Section 413.    First Complaint of Sexual Assault

Testimony by the recipient of a complainant’s first complaint of an alleged sexual assault regarding the fact of the first complaint and the circumstances surrounding the making of that first complaint, including details of the complaint, is admissible for the limited purpose of assisting the jury in determining whether to credit the complainant’s testimony about the alleged sexual assault, not to prove the truth of the allegations.

NOTE

This section is taken nearly verbatim from Commonwealth v. King, 445 Mass. 217, 218–219, 834 N.E.2d 1175, 1181 (2005), cert. denied, 546 U.S. 1216 (2006). In Commonwealth v. King, the Supreme Judicial Court replaced the doctrine of “fresh complaint” with that of “first complaint.” Id. at 241–248, 834 N.E.2d at 1196–1201. The “first complaint” doctrine only applies if the complainant is available for cross-examination about the first complaint. Id. at 247 n.27, 834 N.E.2d at 1200 n.27. “The timing by the complainant in making a complaint will not disqualify the evidence, but is a factor the jury may consider in deciding whether the first complaint testimony supports the complainant’s credibility or reliability.” Id. at 219, 834 N.E.2d at 1181. See generally id. at 247–248, 834 N.E.2d at 1200–1201 (Supreme Judicial Court provided a jury instruction that must be given when the first complaint evidence is offered and in the final instructions).

Where feasible, the first person told of the alleged sexual assault should be the initial or first complaint witness to testify. In circumstances “where [that person] is unavailable, incompetent, or too young to testify meaningfully, the judge may exercise discretion in allowing one other complaint witness to testify.” Id. at 243–244, 834 N.E.2d at 1198. The first complaint witness is the only complaint witness permitted to testify for the Commonwealth. Id. at 245, 834 N.E.2d at 1199. “Law enforcement officials, as well as investigatory, medical, or social work professionals, may testify to the complaint only where they are in fact the first to have heard of the assault, and not where they have been told of the alleged crime after previous complaints or after an official report.” Id. at 243, 834 N.E.2d at 1198.

In Commonwealth v. Murungu, 450 Mass. 441, 445–447, 879 N.E.2d 99, 103–104 (2008), the Supreme Judicial Court addressed two exceptions to the general rule that the first complaint witness will be the first person to whom the alleged victim discloses the sexual assault. Under the first exception, the court may substitute a second or subsequent person whom a victim tells about the assault as the first complaint witness in circumstances in which the first encounter that the victim has with another person does not constitute a complaint (in that the victim does not actually state that he or she has been sexually assaulted or makes some other vague reference that does not amount to a disclosure). Id. at 446, 879 N.E.2d at 103. Under the second exception, the court may substitute a second or subsequent person whom a victim tells about the assault as the first complaint witness in circumstances in which the first person to whom the victim complains has an obvious bias or motive to minimize or distort the complaint. Id. The court recognized that “[o]ther exceptions are permissible based on the purpose and limitations of the first complaint doctrine.” Id. at 445, 879 N.E.2d at 103. The trial judge must make appropriate preliminary findings of fact to support this exercise of discretion. Id. at 446–447, 879 N.E.2d at 104. “Generally, a voir dire will be the appropriate mechanism for such a determination. . . . If the decision is dependent on findings of fact, such as in the case of bias on the part of the witness, the judge should make the necessary findings which will be upheld unless clearly erroneous.” (Citation omitted.) Id. at 446–447, 879 N.E.2d at 104. See Section 104(a), Preliminary Questions: Determinations Made by the Court.

The first complaint witness may “testify to the details of the complaint itself. By details, we mean that the witness ‘may testify to the complainant’s statements of the facts of the assault.’” Commonwealth v. King, 445 Mass. at 244, 834 N.E.2d at 1198, quoting Commonwealth v. Quincy Q., 434 Mass. 859, 874, 753 N.E.2d 781, 795 (2001). The witness

“may testify to the circumstances surrounding the initial complaint, [including] his or her observations of the complainant 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 complainant’s allegations or assess the specific defense theories as to why the complainant is making a false allegation” (citation omitted).

Id. at 246, 834 N.E.2d at 1199–1200.

“[T]he complainant may also testify to the details of the first complaint (i.e., what the complainant told the first complaint witness) and also why the complaint was made at that particular time.” Id. at 245, 834 N.E.2d at 1199.

“The complainant may testify in this manner only if a first complaint witness or a ‘substitute’ complaint witness . . . is produced at trial who testifies regarding the complaint. Otherwise, the complainant may not testify to the fact of the complaint or its details unless the witness to the complaint is deceased or the judge determines that there is some other compelling reason for the witness’s absence that is not the fault of the Commonwealth.”

Id. at 245 n.24, 834 N.E.2d at 1199 n.24.

“[A] defendant will be free to cross-examine both the first complaint witness and the complainant about the details of the complaint, and draw to the jury’s attention any discrepancies in the complainant’s story that come to light only as a result of this additional information” (citation omitted). Id. at 245, 834 N.E.2d at 1199.

“First complaint testimony, including the details and circumstances of the complaint, will be considered presumptively relevant to a complainant’s credibility in most sexual assault cases where the fact of the assault or the issue of consent is contested. However, where neither the occurrence of a sexual assault nor the complainant’s consent is at issue [i.e., identity of the perpetrator], the evidence will serve no corroborative purpose and will not be admissible under the first complaint doctrine.”

Id. at 247, 834 N.E.2d at 1200.