Professional Documents
Culture Documents
COMMENT
Scott D. Carman*
Abstract: In Commonwealth v. King, the Massachusetts Supreme Judicial
Court (SJC) rendered a groundbreaking decision. The decision coined the
First Complaint Doctrine which is an evidentiary rule that only has
application in rape cases. The First Complaint Doctrine permits the
prosecution to call the first person that a rape victim complained to as a
witness. This witness will testify to the details of the victims complaint and
the surrounding circumstances. The SJCs creation of the First Complaint
Doctrine was an unprecedented departure from the universally followed
Fresh Complaint Rule. The Fresh Complaint Rule provides that the
prosecution may call people that the victim complained to as witnesses so
long as the victims complaints were sufficiently prompt. This Comment
explains and compares both evidentiary rules at length. This Comment also
unearths the pitfalls of the First Complaint Doctrine and forecasts
difficulties that it may pose to prosecutors and the trial courts. Finally, this
Comment proposes modifications to the First Complaint Doctrine to
remedy its infirmities.
* Candidate for Juris Doctor, New England School of Law (2008); B.A.,
Political Science, University of Maine (2003).
631
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INTRODUCTION
Rape victims suffer irreparable emotional trauma after they
experience the reprehensible crime of rape.1 As a result of such trauma, the
rape victims responses are likely to vary by wide margins.2 A typical rape
victim may refrain from ever notifying the authorities about what she
suffered,3 or complain for the first time in an incompetent, incomplete
fashion.4 When rape victims disclose the attack to someone, the fresh
complaint rule has traditionally stood as the gatekeeper to the admissibility
of these statements.5 Generally, the fresh complaint rule permits the
prosecution to admit the rape victims complaint into evidence so long as
the complaint was made in close time proximity to the rape itself.6
In Commonwealth v. King,7 the Massachusetts Supreme Judicial
Court (SJC) abandoned the widely followed fresh complaint rule.8 The
SJC eliminated the fresh complaint rule in Massachusetts by coining the
First Complaint Doctrine (Doctrine).9 The most significant differences
between the Doctrine and the fresh complaint rule are that admissibility of
the complaints will no longer be conditioned upon a finding that the
complaint was reasonably prompt10 and that the prosecution will be
restricted to introducing only the victims first complaint.11
The Doctrine is advantageous to prosecutors because rape victims
complaints will no longer be inadmissible solely because they were not
made at a time close enough to the incident.12 However, application of the
Doctrine may pose potential problems to prosecutors mainly because it is
not uncommon for a rape victims first complaint to be less reliable than
their subsequent complaints.13 This Comment is intended to explain how
1. See Diane M. Daane, Victim Response to Sexual Assault, in SEXUAL ASSAULT: THE
VICTIMS, THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM 77, 81 (Frances P.
Reddington & Betsy Wright Kreisal eds., 2005).
2. See discussion infra Part III.A-D.
3. See infra Part III.A.
4. See infra Part III.C.
5. See John Leubsdorf, Presuppositions of Evidence Law, 91 IOWA L. REV. 1209, 1249
n.215 (2006).
6. See Michelle J. Anderson, The Legacy of the Prompt Complaint Requirement,
Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84
B.U. L. REV. 945, 965 (2004).
7. 834 N.E.2d 1175 (Mass. 2005).
8. See id. at 1181.
9. See id.
10. Id.
11. Id. at 1197.
12. See id. at 1181.
13. See discussion infra Parts III.C-D, IV.A, IV.D.
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Doctrine poses to the prosecution, but not the defense, will be discussed. See infra Part IV.
29. See infra Part IV.A.
30. See infra Part IV.B.
31. See infra Part IV.C.
32. See infra Part IV.D.
33. See infra Part IV.E.
34. See infra Part IV.F.
35. See infra Part IV.G.
36. See Lisa J. Steele, Commonwealth v. King: Massachusetts Charts a New Course in
Sexual Assault Cases, BOSTON B.J., May-June 2006, at 10.
37. See People v. Brown, 883 P.2d 949, 953 (Cal. 1994); 4 JOHN HENRY WIGMORE,
EVIDENCE IN TRIALS AT COMMON LAW 1135, at 301 (James H. Chadbourn ed., 1972).
38. State v. Hill, 578 A.2d 370, 374 (N.J. 1990).
39. Commonwealth v. King, 834 N.E.2d 1175, 1188 (Mass. 2005).
40. See Steele, supra note 36.
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that the victim was under the stress of a startling occurrence when the
statement was made.51
Adoption of the fresh complaint rule was justified to combat the
dominant belief that a normal woman would complain after having been
raped.52 Evidence of a fresh complaint is relevant because jurors may
question an allegation that [a sexual] assault occurred in absence of such
evidence.53 If evidence of a fresh complaint is absent from the trial record
the jury might naturally assume that none was made.54 The witnesss
testimony of the victims out-of-court complaint is intended to rebut an
inference that the victim had fabricated the story because such inferences
naturally arise if the evidence suggests that the victim remained silent after
the attack.55 By allowing the prosecution to admit the victims complaint,
defense counsel is prevented from arguing to the jury that they should
assume that the victim did not complain.56 The fresh complaint rule is
primarily utilized to diminish the skepticism that jurors harbor about
victims credibility.57 The narrow purpose of the rule was to negate any
inferences that the victim could not be believed due to the victims failure
to tell anyone that she had been raped.58 Finally, if there is not evidence of
a fresh complaint, the prosecution may explain that the victims silence was
51. Colin Miller, A Shock to the System: Analyzing the Conflict Among Courts over
Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in
Rape and Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49, 74 (2005).
52. State v. Hill, 578 A.2d 370, 375 (N.J. 1990). [The] rule permits the admission of an
alleged rape victims fresh complaint on the theory that jurors might otherwise disbelieve
her testimony because of an erroneous belief that rape victims usually complain.
Leubsdorf, supra note 5.
53. Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. Ct. 2005); see also
WIGMORE, supra note 37, 1135, at 298.
54. WIGMORE, supra note 37, 1135, at 298.
55. See Michael H. Graham, The Cry of Rape: The Prompt Complaint Doctrine and the
Federal Rules of Evidence, 19 WILLAMETTE L. REV. 489, 492-93 (1983). In cases in which
a woman does . . . confide in someone that she has been raped, the fresh-complaint rule
serves to neutralize the sexist expectations of some jurors that the woman should have
complained after having been raped. Hill, 578 A.2d at 377.
56. See WIGMORE, supra note 37, 1135, at 298-99. Defense counsel would typically
point out the victims lack of complaining at trial and argue that the jury should interpret it
as a self-contradiction on behalf of the victim. See id. at 298.
57. See Stanchi, supra note 45, at 465. [F]resh complaint evidence plays an especially
important role in cases where the complainants credibility is . . . susceptible to unfair
skepticism . . . . Id.; see also Deborah W. Denno, Why the Model Penal Codes Sexual
Offense Provisions Should Be Pulled and Replaced, 1 OHIO ST. J. CRIM. L. 207, 214 (2003).
[R]easons for the prompt complaint rule hark back to a time when there was a strong
presumption that a substantial number of female complainants would invent their
charges . . . . Id.
58. Hill, 578 A.2d at 375.
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69. See People v. Brown, 883 P.2d 949, 955 (Cal. 1994); State v. Hill, 578 A.2d 370,
377 (N.J. 1990);Woodard v. Commonwealth, 448 S.E.2d 328, 330 (Va. Ct. App. 1994).
The present rule . . . [is that] to qualify as fresh complaint, the victims statements . . . must
have been made within a reasonable time after the alleged assault and must have been
spontaneous and voluntary. Id. But see State v. Troupe, 677 A.2d 917, 925 (Conn. 1996)
(explaining that a complaint does not have to be promptly made, but the timing of the
complaint is to be considered by the fact finder in evaluating the weight of the testimony).
70. Stanchi, supra note 45; see also People v. Damen, 193 N.E.2d 25, 30 (Ill. 1963).
[I]t is entirely natural that the victim of forcible rape would have spoken out regarding it,
and the fact that she did not do so would in effect be evidence of the fact that nothing
violent had occurred. Id.
71. Commonwealth v. King, 834 N.E.2d 1175, 1188 (Mass. 2005).
72. Brown, 883 P.2d at 955.
73. Stanchi, supra note 45, at 443.
74. Id. at 452.
75. Id. at 452 n.57 (quoting State v. Twyford, 186 N.W.2d 545, 548 (S.D. 1971)). The
rule requires that the complaint should be made within a reasonable time. The surrounding
circumstances should be taken into consideration in determining what would be a reasonable
time in any particular case. Twyford, 186 N.W.2d at 548 (quoting State v. Fritz, 184 N.W.
235, 235 (S.D. 1921)); see also Gaerian v. State, 860 A.2d 396, 403 (Md. Ct. Spec. App.
2004). [P]romptness is a flexible concept, tied to the circumstances of the particular
case . . . . Id.; State v. Kendricks, 891 S.W.2d 597, 606 (Tenn. 1994). Whether a statement
is a fresh complaint is a determination to be made on a case by case basis. Id.
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76. See, e.g., People v. Vaughn, 255 N.W.2d 677, 678-80 (Mich. Ct. App. 1977)
(excluding complaint that victim made to city prosecutor because it was made the day after
the attack).
77. Stanchi, supra note 45, at 452.
78. See State v. Bethune, 578 A.2d 364, 367 (N.J. 1990) (explaining that courts allow
children additional time to make a fresh complaint because children are more vulnerable to
being cajoled and coerced into remaining silent by their abusers.); State v. Livingston, 907
S.W.2d 392, 394 (Tenn. 1995) (eliminating the fresh complaint rule for children under
thirteen years old).
79. Fitzgerald v. United States, 443 A.2d 1295, 1305 (D.C. Cir. 1982) (admitting twelve
year-old victims complaint to a friend that was made one day after the attack because the
victim was in fear of retaliation because the defendant told the victim that he would climb
through her window and kill her, [if she told anyone]).State v. Evans, No. 02C01-9306-
CC-00124, 1994 WL 59452, at *4 (Tenn. Crim. App. Mar. 1, 1994) (admitting nine year-old
victims delayed complaint because the defendant had said he would hurt her if he had to
go to jail).
80. See State v. Brigandi, 442 A.2d 927, 931-32 (Conn. 1982); State v. Werner, 489 A.2d
1119, 1126 (Md. 1985); State v. Artez, 176 N.W.2d 81, 82 (Minn. 1970) (explaining that the
failure of a minor to complain of sexual assault is of critical significance in a prosecution
for rape); See State v. P.H., 803 A.2d 661, 668 (N.J. Super. Ct. App. Div. 2002); Herron v.
Commonwealth, 157 S.E.2d 195, 198 (Va. 1967) (explaining that a failure to complain can
be used to discredit childs testimony).
81. See Commonwealth v. Nurse, 734 N.E.2d 336, 338 (Mass. App. Ct. 2000)
(concluding that complaint made eighty-three days after the alleged assault was not
reasonably prompt and should not have been admitted at trial as a fresh complaint).State
v. Brown, 871 S.W.2d 492, 494 (Tenn. Crim. App. 1993) (excluding the fresh complaint
evidence because the thirteen-year old victim had not complained until eleven months after
the alleged assault and there was no satisfactory explanation for the . . . delay.).
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exceptions allow the evidence to be offered to prove the truth of the matter
asserted.92
a startling event without any time for reflective thought would fit the excited utterance
exception); Hill, 578 A.2d at 378 (explaining that a complaint so closely related to the
alleged assault would fit the res gestae exception).
92. FED. R. EVID. 801(c).
93. See supra text accompanying notes 52-58.
94. Stanchi, supra note 45, at 441.
95. State v. P.H., 840 A.2d 808, 817 (N.J. 2004) (explaining that the rule encourages
jurors to conclude that only rape victims whom promptly reported the assault are truthful).
96. Id.
97. See Stanchi, supra note 45, at 460.
98. People v. Brown, 883 P.2d 949, 956 (Cal. 1994).
99. See Stanchi, supra note 45, at 459 (stating that studies show between twelve and
twenty-five percent of rape victims delay reporting to the authorities).
100. Michelle J. Anderson, All-American Rape, 79 ST. JOHNS L. REV. 625, 627 (2005);
DuBois, supra note 49, at 1106.
101. Ilene Seidman & Susan Vickers, The Second Wave: An Agenda for the Next Thirty
Years of Rape Law Reform, 38 SUFFOLK U. L. REV. 467, 472 (2005).
102. DuBois, supra note 49, at 1106.
103. See Commonwealth v. King, 834 N.E.2d 1175, 1197 (Mass. 2005).
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reporting because they feel that they invited the assault, seduced the
perpetrator, or complied with the assault.115
Since the fresh complaint rule is an exception to the general bar
against hearsay,116 the rule suggests that rape victims are inherently
unbelievable and . . . need [this] special rule to raise their
credibility . . . .117 The rule may have the adverse effect of perpetuating the
negative stereotype that rape victims are naturally untrustworthy.118 Such a
result is unacceptable because the fresh complaint rule is justified, in part,
to counteract unfair credibility assessments that rape victims face.119
Despite the recent criticism of the fresh complaint rule, every state
with the exception of California maintains some version of the fresh
complaint rule.120 Courts believe that the fresh complaint rule remains
necessary for many similar reasons.121 For instance, the Supreme Court of
New Jersey opined that the fresh complaint rule remains necessary because
the judicial system cannot rectify all juror biases.122 Evidence of the fresh
complaint can neutralize the sexist expectations of some jurors that the
woman should have complained after having been raped.123 The SJC
explained that there exists a continuing need for the fresh complaint rule
for the basic reason that juries tend to be excessively skeptical in rape
cases.124 Moreover, the District of Columbia Court of Appeals explained
that the fresh complaint evidence is necessary because persistent and
regrettable assumptions about the credibility of the victims of sex crimes
still remain.125
127. Bailey, 348 N.E.2d at 749 (citation omitted). This is identical to other states
justification for adopting the fresh complaint doctrine. See supra Part I.B.
128. See Commonwealth v. Montanez, 788 N.E.2d 954, 959 (Mass. 2003); see also PAUL
J. LIACOS, MARK S. BRODIN & MICHAEL AVERY, HANDBOOK OF MASSACHUSETTS EVIDENCE
6.19.2, at 347 (7th ed. 1999).
129. Commonwealth v. Comtois, 506 N.E.2d 503, 506-07 (Mass. 1987) (quoting
Commonwealth v. Bedard, 383 N.E.2d 546, 547 (Mass. App. Ct. 1978)).
130. Commonwealth v. Amirault, 535 N.E.2d 193, 198-99 (Mass. 1989); see also
Commonwealth v. Montanino, 567 N.E.2d 1212, 1216 (Mass. 1991) (explaining that the
preliminary question of whether the complaint was sufficiently prompt to be presented to
the jury is within the judges discretion).
131. Commonwealth v. Sherry, 437 N.E.2d 224, 229 (Mass. 1982).
132. Commonwealth v. King, 441 N.E.2d 248, 253 (Mass. 1982). This is essentially the
same as the totality of the circumstances test that most states apply when determining
whether or not the victims complaint was sufficiently prompt. See discussion supra Part
I.B.3.a.
133. Commonwealth v. Lagacy, 504 N.E.2d 674, 677 n.6 (Mass. App. Ct. 1987).
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complainant,142 but the fresh complaint witnesss testimony did not have
to be identical to the victims testimony.143 Lastly, the judge could exclude
details that were so graphic, colorful or gruesome as to have an important
effect on the jury.144
Massachusetts limits the evidentiary reach of fresh complaint
testimony to corroborating the victims testimony.145 This poses a
significant risk that jurors will use fresh complaint evidence substantively;
as such, judges are advised to instruct the jury that fresh complaint
evidence shall only be used to corroborate the victims testimony.146 This
limiting instruction shall be given when the evidence is admitted and
during the judges final charge to the jury.147 To further alleviate the risk
that jurors will use fresh complaint evidence substantively, the judge
should define corroboration in the instructions to the jury.148 Failure to
instruct the jury that fresh complaint evidence is only to be used to
corroborate the victims testimony may create a risk substantial enough to
constitute a miscarriage of justice demanding reversal.149 Although
repetition of fresh complaint testimony may potentially amplify the risk
that jurors will use the evidence substantively,150 Massachusetts has
permitted multiple fresh complaint witnesses to testify.151 Finally, judges
are permitted to exercise their discretion to exclude repetitious details of
the alleged assault to prevent possible prejudice to the defendant.152
Only fresh complaints that are voluntary are admissible,153 but
complaints d[o] not cease to be voluntary merely because they may have
154. Commonwealth v. Ellis, 67 N.E.2d 234, 236 (Mass. 1946) (citations omitted).
155. See Commonwealth v. Hanger, 258 N.E.2d 555, 558 (Mass. 1970).
156. Commonwealth v. Davids, 600 N.E.2d 1006, 1009 (Mass. App. Ct. 1992) (admitting
fresh complaint evidence even though the victim testified at trial on cross-examination that
his aunt kept on asking me).
157. Commonwealth v. Lavalley, 574 N.E.2d 1000, 1003-04 (Mass. 1991).
158. Id. at 1004.
159. Id. at 1004 n.7.
160. See id. The court did not address whether juries make this assumption. See id.
161. Id. at 1004.
162. See Commonwealth v. Licata, 591 N.E.2d 672 (Mass. 1992).
163. Id. at 674.
164. Id.
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invalid, sexual myths.165 Yet, the court left the fresh complaint rule
undisturbed acknowledging the societal tendency to disbelieve sexual
assault victims and to presume that a rape victim will make a prompt
complaint.166 Despite the serious doubts that the Lavalley and Licata
courts conveyed regarding the fresh complaint rule, Massachusetts
continued to employ the rule until the landmark 2005 decision of
Commonwealth v. King.167
165. Id.
166. Id.
167. See infra Part II.
168. Commonwealth v. King, 834 N.E.2d 1175, 1181 (Mass. 2005).
169. See id. at 1181-83.
170. Id. at 1182.
171. Id.
172. Id.
173. Id.
174. King, 834 N.E.2d at 1182.
175. Id.
176. See id. at 1183.
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trial court properly admitted the fresh complaint evidence and upheld the
defendants conviction but used the case as an opportunity to reconsider
the scope and continued necessity of the fresh complaint rule.177 The SJC
deemed adoption of the First Complaint Doctrine as a necessary step in
order to comport with changed circumstances.178 The Doctrine permits
the prosecution to introduce the testimony of a person that the victim
complained to notwithstanding the timing of the complaint, but limits the
prosecution to calling only the first person that the victim complained to.179
210. Id.
211. King, 834 N.E.2d at 1199-1200.
212. See id. at 1181.
213. Id.
214. Id. at 1197.
215. See id. at 1197-98.
216. Id. at 1198.
217. See King, 834 N.E.2d at 1199-1200.
218. Id. at 1201.
219. Id. at 1200.
220. Id.
221. See id. at 1196-1200.
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232. See Martha R. Burt, Rape Myths and Acquaintance Rape, in ACQUAINTANCE RAPE:
THE HIDDEN CRIME 26, 27 (Andrea Parrot & Laurie Bechhofer eds., 1991).
233. See BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE, CRIMINAL
VICTIMIZATION IN THE UNITED STATES, 2002 STATISTICAL TABLE 27 (2002), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cvus02.pdf (stating that sixty-three percent of rapes
are committed by someone the victim knows).
234. See Katharine K. Baker, Sex, Rape, and Shame, 8 DEPAUL J. HEALTH CARE L. 179,
202, 212 (2004).
235. See id.; Stanchi, supra note 45, at 460.
236. Daane, supra note 1, at 82; see Rachel M. Capoccia, Piercing the Veil of Tears: The
Admission of Rape Crisis Counselor Records in Acquaintance Rape Trials, 68 S. CAL. L.
REV. 1335, 1379-80 & n.229 (1995).
237. Baker, supra note 234, at 200.
238. See Curtis, supra note 109.
239. See Holly Hogan, The False Dichotomy of Rape Trauma Syndrome, 12 CARDOZO
J.L. & GENDER 529, 531 (2006).
240. Rape Trauma Syndrome describe[s] a predictable stress response pattern . . .
victim[s] . . . typically display[] following an assault. ROB HALL, RAPE IN AMERICA 95
(1995). The term was coined in 1974 by Doctors Ann Burgess and Lynda Holmstrom.
Arthur H. Garrison, Rape Trauma Syndrome: A Review of a Behavioral Science Theory and
its Admissibility in Criminal Trials, 23 AM. J. TRIAL ADVOC. 591, 591 (2000).
241. Hogan, supra note 239.
242. Id.; see also JOY SATTERWHITE EYMAN, HOW TO CONVICT A RAPIST 92 (1994).
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[W]ithin a few hours of the rape, the women [may exhibit] . . . the controlled style, in
which feelings are masked or hidden and a calm, composed, or subdued affect is seen. Id.
243. Garrison, supra note 240, at 632.
244. Hogan, supra note 239, at 530 (explaining that rape victim responses following the
attack are so counterintuitive that jurors may conclude that the victim is lying); see also
Laura E. Boeschen, Bruce D. Sales & Mary P. Koss, Rape Trauma Experts in the
Courtroom, 4 PSYCHOL. PUB. POLY & L. 414, 424-25 (1998) (explaining that defense
attorneys for the alleged perpetrators often attempt to undermine victims credibility by
describing victims counterintuitive behavior following the attack at length).
245. See infra text accompanying notes 246-255. In cases of sexualized violence . . .
victims often . . . do not report a full or accurate version the first time. Roger C. Park &
Michael J. Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn,
47 B.C. L. REV. 949, 1005 (2006).
246. Kim Lane Scheppele, The Ground-Zero Theory of Evidence, 49 HASTINGS L.J. 321,
331 (1998).
247. Brodsky, supra note 108, at 39.
248. Id.
249. See Stanley L. Brodsky, Sexual Assault: Perspectives on Prevention and Assailants,
in SEXUAL ASSAULT, supra note 108, at 3.
250. See Peter J. Murphy III, The Police Investigation, in THE RAPE CRISIS INTERVENTION
HANDBOOK 69, 70-72 (Sharon L. McCombie ed., 1980) (explaining that when the victim
calls the police to report a rape the clerk is generally the first person that the victim speaks
to and the clerk should gather basic details of the victim and the attack and also that an
interview to gather an in-depth account of what the victim suffered should be delayed).
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251. Dorothy J. Hicks & Charlotte R. Platt, Medical Treatment for the Victim: The
Development of a Rape Treatment Center, in SEXUAL ASSAULT, supra note 108, at 53, 55.
252. See id. at 55.
253. See Hogan, supra note 239, at 541.
254. See Scheppele, supra note 246, at 331 & n.22.
255. Commonwealth v. King, 834 N.E.2d 1175, 1199 (Mass. 2005).
256. See Kathleen F. Cairney, Note, Addressing Acquaintance Rape: The New Direction
of the Rape Law Reform Movement, 69 ST. JOHNS L. REV. 291, 296 n.28 (1995) (citing
JULIE A. ALLISON & LAWRENCE S. WRIGHTSMAN, RAPE: THE MISUNDERSTOOD CRIME 61, 63
(1993)); Hogan, supra note 239, at 532 (explaining that some rape victims do not
acknowledge that they were raped when the incident is not accompanied with violence).
257. Melissa J. Layman, Christine A. Gidycz & Steven Jay Lynn, Unacknowledged
Versus Acknowledged Rape Victims: Situational Factors and Posttraumatic Stress, 105 J.
ABNORMAL PSYCHOL. 1, 1 (1996).
258. Garrison, supra note 240, at 616.
259. Id.
260. Christina E. Wells & Erin Elliott Motley, Reinforcing the Myth of the Crazed
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facilitated rape may be unsure whether they were raped.261 Lastly, young
children may not complain about an assault because sometimes they do not
understand what has happened to them.262 Even in situations where a rape
victims response does not bewilder the jurors, the jurors may, nonetheless,
call the victims credibility into question.263
Rapist: A Feminist Critique of Recent Rape Legislation, 81 B.U. L. REV. 127, 150 & n.93
(2001) (citing ROBIN WARSHAW, I NEVER CALLED IT RAPE: THE MS. REPORT ON
RECOGNIZING, FIGHTING AND SURVIVING DATE AND ACQUAINTANCE RAPE 11-26 (1988)).
261. Daane, supra note 1, at 80.
262. Stanchi, supra note 45, at 461.
263. See infra Part III.E.
264. Capoccia, supra note 236, at 1367; see also Commonwealth v. Dillon, 863 A.2d
597, 602 (Pa. Super. Ct. 2004). Decisions in these cases frequently turn on . . . an
assessment by the fact-finder of the victims credibility. Id. [T]he rape victim herself[] is
nearly always a major focus of the case. Lynda Olsen-Fulero & Solomon M. Fulero,
Commonsense Rape Judgments, 3 PSYCHOL. PUB. POLY & L. 402, 402 (1997).
265. Phyllis L. Crocker, Crossing the Line: Rape-Murder and the Death Penalty, 26
OHIO N.U. L. REV. 689, 692 (2000).
266. Tamara Larsen, Comment, Sexual Violence is Unique: Why Evidence of Other
Crimes Should be Admissible in Sexual Assault and Child Molestation Cases, 29 HAMLINE
L. REV. 177, 199 (2006).
267. See Catalina A. Mandoki & Barry R. Burkhart, Women as Victims: Antecedents and
Consequences of Acquaintance Rape, in ACQUAINTANCE RAPE: THE HIDDEN CRIME, supra
note 232, at 180.
268. Larsen, supra note 266, at 201.
269. Id.
270. Burt, supra note 232. [M]any jurors believe . . . that the only real rape is stranger
rape. Andrea A. Curcio, The Georgia Roundtable Discussion Model: Another Way to
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Since most rapes are committed by someone that the victim knows,271
jurors are likely to call the victims credibility into question. Unfair
prejudice that rape victims suffer regarding their credibility became so
glaring that the federal government and many states passed rape shield
laws.272
Approach Reforming Rape Laws, 20 GA. ST. U. L. REV. 565, 610 (2004).
271. See supra text accompanying note 233.
272. Shacara Boone, Note, New Jersey Rape Shield Legislation: From Past to Present-
The Pros and Cons, 17 WOMENS RTS. L. REP. 223, 224 (1996); see, e.g., FED. R. EVID.
412(a); CAL. EVID. CODE 782 (West 2007); FLA. STAT. ANN. 794.022 (West 2007);
MASS. GEN. LAWS ANN. ch. 233, 21B (West 2007); MICH. COMP. LAWS ANN. 750.520j
(West 2007). Rape shield laws restrict[] or prohibit[] the use, in rape or sexual-assault
cases, of evidence about the past sexual conduct of the victim. BLACKS LAW DICTIONARY
1410 (8th ed. 2004).
273. State v. Freeman, 5 S.E. 921, 923-24 (N.C. 1888); Emily Marie Moeller, Comment,
Devolving Standards of Decency: Using the Death Penalty to Punish Child Rapists, 102
DICK. L. REV. 621, 641 (1998).
274. Date rape is defined as [r]ape committed by a person who is escorting the victim on
a social occasion. Loosely, date rape also sometimes refers to what is more accurately
called acquaintance rape or relationship rape. BLACKS LAW DICTIONARY 1288 (8th ed.
2004).
275. William H. Simon, The Prudent Jurist, LEGAL AFFAIRS, Mar.-Apr., 2005, at 17.
276. William H.J. Hubbard, Civil Settlement During Rape Prosecutions, 66 U. CHI. L.
REV. 1231, 1231 (1999).
277. Id. at 1234.
278. Id. at 1232.
279. See supra text accompanying notes 273-278.
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280. See supra Part III.C; see also Commonwealth v. Licata, 591 N.E.2d 672, 674 (Mass.
1992).
281. Hogan, supra note 239, at 541 (discussing a factual situation where young girls who
reported being sexually assaulted to the police disclosed more details in subsequent
conversations with investigators).
282. See supra text accompanying note 255 (explaining that victims fright may cause
their disclosure of the rape to lack much detail).
283. Commonwealth v. King, 834 N.E.2d 1175, 1198 (Mass. 2005) (listing situations
when someone other than the very first complaint witness can testify to the victims
complaint, but an incomplete first complaint is not one of these situations).
284. Id.
285. Expressio unius est exlcusio alterius is defined as [T]o express or include one thing
implies the exclusion of the other, or of the alternative. BLACKS LAW DICTIONARY 620 (8th
ed. 2004).
286. Commonwealth v. Blow, 348 N.E.2d 794, 797 (Mass. 1976). [A]dmission of a
partial statement [without the details] might tend to discredit the complainants testimony at
trial as a recent fabrication rather than to corroborate it. Id.
287. See supra Part III.C.
288. See King, 834 N.E.2d at 1197.
289. Blow, 348 N.E.2d at 797.
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the fact jurors often view rape victims with unwarranted doubts,303 limiting
prosecutors to presenting what may be only a very limited account of what
the victim endured will do little to overcome this unfair skepticism. An
incomplete first complaint may also place a stranglehold on prosecutors
because they already have a limited artillery, often relying primarily on the
victims testimony.304 Finally, in a worst case scenario, the possibility
looms that when limited to presenting an incomplete first complaint,
prosecutors may opt to not pursue a rape charge since they have such wide
discretion of how to handle cases,305 along with a need to obtain high
conviction rates.306
the courts.322 Furthermore, there may be situations where the victims first
statement regarding what she suffered is questionable as to whether it is a
true complaint because some victims are unsure as to whether they were
raped.323 The King court could have offered the trial courts guidance by
listing factors that indicate whether or not the victims statement qualifies
as a complaint.324 Since the trial courts were offered no guidance in how to
apply the Doctrine in these situations, they may encounter difficulty in
doing so and render inconsistent opinions.325
Given the difficulty that the trial courts may face in applying the
Doctrine in certain situationsbecause of the King courts lack of
guidance326the trial courts may, to simplify matters, interpret the
Doctrine such that prosecutors can only call the first person that the victim
told, without considering whether the characteristics of the victims
statement rise to the level of a complaint.327 Such an interpretation would
be problematic for the prosecution because some victims are not aware that
they were raped.328 In those situations where the victims are not
immediately aware that they were raped, their initial disclosure of the
occurrence is likely to be a mere disclosure of the events that unfolded,
devoid of any mention of lack of consent or force used by the perpetrator.
The victims failure to discuss such aspects can have an adverse impact on
322. See, e.g., Crawford v. Washington, 541 U.S. 36, 59 (2004) (conditioning the
admissibility of statements, when the declarant does not appear at trial for cross
examination, upon such statements being non-testimonial when party offering statements is
faced with a Confrontation Clause challenge, but failing to define testimonial and non-
testimonial); Manson v. Brathwaite, 432 U.S. 98, 124 (1977) (holding that suggestive police
identification procedures may be objectionable, but failing to give examples of what types
of procedures would satisfy the requisite level of suggestiveness to become objectionable).
323. George E. Panichas, Rape, Autonomy, and Consent, 35 LAW & SOCY REV. 231,
246-47 (2001) (referencing the view that women cannot be sure as to whether or not they
consented and thus cannot distinguish consensual sex from rape).
324. Cf. People v. Conley, 543 N.E.2d 138, 143 (Ill. App. Ct. 1989) (stating that one can
look at factors such as the surrounding circumstances, the defendants words, the weapon
used, and the force used to determine whether or not the defendant intended to cause injury).
325. Cf. City Council of Waltham v. Vinciullo, 307 N.E.2d 316, 318 (Mass. 1974)
(acknowledging difficulty in applying rule that allows statutes to operate retroactively only
when they affect practice, procedure, and evidence, but not when they affect substantive
rights).
326. See supra text accompanying notes 320-325.
327. Cf. Steven P. Grossman, Suggestive Identifications: The Supreme Courts Due
Process Test Fails to Meet Its Own Criteria, 11 U. BALT. L. REV. 53, 96-97 (1981)
(explaining that lower courts treated the issue of whether or not police identification
procedures were suggestive as a basic concept without flexibility because the Supreme
Court failed to give examples of what types of identification procedures would be
objectionable).
328. See supra Part III.D.
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the prosecutions case because the jury will be instructed as to the elements
of rape, such as force and lack of consent, and the complaint witness will
not be able to corroborate these elements with the victims testimony.329
Consequently, if the Doctrine is applied such that the prosecution can only
call the first person that the victim disclosed the incident to, the jury may
hear witness testimony that does not conform to a lay persons
interpretation of a complaint.330
336. Michael P. Dickey, The Florida Evidence Code and the Separation of Powers
Doctrine: How to Distinguish Substance and Procedure Now That It Matters, 34 STETSON
L. REV. 109, 144 (2004). [T]he lodestars of reliability and trustworthiness . . . guide the
application of the rules of evidence. Id.; see Wallace D. Loh, The Evidence and Trial
Procedure: The Law, Social Policy, and Psychological Research, in THE PSYCHOLOGY OF
EVIDENCE AND TRIAL PROCEDURE 13, 16 (Saul M. Kassin & Lawrence S. Wrightsman eds.,
1985).
337. Commonwealth v. King, 834 N.E.2d 1175, 1197 (Mass. 2005).
338. See, e.g., Commonwealth v. Kirkpatrick, 668 N.E.2d 790, 795-96 (Mass. 1996)
(upholding the trial courts ruling that allowed the prosecution to introduce the testimony of
five fresh complaint witnesses); Commonwealth v. Licata, 591 N.E.2d 672, 673-74 (Mass.
1992) (upholding the trial courts ruling that allowed the prosecution to introduce the
testimony of the two complaint witnesses).
339. King, 834 N.E.2d at 1197.
340. Id. at 1192 (citing Commonwealth v. Swain, 632 N.E.2d 848, 854 (Mass. App. Ct.
1994), where the appeals court held that the use of six complaint witnesses was prejudicial
and justified reversal of the defendants conviction).
341. See supra Part III.C.
342. Laura E. Reece, Womens Defenses to Criminal Homicide and the Right to Effective
Assistance of Counsel: The Need for Relocation of Difference, 1 UCLA WOMENS L.J. 53,
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details that multiple complaint witnesses would testify to, the judge can
overcome this problem by carefully limit[ing] the [witnesss] testimony to
avoid duplication concerning the details of the complaint.343 The King
courts argument that multiple complaint witness testimony may be
unfairly prejudicial to the defendant is also diluted by the fact that jury will
be instructed that the testimony is not to be considered as evidence that the
assault in fact occurred.344 This component of the Doctrine arguably strips
trial court judges of their discretion to admit the testimony of multiple
complaint witnesses in all situationsincluding those where the threat of
unfair prejudice is absent.
57 n.25 (1991).
343. See King, 834 N.E.2d at 1192; Licata, 591 N.E.2d at 659.
344. King, 834 N.E.2d at 1201.
345. Id.
346. Id. at 1194.
347. Id. at 1193-97.
348. See Dubois, supra note 49, at 1107. Delay in adult victims is a reflection of rape
mythology, not veracity. Stanchi, supra note 45, at 460.
349. King, 834 N.E.2d at 1197.
350. See Stanchi, supra note 45.
351. See id. at 443.
352. Id.; see also King, 834 N.E.2d at 1197 (stating that the prompt requirement may
have exacerbated the problem that juries believe victims who report the incident promptly
are more credible than victims who delay in reporting the incident).
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may consider the timing of the complaint when evaluating the victims
credibility because jurors may do this on their own,361 and because the
timing of the complaint is seldom a reliable indicator of truthfulness.362
The proposed revisions will not alter the central holding of King; the
timing of the victims complaint will not determine admissibility of the
complaint.363 Meanwhile, the proposed revisions to the Doctrine are likely
to counter the damaging stereotypes and prejudicial misperceptions
that rape victims often confront.364 Finally, these revisions will assure that
the jury is provided with the maximum amount of information regarding
the rape victims complaint in order to assess the truthfulness of the
complaint and the victim.365
CONCLUSION
In an era when securing a conviction in a rape trial is extremely
difficult,366 the Doctrine, which may be an additional hurdle to
prosecutors,367 is a cause for concern. First and foremost, by limiting
prosecutors to calling the first person that the victim complained to,368 the
Doctrine inhibits prosecutors from exercising their usual discretion of
presenting their case in a manner that they deem fit in light of their training
and experience.369 The King court rightfully acknowledged that the fresh
complaint rule was in dire need of revision because many rape victims do
not complain to others in a timely fashion.370 What the court failed to
realize was that the Doctrine will sometimes give prosecutors the bleak
option of presenting an incomplete complaint or no complaint at all.371
force or threat of force and against the victims will to convict a defendant of rape).
361. See supra text accompanying note 351.
362. See People v. Brown, 883 P.2d 949, 956 (Cal. 1994).
363. See King, 834 N.E.2d at 1197.
364. See id. at 1194-95.
365. See id. at 1198.
366. See Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a
Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1024 (1991) (stating that
conviction rates for rape are estimated to be as low as one to four percent). Other reports
suggest that the conviction rate for rape prosecutions is not that low, but that it still pales in
comparison to conviction rates for robbery and murder prosecutions. See Cain, supra note
25, at 374.
367. See supra Part IV.
368. Commonwealth v. King, 834 N.E.2d 1175, 1197 (Mass. 2005).
369. See Franklin E. Zimring, Penal Policy and Penal Legislation in Recent American
Experience, 58 STAN. L. REV. 323, 338 (2005) (explaining that the modern criminal justice
system is heavily dependent on prosecutors discretion).
370. See supra text accompanying notes 98-99.
371. See supra Part IV.A.
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