alice's complaint, the judge limited the mother's testimony to a few details of the complaint.
The judge instructed the jury at the time of Alice's mother's testimony about the fresh complaint doctrine, in particular stating that evidence of the complaint would be admitted "only to corroborate the alleged victim's in-court testimony and not to prove independently that the sexual assault occurred."

The judge gave similar instructions before the detective's testimony, and again in his final jury instructions.

At the close of the commonwealth's case, the defendant moved unsuccessfully for a required finding on so much of the indictment that charged rape of a child by force, claiming insufficient evidence of penetration. He renewed this motion at the close of all of the evidence, and again before sentencing.

The defendant challenged his convictions on five bases: (1) the rape indictment was void as there was no penetration; (2) there was insufficient evidence to support the rape conviction; (3) both the assault and battery and rape convictions were so closely related as to constitute one crime; (4) the judge erred in ruling that the defendant's prior conviction would have been admissible had he testified, and (5) the fresh complaint testimony of Alice's mother and Kerr exceeded the bounds of the fresh complaint doctrine and violated the defendant's right to confrontation.

The judge denied the motions. The defendant was found guilty of assault and battery and rape. The defendant appealed.

The SJC took the case on its own motion.

A complete picture

"First complaint testimony may be admitted for a limited purpose only, to assist the jury in determining whether to credit the complainant's testimony about the alleged sexual assault," stated Justice Judith A. Cowin, writing on behalf of the court.
She specified that "[f]irst complaint testimony is not relevant and therefore not admissible under the doctrine where neither the fact of the sexual assault nor the complainant's consent is at issue, as in cases where the identity of the assailant is the only contested issue."

The judge noted that victims of sexual assault respond to the crime in different ways, and that they often delay reporting the crime because of "shame, fear, or concern that they will not be believed."

She also acknowledged that research and scholarship of juror perceptions of rape complaints "suggests that damaging stereotypes persist."

As a result of this, "there is a continued need … to counterbalance or address inaccurate assumptions regarding stereotypes about delayed reporting of a sexual assault or about sexual assault victims in general," stated Cowin.

Cowin enumerated two major changes to the fresh complaint doctrine. First, a victim's delay in making a complaint is not a reason for excluding the evidence of that complaint, and that the timing of the complaint is only one factor the jury may consider when weighing the complainant's testimony.

Second, in the future, testimony of such a complaint may only be made by the first person told of the assault, she explained.

Cowin noted that the complainant may also testify to the circumstances surrounding the initial complaint, the details of the complaint, and why the complaint was made at that particular time.

She wrote: "The goal of this new first complaint doctrine is to give the jury as complete a picture as possible of how the accusation of sexual assault first arose. That complete picture will allow them to make a fairer and more accurate assessment of the validity of that accusation, based on specific information about the people involved rather than on outdated stereotypes and generalities."