Fresh Complaint

A fresh complaint is one made voluntarily and reasonably promptly after the sexual abuse.

Do you know what voluntarily is?

What is reasonably promptly?  One day?  One year? Three years?

In Massachusetts, there is no fixed time within which a child must complain that he or she has been sexually abused or raped, but there are certain parameters the child's complaint has to meet.

A complaint made, for instance, eight years after an alleged abusive incident is not prompt and not fresh.

But a complaint within one year by a child who had been threatened and ordered not to tell about about the abuse might be reasonably prompt and fresh . . . if the perpetrator had continued to live in the house or had access to the child until shortly before the child complained.

Whether a complaint made two years after an incident is reasonably prompt is right on the line . . . and that line is not a bright one: different judges interpret the word reasonably differently.

To make that decision, a judge - -not a jury -- would have to get answers to certain questions:  

• How old was the child?
• Was the excuse for the child's delay reasonable?
• Had there been too much opportunity for invention or distortion of the event to occur?
• How long had the alleged perpetrator been away from the child?
• Was there a specific threat which compelled the child to be silent?
• Did the excuse for the child's delay outweigh the danger of invention or distortion?
 

If on the rare offchance the judge found that the excuse was unreasonable and the complaint stale, the DA should not be able to use a fresh complaint witness to corroborate the child's testimony.

CAVEAT: When there is no evidence to prove when the child was raped, a DA will generally choose a broad range of dates.  The alleged perpetrator might have an alibi for one date but would likely not have one for every day during a period of, say, three years -- with the exception, for instance, of incarceration or prolonged hospitalization.
 

Fresh Complaint Witness
 
A fresh-complaint witness is the first person to whom the child complained of sexual abuse or rape (digitally, orally, or penilely).

Fresh Complaint Testimony
 
Fresh complaint testimony is testimony by the fresh complaint witness.  Is it hearsay?  What is hearsay?  Hearsay is the repetition of an out-of-court statement offered for the truth of the matter.

Ernie said, "Little Johnny told me the light it was red."

The light may have been green.

Ernie wants you to believe the light was red, not just that Johnny told him that it was.

Or, Ernie does not care what you believe, he is just telling you what he heard from his little boy.

If Johnny were the driver of the car and the defendant in an accident case, and he told Ernie the next day that the light was red, you could question Johnny:  Was he being truthful or did he use the day to think and change the facts to save himself?  For this reason, Ernie's statement would likely be deemed hearsay of a self-serving statement on Johnny's part and not be admitted into evidence.

If, however, Johnny crawled out of the car wreck into Ernie the fireman's arms and said in a distraught state, "But the light was red," the statement might be construed as an "excited utterance" and allowed into evidence for the truth of the statement.   RATIONALE:  It was more likely that Johnny had no time to fabricate a story between the time of the accident and the time he crawled into Ernie the Fireman's arms..
 

This means that the child must take the stand before the fresh complaint witness does.  Otherwise there is nothing to corroborate.

Corroborative testimony alone may not be proof of the crime.

CAVEAT: A judge should instruct the jury before the fresh complaint witness testifies that the testimony they are about to hear is only corroborative, but it is something some judges overlook.  So be alert to the need to make your objection.

CAVEAT: The testimony of the fresh complaint witness must not go beyond the scope -- legal shorthand -- of what the child stated.  That is, the witness's statements should not be offered to add details about which the child had not testified.

EXAMPLE:  If the child did not testify to oral sex, the witness should not be allowed to testify to oral sex.  In the real world, this is not always what happens.  

YOU:  Objection, Your Honor.
COURT: Basis?
YOU:  Beyond the scope.
 

CHILD: He put his penis into my mouth.
 

DA (leading child):Did he put his penis into your mouth?
CHILD (adopting DA's statement):  Yes.
 

WITNESS:  She told me he put his penis into his mouth and it tasted yucky.

YOU:  Objection, Your Honor.
COURT: Basis?
YOU:  Graphic details.