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COMMENT

COMMONWEALTH V. KINGS FIRST


COMPLAINT DOCTRINE: THE
VOICE OF INJUSTICE MAY SPEAK
LOUDLY WHEN RAPE VICTIMS ARE
SILENCED

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).

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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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the Doctrine, as it stands, may be incompatible with rape victim responses


in certain circumstances.14
Part I explains the roots of the fresh complaint rule15 and proceeds
with a discussion of its justification and application.16 Part I also discusses
the courts logic behind the requirement of promptness as a condition to
admissibility of rape victims complaints.17 Part I analyzes the recent
criticism of the fresh complaint rule,18 and concludes by discussing how the
fresh complaint rule was applied by Massachusetts courts,19 and recently
doubted by the SJC.20
Part II discusses the change in the law and the Doctrine, which may
have resulted from the SJCs intensifying doubts regarding the integrity of
the fresh complaint rule.21 Part II also explains the individual components
of the Doctrine22 and discusses how the Doctrine is a de facto silencing of
rape victims because evidence of their subsequent complaints to witnesses
is inadmissible, even if such complaints were prompt.23
Part III explains that rape victims emotions and responses may
sometimes leave jurorswho are uneducated about the psychology of rape
victimsscratching their heads.24 Part III also discusses how prosecutors
are forced to counter skepticism that jurors may harbor about rape victims25
while often relying on the victims testimony as an integral part of their
case.26 The rape victims characteristics and jurors skepticism may have a
significant impact on prosecutors with the King courts creation of the
Doctrine.27
Part IV discusses the inherent pitfalls in the application of the
Doctrine.28 First, Part IV explains how the Doctrine will sometimes limit

14. See infra Part IV.


15. See infra Part I.A.
16. See infra Parts I.B.1-2, I.B.4.
17. See infra Part I.B.3.
18. See infra Part I.C.
19. See infra Part I.D.
20. See infra Part I.D.3.
21. See infra Part II.
22. See infra Part II.C.
23. See Commonwealth v. King, 834 N.E.2d 1175, 1197 (Mass. 2005).
24. See infra Part III.A-D.
25. See Margaret A. Cain, Comment, The Civil Rights Provision of the Violence Against
Women Act: Its Legacy and Future, 34 TULSA L.J. 367, 373-74 (1999) (explaining that the
societal distrust of rape victims impacts jurors attitudes and causes them to side with the
defendant).
26. See infra Part III.F.
27. See infra Part IV.
28. See infra Part IV. For purposes of this Comment, problems the First Complaint
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prosecutors to introducing incomplete first complaints.29 Second, Part IV


explains how the Doctrine may discredit rape victims.30 Third, Part IV
explains how the Doctrine may result in the introduction of evidence that
lay persons do not consider to be complaints.31 Fourth, Part IV explains
how the Doctrine may operate to admit evidence that is less reliable than
what it prohibits.32 Fifth, Part IV questions why the Doctrine prohibits a
practice that was not shown to be harmful to the defendant.33 Sixth, Part IV
questions a portion of the Doctrines jury instruction that runs contrary to
the purpose of the modification of the fresh complaint rule.34 Finally, Part
IV proposes revisions to the Doctrine that will resolve the difficulties posed
by its application.35

I. WHAT IS THE FRESH COMPLAINT RULE?

A. The Birth of the Fresh Complaint Rule


The fresh complaint rule is the progeny of old English common law
that required victims of violent crimes to publicly call for help.36 The
public call for help was referred to as a hue-and-cry (immediate
complaint) and was a necessary element of the prosecutions case when
the defendant was charged with a violent crime.37 An immediate complaint
was required because [v]ictims of violent crimes were expected to cry out
immediately and alert their neighbors . . . .38 By the 1700s, an immediate
complaint was no longer required in criminal prosecutions, except for rape
cases.39 An immediate complaint remained a requirement in rape
prosecutions because the authorities believed that victims of rape would
promptly speak to someone about the attack, while those who remained
silent were consenting partners.40 By the early 1800s, courts in the

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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United States no longer required an immediate complaint for rape


prosecutions.41 Consequently, the immediate complaint requirement was
effectively replaced by the fresh complaint rule.42 The fresh complaint rule
permits the prosecution to introduce fresh complaint evidence43 in rape
cases, but the lack of such evidence is not dispositive of the prosecutions
case.44

B. Purpose of the Fresh Complaint Rule and Its Traditional


Application in State Courts

1. Justifications for the Fresh Complaint Rule


The fresh complaint rule is a unique evidentiary rule that only has
application in the prosecution of sexual assault and rape cases.45 The rule
provides that a victims out-of-court complaint alleging a sexual assault is
admissible as part of the prosecutions case-in-chief if the complaint was
seasonably made.46 For example, in one case, a rape victim complained to a
police officer forty minutes after the incident, and the prosecution was
permitted to call the police officer to testify as to the victims complaint.47
Generally, prior consistent statements are only admissible to rehabilitate a
witness that has been impeached on cross-examination.48 The fresh
complaint rule has no parallel in the prosecution of other criminal
offenses, as the static evidentiary rule that consistent statements are only
admissible after a charge of recent fabrication is faithfully followed.49 The
fresh complaint testimony is admissible prior to impeachment because the
credibility of the victims testimony in a rape case is automatically
vulnerable to attack by the defendant as recent fabrication, if such
testimony is absent.50 Lastly, fresh complaint testimony does not fall into
the excited utterance hearsay exception because the rule does not require

41. Anderson, supra note 6, at 955.


42. Hill, 578 A.2d at 375.
43. Fresh complaint evidence is defined as a victims prompt report of a sexual assault
to someone trustworthy. BLACKS LAW DICTIONARY 692 (8th ed. 2004).
44. See Commonwealth v. Lavalley, 574 N.E.2d 1000, 1004 n.7 (Mass. 1991).
45. Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C. L. REV. 441,
442 (1996).
46. Id.
47. State v. Kendricks, 891 S.W.2d 597, 599-605 (Tenn. 1994).
48. FED. R. EVID. 801(d)(1)(B). Prior consistent statements can also be admitted if they
are not used to prove the truth of the matter asserted. See id. 801(c).
49. Dawn M. Dubois, Note, A Matter of Time: Evidence of a Victims Prompt
Complaint in New York, 53 BROOK. L. REV. 1087, 1088 (1988).
50. Commonwealth v. Dillon, 863 A.2d 597, 602 (Pa. Super. Ct. 2004).
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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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the product of fear, shame, or the like.59

2. The Utility of Fresh Complaint Evidence


Initially a criminal defendant could not be convicted of rape unless
the prosecution presented corroborative evidence in addition to the victims
testimony.60 Fresh complaint testimony was of great use to prosecutors
because such testimony could function as corroborative evidence.61 Only
three states explicitly require corroborative evidence by statute as a
prerequisite to the conviction of a defendant for a sexual offense.62 In
addition, only three states require a fresh complaint in rape prosecutions,
and the requirement only applies when the victim and defendant are
spouses.63 Because only six jurisdictions require corroborative evidence or
a prompt complaint in sexual assault prosecutions, the most common use of
fresh complaint testimony is to strengthen the victims testimony.64
Although forty-seven jurisdictions do not require evidence of a fresh
complaint in a rape prosecution by statute,65 some of these jurisdictions
suggest that the absence of a fresh complaint, although not dispositive, can
affect the jurys perception of the case.66 This is mainly because juries may
question the victims allegation if such a complaint is missing,67 and juries
may be instructed to consider the absence of a fresh complaint as a
circumstance when deliberating guilt or innocence.68

3. The Requirement of Promptness


In order for the victims out-of-court statements to be admissible
under the fresh complaint rule, the complaint must be sufficiently

59. WIGMORE, supra note 37, at 301.


60. Anderson, supra note 6, at 948.
61. Id. at 957.
62. Id. at 968; but see MODEL PENAL CODE 213.6(5) (1985). No person shall be
convicted of any [sexual offense] under this Article upon the uncorroborated testimony of
the alleged victim. Id.
63. Anderson, supra note 6, at 964.
64. Id. at 968.
65. See id. at 964; see, e.g., MICH. COMP. LAWS ANN. 750.520h (West 2007); GA.
CODE ANN. 16-6-1 (West 2007); PA. CONS. STAT. ANN. 3105 (West 2007).
66. See Commonwealth v. Lane, 555 A.2d 1246, 1250 (Pa. 1989); Marshall v. State, 395
N.W.2d 362, 365 (Minn. Ct. App. 1986); State v. Ewing, 173 P. 927, 927 (Kan. 1918)
(stating that failure to make a prompt complaint suggests a lack of non-consent and a lack of
force, both of which are elements of the crime of rape).
67. Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. Ct. 2005) (quoting
Commonwealth v. Willis, 552 A.2d 682, 691-92 (1988)).
68. See, e.g., State v. Thomas, 174 S.W.2d 337, 345 (Mo. 1943).
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recent or prompt.69 The rationale for admitting the out-of-court


statement on the condition that the statement was prompt is based on the
assumption that victims who were truly sexually assaulted [will] naturally
complain immediately.70 This assumption is so strong that, American
courts . . . endorsed the belief that the failure of a rape victim to make a
prompt complaint . . . amounted to a statement inconsistent with victims
courtroom testimony.71 A complaint that was not sufficiently prompt no
longer could negate legitimately the inference that the victim had remained
silent in the aftermath of the alleged offense.72 As a result, the fresh
complaint rule only permits the admission of complaints made
immediately or shortly after the sexual assault.73

a. The Promptness Requirement Has Become a Non-Rigid


Standard
The requirement that the complaint be fresh, however, has recently
become more flexible.74 Many courts now apply a totality of the
circumstances test to determine whether the complaint was made at a
reasonable time and whether there was an acceptable explanation for any
delay.75 Previously courts determined admissibility of the complaint by
merely reviewing the time gap between the rape and the complaint without

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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evaluating surrounding factors.76 Factors to consider when determining if


the complaint was made in a reasonable time are the age of the
complainant, whether the complainant is related to the defendant, whether
complainant lived with the defendant, and whether defendant threatened
the complainant with violence.77
The flexibility of the fresh complaint requirement has been especially
prevalent in cases where the victim was a child.78 Many delayed complaints
by children have been admitted where the child was threatened by or in fear
of the defendant.79 Despite the leniency that children are afforded in
regards to the fresh complaint requirement, many courts have held that a
childs delay in making a complaint is a factor that can affect the
prosecutions case and a victims credibility.80 Finally, the recent trend of
greater flexibility with the fresh complaint requirement maintains some
outward limits, as most courts find complaints made several months after
the alleged assault inadmissible.81 The inadmissibility of these complaints
may impair the prosecutions case because jurors may question the validity
of the victims allegation more scrupulously if evidence of a fresh

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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complaint is not presented.82

4. The Scope of Fresh Complaint Evidence


The vast majority of jurisdictions hold that the witness who heard the
victims complaint may only testify to the fact that the victim made the
complaint, and cannot testify to the details of the complaint.83 The reason
for this limitation is that fresh complaint evidence is merely intended to
demonstrate that the victim did not remain silent after the attack.84 There
are a few jurisdictions that permit the prosecution to introduce the details of
the fresh complaint.85 One such jurisdiction criticizes the majority rule
because it ask[s] the jury to draw important inferences from imperfect
materials, and nothing ought unnecessarily be left to speculation or
surmise.86 The majority rule leaves out what may be crucial details of the
allegation and does not help to thwart jurors skepticism of rape allegations
and a victims credibility.87
Generally, fresh complaints are not substantive evidence because they
are not admitted to prove the truth of the matter asserted, but merely to
prove that the complaint was made.88 Some state courts, however, have
plainly stated that evidence of a fresh complaint can be used as substantive
evidence of the sexual assault.89 New Jersey and Massachusetts have
explicitly stated that the fresh complaint testimony is not substantive
evidence and is limited to the purpose of corroborating the victims
testimony.90 However, courts in these two jurisdictions stated that fresh
complaint testimony would obviously be admissible as substantive
evidence if the complaint fits a hearsay exception,91 because hearsay

82. See supra text accompanying note 53.


83. See State v. Troupe, 677 A.2d 917, 926 (Conn. 1996). Forty-four states and the
District of Columbia only allow admission of the fact that the complaint was made. Id. at
926 n.14; e.g., State v. Calor, 585 A.2d 1385, 1387 (Me. 1991); State v. Campbell, 705 P.2d
694, 699-700 (Or. 1985); see, e.g., State v. Golden, 336 S.E.2d 198, 202 (W. Va. 1985).
84. WIGMORE, supra note 37, 1136, at 307.
85. See, e.g., Troupe, 677 A.2d at 925; State v. Blohm 281 N.W.2d 651, 651 (Minn.
1979); State v. Sanders, 691 S.W.2d 566, 568 (Tenn. 1984).
86. Commonwealth v. Lavalley, 574 N.E.2d 1000, 1003 (Mass. 1991) (alteration in
original) (quoting The Queen v. Lillyman, 2 Q.B. 167, 177-78 (1896)).
87. See Stanchi, supra note 45, at 465.
88. Graham, supra note 55, at 490.
89. See, e.g., State v. Moran, 584 So. 2d 318, 323 (La. Ct. App. 1991); Cole v. State,
574 A.2d 326, 330-31 (Md. Ct. Spec. App. 1990); Commonwealth v. Dillon, 863 A.2d 597,
602 (Pa. Super. Ct. 2004).
90. See Commonwealth v. King, 834 N.E.2d 1175, 1181 (Mass. 2005);State v. Hill, 578
A.2d 370, 378 (N.J. 1990).
91. See, e.g., King, 834 N.E.2d at 1196 (explaining that a fresh complaint in response to
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exceptions allow the evidence to be offered to prove the truth of the matter
asserted.92

C. Criticism of the Fresh Complaint Rule


The fresh complaint rule has been subject to a barrage of criticism
because although the rule is intended to aid the prosecution of rape cases,93
it is possible that the rule may be more harmful than helpful.94 The rule
suggests that a prompt complaint equates to a truthful victim.95 Such a
suggestion is problematic because it reinforces the improper assumption
that victims who fail to make a prompt complaint are fabricating their
allegations.96 The delay in making a complaint should not be translated into
a lack of veracity.97
The reality is that not all victims tell someone that they were raped
immediately following commission of the offense.98 It is not uncommon
for a rape victim to delay complaining to the authorities,99 and many
victims will never complain to the police.100 Rape remains one of the least
reported felonies in the country.101 Unlike robbery, where victims may have
an incentive to report the crime to recover property, for example, rape
victims have several disincentives to report what they have suffered.102 In a
worst-case scenario, the fresh complaint rule could operate to reward the
most brutal assailants by excluding victims non-fresh complaints from
evidence because the victims remained silent as a product of their fear.103
There are multiple disincentives that discourage a rape victim from

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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642 NEW ENGLAND LAW REVIEW [Vol. 42:631

making a complaint.104 Prior to the implementation of Rape Shield Laws,105


many rape victims were hesitant to report the crime because defense
attorneys were permitted to question the victims sexual past, thus the
victims felt victimized a second time by the criminal justice system.106
Currently, adult sexual assault victims delay complaining because they are
in fear of the perpetrator,107 or fear no one will believe them, or because
they feel embarrassed or guilty about the sexual assault.108 Victims do not
complain because of embarrassment especially when the victim had a prior
relationship with the perpetrator.109 Physical effects of the rape such as
shock, injury, [or] hospitalization may also prevent the victim from
making a timely complaint.110 Meanwhile, younger victims may delay
complaining because they are scared of the way that their family will
respond or because they are in conscious or unconscious denial of their
memories.111
On college campuses, victims may fail to report their experiences
because of their aware[ness] of the devastating impact of gossip that
accompanies the reporting of a sexual assault.112 Although many assume
that rapes are committed by strangers, the majority of rapes are committed
by someone the victim knows113 and these particular victims often hesitate
to report because they feel responsible for it.114 Lastly, victims may delay

104. DuBois, supra note 49, at 1106.


105. See 29 AM. JUR. 2D Evidence 373 (1994) (explaining that Rape Shield Laws bar
the admission of the reputation of the alleged victim and have been enacted in many
jurisdictions); see also FED. R. EVID. 412(a)(1)-(2) (prohibiting evidence that victim engaged
in other sexual behavior and evidence offered to prove the victims sexual predisposition).
106. Jeffrey W. Spears, Prosecution of Sex Crimes, in SEXUAL ASSAULT: THE VICTIMS,
THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM, supra note 1, at 292.
107. MENACHEM AMIR, PATTERNS IN FORCIBLE RAPE 289-90 (1971).
108. Stanchi, supra note 45, at 459-60; see, e.g., Carroll M. Brodsky, Rape at Work, in
SEXUAL ASSAULT 35, 40 (Marcia J. Walker & Stanley L. Brodsky eds., 3d prtg. 1979)
(explaining that victim waited a long period to complain to someone because she was
embarrassed).
109. Lynn A. Curtis, Present and Future Measures of Victimization in Forcible Rape, in
SEXUAL ASSAULT, supra note 108, at 61, 65.
110. AMIR, supra note 107, at 290.
111. Veronica Serrato, Note, Expert Testimony in Child Sexual Abuse Prosecutions: A
Spectrum of Uses, 68 B.U. L. REV. 155, 160 (1988).
112. Seidman & Vickers, supra note 101, at 474.
113. Tammy Garland, An Overview of Sexual Assault and Sexual Assault Myths, in
SEXUAL ASSAULT: THE VICTIMS, THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM,
supra note 1, at 5, 19. [T]he man [may be] a neighbor, an acquaintance, or a date. . . . He
[may be] a respected bachelor, a student, a businessman, or a professional. . . . He does not
have a weapon. SUSAN ESTRICH, REAL RAPE 8 (1987).
114. Stanchi, supra note 45, at 460.
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2008] COMMONWEALTH V. KING 643

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

D. Application of the Fresh Complaint Rule in Massachusetts


Courts
One of the earliest cases in Massachusetts that discussed what would
become known as the fresh complaint rule evaluated whether the complaint
was made at too remote [of a] point [in] time to be admissible.126

115. Id. at 461.


116. See supra text accompanying notes 49-51.
117. Stanchi, supra note 45, at 469.
118. Id.
119. See id. at 448-49.
120. See State v. Troupe, 677 A.2d 917, 926 (Conn. 1996).
121. Stanchi, supra note 45, at 448.
122. See State v. Hill, 578 A.2d 370, 377-78 (N.J. 1990).
123. Id. at 377.
124. Commonwealth v. Licata, 591 N.E.2d 672, 674 (Mass. 1992) (quoting
Commonwealth v. Bailey, 348 N.E.2d 746, 750 (Mass. 1976)).
125. Battle v. U.S., 630 A.2d 211, 221 (D.C. 1993).
126. Commonwealth v. Cleary, 51 N.E. 746, 746 (Mass. 1898).
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644 NEW ENGLAND LAW REVIEW [Vol. 42:631

Massachusetts justified the fresh complaint rule on the ground that a


victims failure to make prompt complaint might be viewed by the jury as
inconsistent with the charge of sexual assault, and in the absence of
evidence of complaint the jury might assume that none was made.127 Akin
to other jurisdictions, impeachment of the victim was not a prerequisite to
the admissibility of fresh complaint testimony in Massachusetts courts.128

1. Massachusetts Employs a More Flexible Promptness


Requirement.
Prior to King, Massachusetts did not have a rule that prescribed
exactly when a complaint had to be made after an alleged assault in order
to be admissible as a fresh complaint.129 The determination of whether
complaints were sufficiently prompt to constitute fresh complaints
rest[ed] within the sound discretion of the trial judge.130 When a
Massachusetts judge elected to admit fresh complaint testimony, he was
advised to instruct the jury that they could make the ultimate decision to
disregard the testimony if they concluded that the complaint was not
reasonably prompt.131 A complaint was admissible as a fresh complaint
when the victims complaint was reasonably prompt given the particular
circumstances of the case.132
The prompt requirement was more flexible when the victim was a
child lending special consideration to the natural fear, ignorance and
susceptibility to intimidation that is often part of a childs make-up.133
When the victim was a child, juries could consider several factors to arrive
at their judgment of whether the complaint was reasonably prompt. Such
factors include the childs age, the relationship between the child and

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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2008] COMMONWEALTH V. KING 645

defendant, and whether the defendant threatened or coerced the child.134


This flexibility often yielded the admission of statements made by child
victims several months after the alleged assault as fresh complaints.135 The
lack of a fresh complaint could be considered by the jury when questioning
how much weight to give to the victims testimony.136 Lastly, prohibiting
the defendant from introducing evidence of the lack of a fresh complaint
has been grounds for the reversal of the defendants conviction.137

2. The Scope of Fresh Complaint Evidence in Massachusetts


Massachusetts fresh complaint rule took the minority approach by
admitting both the fact that the complaint was made and the details of the
complaint into evidence.138 The SJC reasoned that admitting the details of
the complaint was a superior approach because it would enable juries to
arrive at their own interpretation of the victims complaint.139 When the
prosecution wished to introduce the details of the fresh complaint, the
witness whom the victim complained to was required to testify at trial and
be available for cross-examination.140 When the victim only testified to the
fact that she had complained to people and did not reveal the details of
these conversations, the prosecution was not required to produce the
witness that the victim complained to.141 The details of the fresh complaint
were limited in scope to the events raised during the testimony of the

134. Commonwealth v. Fleury, 632 N.E.2d 1230, 1232-33 (Mass. 1994).


135. See Commonwealth v. Comtois, 506 N.E.2d 503, 506 n.9 (Mass. 1987) (admitting
statement made nine months after alleged assault as a fresh complaint); see also Fleury, 632
N.E.2d at 1232 (admitting childs statement made twenty-one months after last incident as a
fresh complaint); Commonwealth v. Hyatt, 579 N.E.2d 1365, 1367-68 (Mass. App. Ct.
1991) (admitting teenagers complaint that was made two years after the incident). But see
Commonwealth v. Spence, 645 N.E.2d 58, 59-60 (Mass. App. Ct. 1995) (excluding
complaint made fifteen months after incident despite the fact that the victim was eleven at
time of incident because victim was not related to the defendant and did not fear the
defendant).
136. See Commonwealth v. Izzo, 267 N.E.2d 631, 634-35 (Mass. 1971); see also
Commonwealth v. Piccerillo, 152 N.E. 746, 747 (Mass. 1926) (upholding jury instructions
that stated whether or not victim made an immediate complaint is proper to be considered
on the question of how much weight to give to the victims testimony).
137. See Commonwealth v. Pratt, 679 N.E.2d 579, 579-80 (Mass. App. Ct. 1997).
138. Commonwealth v. Peters, 705 N.E.2d 1118, 1121 (Mass. 1999).
139. Commonwealth v. Licata, 591 N.E.2d 672, 675 (Mass. 1992); see also Graham,
supra note 55, at 510-11. Permitting admissibility of all details actually contained in the
initial complaint gives the jury, at the end of the victims direct examination, a more
complete picture of what actually transpired. Id.
140. Peters, 705 N.E.2d at 1122.
141. See Commonwealth v. Montanez, 788 N.E.2d 954, 959-60 (Mass. 2003).
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646 NEW ENGLAND LAW REVIEW [Vol. 42:631

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

142. Commonwealth v. Flebotte, 630 N.E.2d 265, 267 (Mass. 1994).


143. Commonwealth v. Scanlon, 592 N.E.2d 1279, 1283 (Mass. 1992).
144. Commonwealth v. Snow, 569 N.E.2d 838, 840 (Mass. App. Ct. 1991).
145. Scanlon, 592 N.E.2d at 1285; see also Commonwealth v. McGrath, 303 N.E.2d 108,
111 (Mass. 1973).
146. See Commonwealth v. Trowbridge, 647 N.E.2d 413, 421 (Mass. 1995).
147. Commonwealth v. Licata, 591 N.E.2d 672, 675 (Mass. 1992).
148. See Scanlon, 592 N.E.2d at 1285.
149. Trowbridge, 647 N.E.2d at 421-22 (reversing conviction because the judge failed to
properly instruct the jury about how fresh complaint evidence should be used by not
defining corroborate); see also Commonwealth v. Lorette, 643 N.E.2d 67, 70-71 (Mass.
App. Ct. 1994) (reversing conviction because the judge only gave the limiting instruction
during his final charge to the jury).
150. Trowbridge, 647 N.E.2d at 421.
151. See Commonwealth v. Dockham, 542 N.E.2d 591, 597 (Mass. 1989) (holding that
trial judge did not err in admitting three fresh complaint witnesses); see also
Commonwealth v. Kirkpatrick, 668 N.E.2d 790, 795 (Mass. 1996) (allowing five fresh
complaint witnesses to testify).
152. Commonwealth v. King, 834 N.E.2d 1175, 1190 (Mass. 2005).
153. LIACOS, BRODIN, & AVERY, supra note 128, at 383.
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2008] COMMONWEALTH V. KING 647

been given . . . in response to questions, which were not shown to be of a


suggestive or leading character.154 A victims answers to a police officers
questions, for example, are voluntary and admissible as fresh complaint
evidence.155 Even a childs complaint extracted from his aunts persistent
questioning was deemed voluntary, and thus admissible as a fresh
complaint.156

3. The SJC Questions the Viability of the Fresh Complaint


Rule.
In 1991, the SJC first began to question the continued viability of
the fresh complaint rule.157 The court expressed concern that piling on of
details from several fresh complaints may intensify the risk that jurors will
use these details as substantive evidence.158 The court also endorsed the
recurring concern by stating that it was troubled by the sexist reasoning
behind the theoretical underpinning of the fresh complaint rule.159 The
court was skeptical of the rule because it assumes that victims who were
actually raped will complain and those who do not complain consented to
the assault.160 The court acknowledged that the parties did not challenge the
fresh complaint rule facially, but invited future parties to give the court an
opportunity to reassess the rule.161
Less than one year later, the SJC once again questioned the integrity
of the fresh complaint rule.162 The court stated that it strongly disagree[s]
with the notion that a rape victim naturally will complain of an attack soon
after it occurs.163 The court concluded that victims may rightfully be
reluctant to discuss the uncomfortable details of a sexual attack, many
victims choose to never complain, and the lack of a complaint does not
necessarily imply lack of a rape.164 The court stated that it was
[t]roubled . . . by [the] doctrine which has its origins in outmoded, and

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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648 NEW ENGLAND LAW REVIEW [Vol. 42:631

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

II. KING DISCARDS THE INADEQUATE FRESH COMPLAINT RULE AND


COINS THE FIRST COMPLAINT DOCTRINE

A. Facts of the Case


A jury convicted Thomas S. King of forcible rape of a child under
sixteen years of age.168 The evidence presented at trial led the jury to
conclude that the defendant committed this aforementioned crime.169 On a
day in February 2002, the defendant asked his four-year old daughter to
lick or scratch his penis to relieve his itch.170 The young daughter complied
with her fathers request and licked his penis, applying bubble-gum
toothpaste because she did not like the taste.171 The victim told her mother
about the incident sometime between one day and one week later.172 On
February 19, 2002, the victim and her mother spoke with a Brockton
detective about the incident.173
The prosecutor for the Commonwealth decided to call the victims
mother and the Brockton detective to testify as fresh complaint
witnesses.174 The judge limited the mothers testimony to only a few details
of the victims complaint to prevent any prejudice to the defendant.175 The
defendant appealed his conviction on five grounds, but most importantly,
for purposes of this Comment, the defendant argued that the admission of
the fresh complaint testimony of the victims mother and the detective
violated the fresh complaint rule.176 Ultimately, the SJC concluded that the

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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2008] COMMONWEALTH V. KING 649

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

B. Justifications and Components of the First Complaint Doctrine


The SJC embarked upon its justification of modifying the fresh
complaint rule into the Doctrine by asserting that victims often do not make
a prompt complaint of the rape they suffered for reasons such as shame,
fear, or concern they will not be believed.180 The SJC acknowledged that it
gathered only a meager amount of research on jurors perceptions of rape
victims, but concluded that some jurors may still believe that real rape
victims promptly disclose a sexual attack.181 Victims may delay
complaining about sexual assaults and consequently face allegations that
they have fabricated their stories.182 Victims are subjected to these
allegations of fabrication as a result of multiple biases that jurors harbor
about rape allegations.183 The SJC stated that, while many jurors may no
longer harbor biases about rape victims, some jurors may still assume that
victims will immediately disclose a sexual assault and that the absence of
a timely complaint suggests fabrication of the assault.184 Modification of
the fresh complaint rule into the form of the Doctrine, as opposed to an
outright abolishment of the fresh complaint rule, is necessary to address
these possible biases that jurors may have regarding delayed reporting of a
sexual assault or about sexual assault victims in general.185

177. Id. at 1181, 1193.


178. See id. at 1181.
179. Id. The components of the First Complaint Doctrine will be discussed in greater
detail below. See infra Part II.C.
180. See King, 834 N.E.2d at 1194. The SJC also cited many other authorities that
support the belief that several rape victims do not report the complaint promptly. Id. at 1194
n.18.
181. Id. at 1194.
182. See id. at 1196.
183. Id. at 1194-95 (stating that jurors may believe that those who wear revealing
clothing, consume alcohol or drugs, or have promiscuous lifestyles cannot be real victims,
forced sex by a spouse or previous partner is not real rape, and that false accusations of rape
are more common than other violent crimes).
184. Id. at 1196.
185. See King, 834 N.E.2d at 1196.
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650 NEW ENGLAND LAW REVIEW [Vol. 42:631

The SJC also justified adoption of the Doctrine, instead of simply


abolishing the fresh complaint rule, by stating that the rules of evidence do
not tackle juror biases and stereotypes effectively.186 The spontaneous
utterance exception is inadequate because rape victims infrequently
respond to the startling [assault] . . . without any opportunity for reflective
thought.187 In addition, a victims prior consistent statements have very
little utility, because only prior consistent statements made before the
victims alleged motive to lie are admissible.188 Lastly, limiting the
prosecution to introducing the victims prior consistent statements only
after the victims credibility has been tarnished can cause unwarranted
prejudice to the Commonwealth.189
The SJC determined that requiring a fresh complaint as a condition to
admissibility does not cure the problem of jury stereotypes in sexual assault
cases that inspired adoption of the fresh complaint rule.190 The SJC
explained that requiring the complaint to be fresh is neglectful of the
current understanding that many truthful rape victims may not promptly
complain for a multitude of reasons.191 The freshness requirement will,
therefore, reinforc[e] discredited notions that victims will naturally
promptly disclose the assault.192 The SJC eliminated the fresh complaint
requirement as a condition to admissibility.193 The timing of the complaint
does not affect the admissibility of the complaint into evidence, but is a
factor the jury may consider in weighing the [victims] testimony.194
The SJC concluded that the testimony of multiple complaint
witnesses may be harmful to both the victim and the defendant in sexual
assault cases.195 Repeated complaint testimony may improperly enhance the
victims credibility or prejudice the defendant by exposing the jury to
repeated accounts of the horrific details of an alleged [rape].196 The SJC
professed that the testimony of multiple complaint witnesses will not rebut
a jurors inference that the victim fabricated the story in any more of an
effective manner than the testimony of one complaint witness.197 The
possible adverse impact and limited utility that the testimony of multiple

186. See id.


187. See id.
188. See id.
189. Id.
190. Id. at 1197.
191. King, 834 N.E.2d at 1197.
192. Id.
193. Id.
194. Id.
195. See id.
196. Id.
197. King, 834 N.E.2d at 1197.
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2008] COMMONWEALTH V. KING 651

complaint witnesses posed persuaded the SJC to abandon the practice of


permitting the testimony of multiple complaint witnesses.198
The SJC concluded that the victims first complaint is most useful to
the jurys understanding of what motivated the victim to disclose the
assault and assessment of the victims credibility.199 Consequently, only the
first person that the victim complained to will be permitted to testify about
the victims complaint.200 Law enforcement officials, medical and social
work professionals can testify to the victims complaint, subject to the
limitation that they were the first to have been told about the assault.201
Lastly, judges may exercise discretion and allow a witness to testify that
was not the first person that the victim complained to when the first person
the victim complained to is unavailable, incompetent, or too young to
testify meaningfully.202
The SJC maintained one aspect of their former fresh complaint rule
that allows the witness to testify to the details of the victims complaint.203
Although most jurisdictions limit the testimony to the fact that the
complaint was made,204 the SJC explained that allowing all of the details of
the complaint into evidence provides the jury with the best opportunity to
assess the credibility of the victim.205 The SJC also justified admitting the
details of the complaint in their entirety because a partial complaint without
the details may discredit the [victims] testimony at trial as a recent
fabrication rather than to corroborate it, and undermine the central
purpose of the fresh complaint rule.206 Lastly, admission of the fact of the
complaint alone harbors the danger that the jury will summarily conclude
that the complaint is entirely consistent with the victims testimony.207
Massachusetts law now allows the first complaint witness to testify to
why the complaint was made at that particular time.208 This testimony is
pertinent to the prosecution because the defense will often argue that
delayed complaints suggest that the victim fabricated the story.209 The first
complaint witness can also testify to the circumstances surrounding the

198. See id.


199. Id. at 1198.
200. See id.
201. Id.
202. Id.
203. King, 834 N.E.2d at 1198.
204. See supra text accompanying note 83.
205. King, 834 N.E.2d at 1198.
206. Id. (quoting Commonwealth v. Blow, 348 N.E.2d 794, 797 (Mass. 1976)).
207. Id.
208. Id. at 1199.
209. Id.
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652 NEW ENGLAND LAW REVIEW [Vol. 42:631

complaint.210 The surrounding circumstances include the witnesss


observations of the [victim] during the complaint[,] the events or
conversations that culminated in the complaint[,] the timing of
the complaint[,] and other relevant conditions that might help a
jury assess the veracity of the [victims] allegations or assess the
specific defense theories as to why the [victim] is making a false
allegation.211

C. Simplification of the First Complaint Doctrine and Its Immediate


Impact
The aspects of the Doctrine can be categorized as follows: (1)
promptness or freshness is no longer a prerequisite to admissibility of the
victims complaint;212 (2) the timing of the complaint can be considered by
the jury when assessing the credibility of the victim;213 (3) the prosecution
can no longer call multiple complaint witnesses;214 (4) the prosecution can
only call the first person that the victim complained to save for limited
circumstances;215 (5) the first complaint witness can testify to the details of
the victims complaint;216 (6) the first complaint witness can testify as to
why the victim made the complaint and the surrounding circumstances
when the complaint was made;217 (7) the jury can only use the first
complaint evidence to assess the credibility of the victim and not as
evidence that the alleged assault actually occurred;218 and (8) first
complaint evidence is not admissible unless the occurrence of the assault or
the victims consent is at issue.219 The SJC stated that the virtue of the
Doctrine is that it will provide the jury with a more complete picture of
how the victims allegation arose and would enable the jury to make a
fairer and more accurate assessment of the validity of th[e] accusation.220
The Doctrine spawns immediate and obvious ramifications in the
prosecution of rape or sexual assault cases.221 Much to the delight of the
prosecutors, a court finding that the victims complaint was not reasonably

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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2008] COMMONWEALTH V. KING 653

prompt will no longer prevent prosecutors from introducing evidence that


the victim complained of the rape.222 The Doctrine is disadvantageous to
prosecutors, however, because it strips them of the discretion of calling the
complaint witness that they feel is most fit for presentation of the
Commonwealths case.223 This Comment seeks to address the potential
pitfalls inherent in the application of the Doctrine coined by the King
court.224

III. RAPE VICTIMS RESPONSES AND OBSTACLES TO THE PROSECUTION

A. Rape Victims May Elect to Not Report the Offense to


Authorities.
A victims responses after she has experienced a sexual assault or
rape may differ depending upon a number of factors.225 Generally, rape
victims tell someone about their need for help or safety,226 but victims may
hesitate to complain about an assault because they had previously been met
with inappropriate and inadequate response[s] when they reported the
rape to the authorities227 and subsequent prosecution of the perpetrator
often results in the revictimization of the survivor.228 Victims may also be
reluctant to report their rape because some police facilities lack private
interview rooms where victims feel more comfortable revealing what they
suffered.229 Lastly, victims may decide against reporting the incident to the
authorities because of [their] desire to protect [their] reputation from
being tarnished.230 Consequently, victims frequently decide to just cope
with what they experienced without legal intervention.231
Although many people assume that rape is only committed by

222. Id. at 1197.


223. See King, 834 N.E.2d at 1197.
224. See infra Part IV.
225. Daane, supra note 1, at 77 (listing age, life situation, personality, circumstances of
the rape, and victims attitude about rape as factors that can dictate how a rape victim will
respond).
226. Id. at 80.
227. Duncan Chappell, Forcible Rape and the Criminal Justice System: Surveying
Present Practices and Projecting Future Trends, in SEXUAL ASSAULT, supra note 108, at
18-19.
228. Gail Elizabeth Wyatt, Michael Newcomb & Cindy M. Notgrass, Internal and
External Mediators of Womens Rape Experiences, in RAPE AND SEXUAL ASSAULT III 29, 30
(Ann Wolbert Burgess ed., 1991).
229. See Chappell, supra note 227, at 13.
230. HUBERT S. FEILD & LEIGH B. BIENEN, JURORS AND RAPE 45 (1980).
231. Wyatt, Newcomb, & Notgrass, supra note 228, at 30.
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654 NEW ENGLAND LAW REVIEW [Vol. 42:631

strangers,232 the vast majority of rapes are actually committed by someone


that the victim is acquainted with, related to, or intimately involved with.233
Victims will often decide against reporting their rape in instances where the
victim knew the perpetrator.234 The victims often do not report rapes
committed by acquaintances because they feel that they gave the
perpetrator a false impression that they consented to the sex and, therefore,
they take responsibility for this misunderstanding.235 The victims may
erroneously believe that their behavior brought about the rape and thus
attribute the blame to themselves for reasons such as wearing a short
skirt236 or letting the perpetrator walk them home.237 Lastly, even when
victims of acquaintance rape report the incident to the authorities, they may
not define, nor want to define what they experienced as rape.238

B. Emotions of Rape Victims Are Often Not What One Would


Expect.
The emotions of a rape victim can vary significantly immediately
after the attack and even several hours later239 as a result of Rape Trauma
Syndrome (RTS).240 Half of victims who suffer from RTS display
emotional excitement, demonstrated by crying, anxiety, and inappropriate
smiling.241 The remaining victims who suffer from RTS display
emotional flatness, remaining subdued, calm, and non-emotional.242

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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2008] COMMONWEALTH V. KING 655

The emotional response of a victim suffering from RTS is determined by


factors such as the personality of the victim, the nature of the rape, the life
experience of the victim, . . . and the relationship the victim has to the
offender.243 These emotional responses are counterintuitive because they
are inconsistent with how one might ordinarily expect a rape victim to
react.244

C. Rape Victims First Complaint of the Assault May be


Incomplete.
The first complaint that a rape victim utters may not be rich in detail
for several reasons.245 The trauma of the rape itself may cause the victim to
have trouble narrating what has happened to them, especially at first.246
The victim may understate the incident to the authorities because they are
shy or modest.247 The victim may also be hesitant to describe the nature of
the crime to the authorities because of concern that others may be
shock[ed].248 A proposal that victims merely report the assault and
battery portion of the rape to shield victims from embarrassment and guilt
would also yield incomplete first complaints.249 It is also possible that rape
victims incomplete first complaints may be a byproduct of police
procedures.250

[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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656 NEW ENGLAND LAW REVIEW [Vol. 42:631

In Florida a Rape Treatment Center was opened which had a


Crisis Intervention Center that rape victims could call with concerns or
allegations.251 If victims contacted the Crisis Intervention Center first, their
complaint may not be replete with detail because the crisis workers
merely ask[] basic . . . questions and provide[] initial supportive
contact.252 Where the victim is a child, the first complaint may contain
very little detail because the child may not feel comfortable discussing the
assault until time progresses.253 First complaints may also be very
incomplete because, in the first six months following the assault, some
victims suffer from short-term memory loss.254 Lastly, as the King court
stated, the first complaint may portray only a limited or censored account
of the [rape], because the rape is often frightening and traumatic for
victims.255

D. Some Victims Do Not Realize What They Experienced Was


Rape.
When a rape victim first explains to someone what they have
experienced, the explanation may not come in the form of a complaint
because the victim may be unaware that they were actually raped.256
Research has indicated that some rape victims do not conceptualize their
experience[] as rape.257 Victims may not perceive the incident as rape
regardless of whether the perpetrator is an acquaintance or a stranger.258 In
fact, it is more likely that the victim will not perceive the incident as rape
when the perpetrator is a non-stranger.259 This may be the result of the
prevailing notion that males are inherently innocent while females are
inherently guilty.260 In addition, victims who have suffered a drug-

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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2008] COMMONWEALTH V. KING 657

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

E. Inherent Skepticism of the Credibility of Rape Victims


The credibility of a rape victim is a major issue in virtually every rape
case.264 Skepticism of their credibility is a common issue that troubles
prosecutors.265 Such skepticism is the progeny of notions that womens
accusations of sexual assault were merely motivated to acquire money,
marriage, or revenge, or because the women subconsciously desired to
have sex with the alleged perpetrator.266 Rape victims credibility is also
subject to skepticism because cultural forces lead people to blame the
victim.267
Jurors are especially prone to question the credibility of a victim
when the circumstances of the alleged incident are not consistent with
myths that people harbor about rape.268 This mythical image consists of
jurors generalized assumptions that the perpetrator is African American,
Hispanic, poor, or uses poor grammar269 and that real rape is committed
by a stranger who usually carries a weapon and causes serious injuries.270

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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658 NEW ENGLAND LAW REVIEW [Vol. 42:631

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

F. Prosecutors Often Rely on the Victims Testimony as Their


Primary Evidence.
When prosecuting the rape of a child, the victim is often the only
witness to the crime.273 Similarly, in date rape274 cases the victim will
almost always be the sole witness to the crime.275 Since the victim is often
the only available witness, [the] prosecution almost always relies heavily
on the [victims] testimony.276 The victim is often the star witness in a
rape prosecution277 and their testimony is central to the success of a rape
prosecution.278 Since the victims testimony is such an integral, and
possibly the sole, component in the prosecution of a rape charge that
prosecutors rely heavily upon,279 prosecutors can ill afford to be limited in
their selection of other evidence that may be available.

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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2008] COMMONWEALTH V. KING 659

IV. RIGID APPLICATION OF THE FIRST COMPLAINT DOCTRINE MAY LEAD


TO UNINTENDED RESULTS

A. The First Complaint Doctrine May Relegate Prosecutors to


Presenting Unpersuasive Incomplete Complaints as Evidence.
As noted above, rape victims first utterances of what they
experienced may be very incomplete and devoid of much detail for several
reasons.280 An incomplete first complaint is especially common in the case
where the victim is a young child.281 Interestingly, the King court went so
far as to emphasize that a rape victims first complaint may lack crucial
details,282 yet did not hesitate in coining the inflexible Doctrine without
exception for the commonplace situation where the victim was too startled
to competently explain what he or she had suffered.283 Since the SJC made
a list of exceptions where a non-first complaint will be admissible,284 it can
be assumed that an incomplete first complaint is not such an exception on
the basis of expressio unius est exlcusio alterius.285 The SJC has previously
stated that admitting a partial statement without details may actually have
the effect of discrediting the victims rather than bolstering their
credibility.286 A victims first complaint may very well be missing a great
amount of detail,287 and yet the Doctrine only allows the prosecution to
admit this factually bare complaint288 that may tend to discredit the
victim.289
The King court rightfully acknowledged that a victims first

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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660 NEW ENGLAND LAW REVIEW [Vol. 42:631

complaint may be delayed because of reasons such as shame, fear, or


concern they will not be believed.290 It would seem to be a logical
assumption that the same shame, fear, or concern they will not be
believed may also cause the victim to express an incomplete first
complaint. The victims first complaint may be lacking in detail because of
the extreme stress and . . . acute medical conditions, including memory
impairment that are often associated with sexual assault.291 Memory
impairment is one of the symptoms that rape victims experience that makes
them less credible in the eyes of [jurors].292 Unfortunately, the Doctrine
will sometimes limit the prosecution to presenting incomplete
complaints,293 and consequently prompt the jury to believe that the victim
has suffered from memory impairment and disbelieve the victims
testimony.294
An incomplete first complaint may be troublesome for prosecutors
because some jurors arrive at trial only willing to accept as truthful those
stories that have a certain degree of complexity, extremity, accuracy, and
certainty.295 The jurys verdict of guilty or not guilty is often the product
of certain elements of a story.296 This is especially prevalent in rape cases
where jurors only entertain particular stories . . . to arrive at a legal
decision or verdict.297 Because the King court is mightily concerned with
providing the jury with as much information [as possible] concerning the
initial complaint,298 it is perplexing that the prosecution may be limited to
presenting incomplete complaints299 that may lack a certain element[]
that the jury will associate with guilt or innocence.300
In the event that the victims first complaint is so deficient of detail
that it may tend to discredit the victim,301 prosecutors may elect to not use
such evidence, thus inhibiting the prosecution from rebutting juror
inferences that no complaint was made, and therefore, thwarting one of the
main justifications for adoption of the fresh complaint rule.302 Considering

290. King, 834 N.E.2d at 1194.


291. Seidman & Vickers, supra note 101, at 481-82.
292. Id. at 482.
293. See supra text accompanying notes 287-289.
294. See Seidman & Vickers, supra note 101, at 482.
295. See Olsen-Fulero & Fulero, supra note 264, at 419.
296. Id. at 417.
297. Id. at 418.
298. Commonwealth v. King, 834 N.E.2d 1175, 1199 (Mass. 2005).
299. See supra text accompanying notes 287-289.
300. See Olsen-Fulero & Fulero, supra note 264, at 417.
301. See supra text accompanying notes 287-289.
302. See supra text accompanying notes 55, 57-58.
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2008] COMMONWEALTH V. KING 661

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

B. The First Complaint Doctrine May Limit Prosecutors to


Presenting Complaints That Have the Effect of Discrediting the
Victim.
Jurors often come to trial with a preconceived template as to how
truthfully rape victims ought to respond to the trauma.307 For instance,
jurors expect truthful rape victims to disclose what they experienced in a
state of hysteria.308 Contrary to this and other prevailing juror views,
there is not a typical manner in which a true rape victim should act.309
The emotional responses of a rape victim can vary drastically depending
upon a great number of circumstances.310 It is possible that the victim may
display little or no emotion;311 it is also possible that the victim may even
be smiling in the aftermath of the attack.312
The immediate emotional responses of rape victims raise concerns
regarding the effectiveness of the Doctrine because such responses are
often inconsistent with how lay persons believe true victims respond.313
Additionally, these counterintuitive emotional responses may have the

303. See supra Part III.E.


304. See supra Part III.F.
305. See Spears, supra note 106, at 281. The most crucial discretionary decision made
by the prosecutor is the initial decision to prosecute or not. Prosecutors have nearly
unfettered discretion in making this decision[.] Id. at 282.
306. See David Aaron, Note, Ethics, Law Enforcement, and Fair Dealing: A Prosecutors
Duty to Disclose Nonevidentiary Information, 67 FORDHAM L. REV. 3005, 3033 (1999).
307. See Curcio, supra note 270; Garrison, supra note 240, at 596 (explaining the
existence of stereotypical perceptions of how rape victims are expected to act).
308. Seidman & Vickers, supra note 101, at 469.
309. Curcio, supra note 270, at 612.
310. See supra Part III.B.
311. See supra note 242 and accompanying text.
312. See supra text accompanying note 241.
313. See supra text accompanying note 244.
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662 NEW ENGLAND LAW REVIEW [Vol. 42:631

damaging effect of unfairly discredit[ing] the victim.314 These emotional


responses may also be interpreted as strong evidence that the victim is
lying.315 Counterintuitive emotional responses of victims invoke the
Doctrine because the complaint witness will not only testify to the details
of the complaint, but also testify to the circumstances surrounding the
initial complaint, which includes the witnesss observations of the
[victim] during the complaint.316 It is not farfetched to foresee a juror
becoming skeptical of a rape victims credibility and apprehensive to
convict the defendant if, for example, a complaint witness, while testifying
to his or her observations of the victim during the complaint, states that the
victim was smiling while explaining what she had suffered.317
Consequently, the Doctrine may produce the negative result of limiting
prosecutors to introducing a victims complaint accompanied by emotional
manifestations that are inconsistent with how jurors expect a truthful rape
victim to act.318 As such, complaints made after the first complaint that may
have characteristics that a juror associates with a truthful rape victim will
be rendered inadmissible.319

C. The First Complaint Doctrine May Limit Prosecutors to


Presenting Evidence That Is Not Traditionally Considered a
Complaint.
In order to corroborate the victims testimony, the Doctrine operates
to limit the prosecution to calling the first person that the victim
complained to as a witness.320 The King court never took the opportunity to
define complaint or explain what type of words spoken and accompanying
demeanors rise to the level of a complaint.321 Failing to define a term that
determines the status and admissibility of evidence is not a novel issue in

314. Hogan, supra note 239, at 557.


315. Id. at 533. Some will assume that a rape did not occur because the victim is not
crying and hysterical, but rather calm and subdued. Id. at 532.
316. Commonwealth v. King, 834 N.E.2d 1175, 1199 (Mass. 2005).
317. See Nicole Rosenberg Economou, Defense Expert Testimony of Rape Trauma
Syndrome: Implications for the Stoic Victim, 42 HASTINGS L.J. 1143, 1167 (1991)
(explaining that many jurors may become reluctant to convict the defendant if they hear that
the victims behavior that followed the alleged rape was inconsistent with how they would
anticipate rape victims to respond).
318. See supra text accompanying notes 307-312.
319. See Garrison, supra note 240, at 609 (explaining that rape victims were found to
experience greater trauma in a follow-up visit at a treatment center when they appeared to
have suffered minimal or no trauma in their initial visit).
320. King, 834 N.E.2d at 1197; see supra Part II.B.
321. See generally King, 834 N.E.2d 1175 (Mass. 2005) (neglecting to define or give
examples of a rape victims complaint).
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2008] COMMONWEALTH V. KING 663

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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664 NEW ENGLAND LAW REVIEW [Vol. 42:631

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

D. The First Complaint Doctrine Bars the Introduction of


Subsequent Complaints That May Be More Reliable.
The Doctrine prohibits the prosecution from calling anyone as a
witness that the victim complained to subsequent to the first person.331 Yet,
the King court provided no evidence or findings that would support a
conclusion or even suggest that the victims subsequent complaints are any
less reliable than the victims initial disclosure.332 In fact, there are certain
situations where the victims subsequent complaints will be more accurate
and reliable.333 For instance, as investigations progress, the victims may
correct[] the timeline of the events and [a]s time progresses, child
[victims] may feel more comfortable talking about the assault . . . .334 In
addition, later complaints may be more reliable because victims first
complaints are often incomplete for several reasons.335 In adopting the
Doctrinewithout any consideration of the reliability of rape victims

329. See 1 MASSACHUSETTS SUPERIOR COURT CRIMINAL PRACTICE JURY INSTRUCTIONS


2.12, at 2-84 (Frances A. McIntyre ed., 1999) (noting that jury instructions require the
Commonwealth to prove that sexual intercourse was accomplished by compelling the
complainant to submit by force or threat of bodily injury and against (his/her) will beyond
a reasonable doubt in order to return a guilty verdict).
330. Complaint is defined as [a] cry or loud utterance or series of utterances of pain,
rage, or sorrow . . . the act or action of expressing protest, censure or resentment: expression
of injustice. . . . WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 464 (1986).
331. Commonwealth v. King, 834 N.E.2d 1175, 1181 (Mass. 2005).
332. See id. at 1199 (explaining that evidence of the victims initial disclosure will give
the jury the best perception of what provoked the victim to come forward, how the
accusation arose, and the victims credibility, but failing to discuss why subsequent
complaints would be any less reliable in allowing the jury to assess the validity of the
victims allegations).
333. See Hogan, supra note 239, at 541 (explaining that as an investigation progressed the
victims revealed more of the assaults in greater detail and corrected the timeline of the
assaults); see also Bonnie L. Katz, The Psychological Impact of Stranger Versus
Nonstranger Rape on Victims Recovery, in ACQUAINTANCE RAPE: THE HIDDEN CRIME,
supra note 232, at 252 (explaining that rape victims are unable to actively deal with their
feelings about the rape until they are functioning normally).
334. Hogan, supra note 239, at 541.
335. See supra Part III.C.
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2008] COMMONWEALTH V. KING 665

subsequent complaintsthe King court turned a blind eye to one of the


central underpinnings of the rules of evidence, ensuring reliability of
evidence.336

E. The First Complaint Doctrine Bars the Introduction of Multiple


Complaints That May Not Be Harmful to the Defense.
The Doctrine prohibits the prosecution from introducing the
testimony of multiple witnesses to whom the victim complained.337 Prior to
the King decision, the prosecution was permitted to introduce the testimony
of multiple complaint witnesses.338 The King court decided to discontinue
the practice of permitting the prosecution to call multiple complaint
witnesses because they feared that it may unfairly enhance [the victims]
credibility and prejudice the defendant by allowing the jury to hear
repeated details of the victims allegations.339 However, the King court
could only point to a single, specific case where the testimony of multiple
complaint witnesses spawned a miscarriage of justice.340
The King courts concern that the testimony of multiple complaint
witnesses will cause the unfair result of allowing the jury to hear repetitive
details of the alleged rape will often be a non-issue because multiple
witnesses may have different, non-repetitive details to testify to as a result
of victims frequent incomplete complaints.341 Multiple complaint
witnesses may also be able to offer different details of what the victim has
alleged because rape victims often suffer from Rape Trauma Syndrome
which causes memory loss.342 In the event that there is some overlap in the

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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666 NEW ENGLAND LAW REVIEW [Vol. 42:631

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.

F. The First Complaint Doctrine Permits the Jury to Take a Factor


into Account, Wholly Unrelated to Truthfulness, to Assess the
Victims Credibility.
The Doctrine provides that the jury shall be instructed that they can
weigh a victims delay in making a complaint as a factor to assess the
victims credibility.345 Such an instruction is mind-boggling because the
King court acknowledged that rape victims may delay complaining for a
host of reasons,346 which was the main justification for disposing of the
prompt requirement as a condition to admissibility.347 A rape victims delay
in complaining bears no relation to the truthfulness of the allegation,348 and
the King court concurred that a victims delay in complaining has nothing
to do with the validity of the claim of [rape].349 Since a delayed complaint
is not indicative of an untruthful victim, this instruction will just perpetuate
juror beliefs in the myth that only victims that promptly complain are
truthful.350 Finally, jurors may focus on the timing of the complaint on their
own without such instruction,351 so giving the instruction may have the
effect of leading jurors to equate[] promptness with veracity.352

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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2008] COMMONWEALTH V. KING 667

G. Proposed Revisions to the First Complaint Doctrine


The SJC should consider adopting minor alterations to the Doctrine.
These minor alterations are likely to extinguish the problems posed by the
Doctrine, but will not erode the core aspects and goals of the Doctrine.
Strict application of the Doctrine will sometimes force prosecutors to
decide between introducing an incompleteand arguably futilevictim
complaint or no complaint at all.353 Strict application of the Doctrine may
also induce prosecutors to introduce a victims complaint that is
accompanied by characteristics that tend to discredit the victim.354 In these
instances, the SJC should carve out an exception that would allow
prosecutors to introduce subsequent victims complaints since the first
complaint will lack reliability.355 Furthermore, where the victims
complaint is accompanied by counter-intuitive characteristics,356 and the
prosecutor does not elicit these characteristics from the first complaint
witness on direct examination, the judge should prohibit defense counsel
from probing into these characteristics on cross-examination.357
The SJC should also define complaint to alleviate any difficulty that
lower courts may encounter when the victims statement to a witness does
not jive with ones common interpretation of a complaint.358 The Doctrine
should be triggered when the victims statement is a complaintnot
merely a disclosure. The Doctrine should also provide judges with
flexibility to allow multiple witnesses to testify when the details of the
victims complaints are exceedingly fragmented and allow the judges to
have the discretion to limit the testimony and exclude repetitious details.359
Tacking the victims complaints together with the testimony of multiple
witnesses will allow for corroboration of all of the elements of the crime
charged.360 Finally, the SJC should eliminate the jury instruction that jurors

353. See supra Part IV.A.


354. See discussion supra Part IV.B.
355. Cf. THOMAS D. CRANDALL & DOUGLAS J. WHALEY, CASES, PROBLEMS, AND
MATERIALS ON CONTRACTS 369-71 (4th ed. 2004) (explaining that the Statute of Frauds,
which requires a writing for certain type of contracts, is the exception to the usual rule that
oral contracts are enforceable, because oral statements regarding the existence of these types
of contracts are unreliable).
356. See discussion supra Part III.B.
357. See FED. R. EVID. 611(b) (explaining that cross-examination should be restricted to
the subject matter of the direct examination).
358. Cf. Davis v. Washington, 547 U.S. 813, 821-22 (2006) (defining testimonial
statements for purposes of admissibility when the evidence is challenged under the
Confrontation Clause). See Part IV.C, for an explanation of why rape victims statements
are not always consistent with ones common understanding of what a complaint is.
359. See Commonwealth v. King, 834 N.E.2d 1175, 1190 (Mass. 2005).
360. See MASS. GEN. LAWS ANN. ch. 265 22 (West 2007) (requiring compulsion by
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668 NEW ENGLAND LAW REVIEW [Vol. 42:631

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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2008] COMMONWEALTH V. KING 669

Such an option is even more unsettling because of the common situation


when the prosecutors only other evidence is the testimony of the victim.372
Finally, when the Doctrine induces prosecutors to decide against
introducing the victims first complaint, one of the central justifications of
the fresh complaint rule of rebutting juror inferences that no complaint was
made373 will be eviscerated.
Juror skepticism of rape victims and a built-in focus on the victim in
the prosecution of a rape charge are unfortunate realities. There is a strong
possibility that strict application of the Doctrine will intensify these
realities and limit prosecutors to introducing first complaint evidence that
may have the adverse effect of tarnishing the already fragile credibility of
the victim.374 The problem of automatic vulnerability of the victims
credibility, that in part justified adoption of the fresh complaint rule, may
be perpetuated by application of the Doctrine.
Unfortunately, the King court neglected to define the Doctrine in a
manner that would have allowed trial courts to apply it with relative ease.375
The possibility remains that the Doctrine will be applied such that the jury
will hear evidence that would not fit the mold of a complaint.376 The
Doctrine is also troubling because it turns its back on the indispensable
policy of ensuring the reliability of evidence.377 Finally, the King court
hastily decided that prosecutors could no longer call multiple complaint
witnesses. The King court reached this decision with sparse evidence that
such practice caused any harm and without considering the virtue of the
practice.378
There is an implicit contradiction in the Doctrine because the King
court acknowledged that a rape victims delayed complaint may bear no
relation to the truthfulness of the allegation,379 and yet the Doctrine invites
the jury to consider the delay in evaluating the victims credibility.380 This
Comment has illustrated how the Doctrine will not always comport with
the sad but true realities of juror expectations and rape victims first
responses. Unfortunately, the King court failed to realize that rigid
application of the Doctrine may lead to injustice in the prosecution of a
great deal of rape cases.

372. See supra text accompanying notes 273-279.


373. See supra text accompanying note 58.
374. See supra Part IV.B.
375. See supra text accompanying note 321.
376. See supra Part IV.C.
377. See supra Part IV.D.
378. See supra Part IV.E.
379. See Commonwealth v. King, 834 N.E.2d 1175, 1194 (Mass. 2005).
380. See supra Part IV.F.

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