The
law recognizes that people might assume that anyone subjected to a sexual
offense would complain within a reasonable time to someone whom (he/she) would
ordinarily turn for sympathy, protection or advice. If there was no evidence that (name)
made such a complaint, some might
conclude that no sexual offense occurred.
As
a result, in cases involving an allegation of a sexual offense, the State is
permitted to introduce evidence of the complaint.[3] The only reason that the evidence is
permitted is to negate the inference that (name) failed to confide in anyone about the sexual
offense. In other words, the narrow
purpose of the fresh-complaint rule is to allow the State to introduce such
evidence to negate any inference that (name)
failed to tell anyone about the sexual
offense, and that, therefore, (his/her) later assertion could not be believed.[4]
A
fresh-complaint is not evidence that the sexual offense actually occurred, or
that (name) is credible. It merely serves to negate any inference that
because of (his/her) assumed silence, the offense did not occur.[5] It does not strengthen (his/her)
credibility. It does not prove the
underlying truth of the sexual offense.
A fresh-complaint only dispels any negative inference that might be made
from (his/her) assumed silence.[6]
In
determining whether a complaint was in fact made, you may consider all the
relevant factors in evidence. You may
consider your observations of the age and demeanor of (name), your evaluation of
(his/her) background, including (his/her) relationship, if any, with the
defendant and the nature of (his/her) relationship with (the person to whom the complaint was
made). In this context, you may consider
the timeliness of the complaint and the likelihood that (name) would complain under the circumstances
described. If there was a delay in
making the complaint, you may consider whether any circumstances existed which
would explain the delay. You may
consider the conduct and demeanor of (name) at the time of the complaint as well as
(his/her) physical or mental condition (including any evidence of physical
injury).
You
may also consider whether the complaint was volunteered by (name) or whether it was the result of interrogation. If you find that (name) made the
complaint after being questioned, you may consider what prompted the
questioning, whether the questions were in response to some conduct, emotional
or physical condition, statement or pattern of behavior of (name) , or whether they were
initiated by the questioner without any provocation. You may also consider the nature and extent
of the questions themselves and any motive on the part of the person who asked
them in determining whether the complaint was truly that of (name) or was the product of suggestion by others.
It
is, of course, up to you to determine what the facts are with regard to the
circumstances of the complaint and what weight to give to these facts in
determining whether or not a complaint was made.
As
I have indicated earlier, this testimony was permitted for a limited
purpose. The making of a complaint is
not an element of the offense. Proof
that a complaint was made is neither proof that the sexual offense occurred nor
proof that (name) was truthful. It merely dispels any negative inference that
might arise from (his/her) assumed silence.
It eliminates any negative inference that (his/her) claims of having
been sexually assaulted are false because of (his/her) assumed failure to have
confided in anyone about the sexual offense.
[1] See State v. Hill, 121 N.J.
150 (1990) and State v. Bethune, 121 N.J. 137 (1990). In State v. Hill, supra at 166
and 170, the Supreme Court recognized that the fresh-complaint doctrine was
“rooted in sexist notions of how the “normal” woman responds to rape.” It acknowledged that a woman might, in fact,
“respond to rape in a variety of ways, including silence.” In State v. Bethune, supra at
148, the Court noted that a young child might, also, “not tell anyone of sexual
abuse for a myriad of reasons, including fear, ignorance, or confusion.” The Court, nonetheless, concluded “that women
victims are better served by the continuance of the fresh-complaint doctrine
than by its elimination.” State v.
Hill, supra at 170. It served
to neutralize jurors’ negative inferences concerning the woman’s silence after
having been raped. This model charge
provides instructions on “fresh-complaint” based on the state of the law as it
is set forth in these two cases.
The
Supreme Court also referred “to the Court’s standing Committee on the Rules of
Evidence and the Court’s Criminal Practice Committee the task of recommending
proposed procedures relating to the admissibility in the State’s case of
fresh-complaint evidence, defendant’s right to elicit and rely on the absence
of fresh-complaint, and the desirability of special instructions dealing with
the issue.” Ibid at 166. The Committee issued its report for the
Court’s consideration on March 22, 1996.
[3] See State v. Balles, 47 N.J.
331, 339 (1966), where the Court found acceptable, “she said Mr. Balles had put
his hands down her panties and had touched here.” See also State v. Gambutti, 36 N.J.
Super 219, 228 (App. Div. 1955) and State v. Saccone, 7 N.J.Super.
263, 266 (App. Div. 1950), “enough may be given in evidence to show the nature
of the complaint, even though it involves to some extent the particulars
thereof, and that the rule is not violated by evidence as to the time and place
where the complaint was made, the circumstances under which it was made, and
the person to whom made, the condition of the victim when making the complaint,
the conduct of the prosecutrix at the time she made complaint, and that she
exhibited, if such was the fact, marks of violence and other like
indications...” See also State v.
J.S., 222 N.J.Super. 247, 254 (App. Div. 1988) where the court
concluded that the fresh-complaint testimony in that case improperly contained
“highly provocative” details not otherwise supported in the record.