WISDOM, Circuit Judge:
David Wiley, the appellant, and Eugene Cunningham, a co-defendant, were arrested on March 17, 1971, in connection with an alleged sexual assault on the same date on twelve-year old Maxine Lewis. By a two-count indictment filed May 25, 1971, they were charged with carnal knowledge (22 D.C.Code § 2801) and taking indecent liberties with a minor child (22 D.C.Code § 3501(a)). Wiley was tried separately on May 22, 1972. After a jury trial the trial court dismissed the indecent liberties count and submitted the case to the jury on the charge of carnal knowledge. The jury found Wiley guilty, and on August 18, 1972, he was sentenced to a term of four to twelve years. The principal issue on appeal is whether there was sufficient corroborative evidence to take the case to the jury. We find that there was not sufficient corroborative evidence and therefore reverse.
At about 5:00 p. m. on March 17, 1971, Maxine Lewis arrived at 240 W Street, N.W. to meet a friend, Sandra Wiggins, with whom Miss Lewis planned to visit a relative in the hospital. She was invited inside the apartment by Wiley's girl friend, Delores Smith. There, she encountered Eugene Cunningham, a friend of another woman who also lived in the apartment. Miss Lewis testified that Cunningham came and sat next to her. He "started feeling all over me and I try to get away from him, but I couldn't". Miss Smith went to a bedroom in the back of the apartment and returned with Wiley, who looked as though he had been sleeping. Miss Lewis testified that Wiley grabbed her by the legs while Cunningham was choking her. They dragged her into the bedroom, closed the door, put a dresser across it, and threw her on the bed. Cunningham held her in a choking grip and Wiley held her legs and pulled her clothes off. She testified that Cunningham then "had sex with me." Then, "David had sex with me". On closer questioning, Miss Lewis stated that the penis of each man had penetrated her and that each ejaculated. As soon as Wiley and Cunningham freed her, she went to the bathroom to "fix [herself] up", then ran out of the apartment, leaving her coat behind.
Miss Lewis found a telephone booth to call the police, but saw Wiley and Cunningham approaching. She hung up the telephone and fled. Shortly afterwards she noticed a police officer on a scooter talking to some people, but she was too embarrassed to approach him and continued on her way. She finally managed to call the police from a public telephone at 4th and U Streets, N.W. When Officers Dye and Kraigler responded to her call, Miss Lewis told these officers that she had been raped by Wiley and Cunningham.
Miss Lewis also testified about her relationships with the people involved in the incident. She had seen Wiley four or five times before the day of the assault, and he had "never said nothing to me out of the way". She stated that she had never dated Wiley or Cunningham and had only spoken a few words to either. When asked how she got along with Miss Smith, she replied: "She used to accuse me of doing things that I didn't do . . . like something missing of hers, like food stamps or some money, I always get the blame," although she never took any of Miss
Two police officers testified at trial about the events following Miss Lewis' departure from the apartment. Officer James Gordon, the police officer on the scooter, stated that on March 17 he was about two blocks from 240 W Street, N.W., when he noticed Miss Lewis. He said:
Minutes later, Officer Gordon heard a radio run to check for a possible criminal assault at 4th and U Streets; he went around the corner to check the report, and talked to Miss Lewis. She pointed down the street toward the alleged suspects. Officer Gordon then passed the two men whom Miss Lewis later identified as Wiley and Cunningham.
Officer Kaigler testified that he was patrolling in a scout car with his partner, Officer Norman Dye. At 5:39 p. m., they received a radio run for a possible criminal assault. They went to the corner of 4th and U Streets, N.W., where they found Miss Lewis. Officer Kaigler stated:
Miss Lewis and the officers drove in the car toward the apartment. En route, she pointed out Cunningham and Wiley on the street and named them. Officer Kaigler testified that when Wiley and Cunningham saw the car coming, they turned down another block. The police stopped Wiley and Cunningham, and Miss Lewis identified them; they were arrested. Miss Lewis was then taken to a hospital where a doctor examined her.
Sandra Wiggins, the friend whom Miss Lewis was to meet at the apartment, testified that during that evening she was riding in a car when she saw Miss Lewis "standing at 4th and U by some phone booths". Miss Wiggins did not stop.
Wiley took the stand in his own behalf. He testified that on March 17 he had been asleep in one of the bedrooms of the apartment since 12:00 or 1:00 p. m. when Miss Smith awakened him and asked him to tell Cunningham to leave Miss Lewis alone. Wiley got up, and when he saw that Cunningham was bothering Miss Lewis, told him to stop it. Wiley then went back to sleep. Later, he was awakened by Cunningham. Both left the apartment to visit Cunningham's girl friend to get some money. Wiley stated that he did not see Miss Lewis in a telephone booth during their walk. En route, they were arrested by the police. Wiley stated that he did not see the police car until he was stopped.
Wiley expressly denied that he had helped Cunningham take Miss Lewis into the bedroom, that he himself had gone into the bedroom with Miss Lewis, and that he ever had sexual relations with Miss Lewis. Wiley stated that he did not hear Miss Lewis run out of the apartment crying, nor did he hear any argument in the bedroom while he was asleep. Also, he testified that Miss Lewis and Miss Smith "got along as I seen", and that he and Miss Lewis were good friends. As to the relationship between Miss Lewis and Cunningham, Wiley stated that Cunningham was "always picking at her", that he was "messing with her, all the time, arguing". He further testified that although they made repeated attempts, neither he nor
Wiley was arrested on March 17, 1971. After a preliminary hearing on March 26, 1971, Wiley was indicted on May 25, 1971. Subsequent events delayed the trial date until May 22, 1972. By that time, Cunningham had fled the jurisdiction. Dr. Matthews, who had examined the complainant on the date of the incident, was not subpoenaed by the Government on May 22, 1972, because he was on vacation. Indeed, no medical testimony was introduced at trial.
At the close of the Government's case, the defense moved for a judgment of acquittal on the indictment on the ground that there was insufficient corroboration of the complainant's testimony. As noted, the trial court later dismissed the charge of indecent liberties and submitted the case to the jury on the charge of carnal knowledge. The court also submitted an aiding and abetting instruction.
The jury returned a verdict of guilty. After the trial court denied a motion for acquittal n. o. v. or for a new trial, Wiley appealed.
It is established law in this jurisdiction that a person may not be convicted of a "sex offense" on the uncorroborated testimony of the alleged victim. Bailey & Humphries v. United States, 132 U.S.App.D.C. 82, 405 F.2d 1352 (1968); Duckett v. United States, 133 U.S.App.D.C. 305, 410 F.2d 1004 (1969); United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971). The corroboration requirement provides an essential safeguard in such cases where the risk of unjust conviction is high. Complainants all too frequently have "an urge to fantacize or even a motive to fabricate". Coltrane v. United States, 135 U.S.App.D.C. 295, 418 F.2d 1131, 1135 (1969). Typically, the "innocent as well as the guilty have only their own testimony upon which to rely", and the nature of the charges "poses an unusual threat to the reliability of a judgment on credibility of the allegedly defiled vis a vis the alleged defiler". 418 F.2d 1135.
This Circuit has avoided imposing rigid rules concerning corroboration. See United States v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704, 708 (1970). In general, the degree of corroboration required will vary according to the danger of fabrication by a particular complainant. With respect to the corpus delicti, for example, it is not always necessary to introduce independent evidence to corroborate each and every element of the offense. Rather, "independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim's account of the crime was not a fabrication". United States v. Gray, 155 U.S. App.D.C. 275, 477 F.2d 444 (1973). See United States v. Terry, supra; United States v. Huff, 143 U.S.App.D.C. 163, 165-166, 442 F.2d 885, 887-888 (1971); United States v. Jones, 155 U.S.App.D.C. 328, 477 F.2d 1213 (1973). The quantum of proof required will depend upon such factors as the age and impressionability of the complainant and the presence or absence of any apparent motive. United States v. Gray, supra. This flexible approach to the corroboration rule focuses attention on the facts of each case. For example, scrutiny must be exercised where, as here, the complainant is a young girl. Courts have exhibited a "traditional skepticism" towards accusations of children. Wilson v. United States, 106 U.S.App.D.C. 226, 271 F.2d 492 (1959). In such cases, the offense may not be established by the testimony of the victim alone.
Applying this standard to the present case, we find that there was not sufficient corroboration to warrant submission of the case to the jury. The elements of the offense of carnal knowledge are: (1) penetration, (2) with a child under the age of sixteen. D.C.C.E. § 22-2801, ¶ 2; Wheeler v. United
Corroboration, therefore, consisted of testimony of the two officers to the effect that (1) the complainant was crying and upset, (2) her clothing was disheveled, (3) she had no coat even though it was a cold day, and (4) the complainant's prompt report of the alleged incident to the officers. Although this evidence may corroborate the occurrence of some event, it does not corroborate sexual intercourse.
The most effective corroboration of the complainant's testimony would have been medical evidence. Here, Miss Lewis was examined by a doctor shortly after the alleged incident. Notwithstanding the importance of the medical evidence, the Government went to trial without having subpoenaed the examining physician. The Government was well aware of the significance of that evidence and had subpoenaed the doctor on the three prior dates set for trial. At the time of the fourth and final trial date, the doctor was on vacation. The Government's decision to proceed without him was irresponsible. Medical evidence may not be an indispensable prerequisite to conviction where other independent evidence is introduced to corroborate sexual intercourse.
Nor was the evidence sufficient to warrant submission of the case to the jury on the theory that the defendant was an aider and abettor in Cunningham's act of carnal knowledge. The elements of the offense of aiding and abetting are: (1) guilty knowledge on the part of the accused; (2) that an offense was committed by someone; and (3) that the defendant assisted or participated in the commission of the offense. United States v. Harris, 140 U.S.App.D. C. 270, 435 F.2d 74, 88, n. 40 (1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675,
We therefore conclude that the defendant's conviction must be reversed. For this reason, we need not consider the other issues raised by the defendant.
BAZELON, Chief Judge (concurring):
The requirement of corroboration in sex offenses, particularly rape, has come under sharp attack in recent years.
The notion that the testimony of a single witness is inadequate to prove a crime is an ancient one. The Code of the Emperior Justinian provided that on any important issue the testimony of one witness was insufficient.
Today thirty-five states have similarly rejected the corroboration requirement for rape.
Numerous justifications have been advanced for the requirement of corroboration in sex cases. An examination of these rationales reveals a tangled web of legitimate concerns, out-dated beliefs, and deep-seated prejudices.
It is contended that a woman may fabricate a rape accusation because, having consented to intercourse she is ashamed and bitter, or because she is pregnant and feels pressured to create a false explanation, or because she hates the man she accuses or wishes to blackmail him.
There are, however, countervailing reasons not to report a rape. One said to be a victim of rape may be stigmatized by society, there may be humiliating publicity, and the necessity of facing the insinuations of defense counsel may be a deterrent.
It is difficult to say whether those inclined to falsify a charge of rape are deterred by the same factors that deter the reporting of actual rapes. A falsifier, for example, may be a seeker of publicity rather than one who shuns it.
In addition to fabricated rapes, it has been suggested that women may report fantasized rapes.
With both fabricated and fantasized rapes it appears well-established that what dangers do exist are greatest when the complainant is young.
In addition to the problem of false charges, the corroboration requirement is justified on the theory that rape is a charge unusually difficult to defend against. In 1680 Lord Chief Justice Hale wrote, in one of the most oft-quoted passages in our jurisprudence, that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent."
Again, there is little hard evidence with which to test this theory. What studies are available suggest that a defendant is unlikely to be convicted of rape on the uncorroborated testimony of the complainant in those jurisdictions that do not require corroboration.
Another justification for the corroboration requirement is the prevalence of severe penalties for rape. For many years rape was punishable by death in many states.
Still another basis for the corroboration requirement lies in "the sorry history of racism in America."
All of the safeguards that developed in this context should not be automatically applied today. Juries are more integrated than in the past and racial prejudice may be at a somewhat lower level. Numerous rape victims are black and their interests, as well as those of white women, may have been slighted by the concern for black defendants.
A final theory of the corroboration requirement is that it stems from discrimination against women. It is said that traditional sex stereotypes have resulted in rape laws that protect men rather than women. Penalties are high because a "good" woman is a valued possession of a man. Corroboration is required because to a "good" woman rape is "a fate worse than death" and she should fight to the death to resist it. If no such fight is put up, the woman must have consented or at least enticed the rapist, who is therefore blameless.
This point of view, which has been expressed by men as well as women,
Ultimately modern notions of sexual equality may help breakdown those aspects of rape law which stem from unjust discrimination against women.
Analyzing all of these justifications in order to separate the valid from the invalid is no easy task. As I have said in another context, we are in that terrible period known as "meanwhile." We know enough to be troubled but not enough to know how to resolve our troubles.
To guard against these possible dangers we retain a corroboration rule which provides that "independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim's account of the crime was not a fabrication." United States v. Gray, 155 U.S.App.D.C. 275 at 276, 477 F.2d 444 at 445 (1973.) We adhere to no absolute tests or concrete guidelines.
The net effect of our current approach does not appear to make convictions for rape unusually difficult in this jurisdiction. Available statistics indicate that the conviction rate for rape in the District of Columbia is actually higher than it is for the United States as a whole, and most states do not require corroboration.
Thus I concur in the court's opinion reversing defendant's conviction.
WILKEY, Circuit Judge, dissenting:
In spite of the conscientious effort my two distinguished colleagues have made in examining the law, especially as it relates to corroboration in sexual assault cases, I submit that they have reached the wrong result in this particular case. I believe this is apparent from the law in this jurisdiction, when applied to the facts herein, both as stated in the majority opinion of Judge Wisdom. Chief Judge Bazelon's concurrence is a thoughtful essay with which anyone would find it difficult to take issue, but with all due respect, it does not point the way to a decision in Wiley's case. In my view, the errors of the majority are clearly demonstrable as two:
1. The requirement of specific medical corroboration of one single fact conflicts with our previous decisions, and leads with inevitable logic to the conclusion that no rape conviction is sustainable without medical testimony confirming penetration, despite the established medical view that in many instances after the event a medical examination cannot determine one way or another whether forcible penetration took place; and
2. In the circumstances of this case, given the uncontradicted testimony of the 12 year old victim on the question of forcible penetration and the testimony of appellant Wiley, the majority has focused on the wrong issue on which corroboration is relevant.
I. The Standard of Corroboration in this Jurisdiction.
With admirable clarity, Judge Wisdom has set forth the standard we have required in this jurisdiction: "This Circuit has avoided imposing rigid rules concerning corroboration. (Citation omitted) In general, the degree of corroboration required will vary according to the danger of fabrication by a particular complainant. With respect to the corpus delicti, for example, it is not always
Our most recent decision is United States v. Gray, 30 March 1973.
"Appellant urges that corroboration of the corpus delicti requires independent evidence tending to establish each and every material element of the offense. Specifically, he contends that because the Government's proof as to penetration rested wholly on the complainant's testimony, his conviction must be reversed. Although there are statements in Allison v. United States, 133 U.S. App.D.C. 159, 409 F.2d 445 and United States v. Bryant, 137 U.S.App.D.C. 124, 420 F.2d 1327 that support appellant's position, our more recent decisions make it clear that Allison and Bryant no longer reflect the controlling law." (citations omitted) "Simply put, the principle emerging from these cases is that the independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim's account of the crime was not a fabrication."
While it may be argued, or denied, that the overall corroborative circumstances were stronger in Gray than in Wiley's case, corroboration here (particularly when analysis is made of what question needed corroboration, see III.B. infra) was strong enough at least to go to the jury.
Gray is one of many cases establishing that medical proof of forcible penetration may be impossible to obtain. "Although gynecological examination of the prosecutrix was inconclusive, she testified unequivocally that her attacker had achieved penetration."
And, as to the real contested issue in Wiley's case — not whether the offense was committed but who committed it — we said in Gray: "Corroboration is also required as to identification of the assailant; but our cases have traditionally recognized that, as to this element, a lesser standard of proof is required. And where there is a convincing identification, one that minimizes the danger of mistake or falsification, no further corroboration is required. (Citations omitted) Here the victim identified appellant to police by name."
Bearing in mind Judge Tamm's admonition in United States v. Jones,
Given the guidelines and tests of Jones, involving carnal knowledge of a 15 year old, and Gray, our last two decisions in this field, let us examine what corroboration there was of Wiley's guilt.
II. Corroboration of Wiley's Guilt
First, the evidence to be corroborated. The testimony of the 12 year old victim as to the sexual assault in the apartment is, to my mind, clear, coherent, and without any internal contradictions. It is fairly set forth in Judge Wisdom's opinion. In the interest of brevity, it will not be repeated here, but we should not forget that the victim provided a complete documentation of every essential detail, unshaken on cross-examination, and uncontradicted except by the bare denial of the appellant.
Second, appellant Wiley's testimony does not contradict the victim's assertion that a sexual assault took place. Indeed, appellant confirms it. According to his story, he was awakened by Miss Smith (Wiley's girlfriend) who asked him to stop Cunningham from taking indecent liberties with the 12 year old. ". . . he saw that Cunningham was bothering Miss Lewis (the victim), told him to stop it." (Majority opinion, p. 549) Wiley says he then went back to sleep; the victim says he participated in the rape. At no time did Wiley testify that Cunningham did not, or could not, have raped the girl.
With this as the basic evidence, how much corroboration was needed to send the case to the jury? Here is what the District Judge had:
1. The victim reported the offense immediately. After fleeing the apartment, she found a phone booth, started to call, but on seeing Wiley and Cunningham approaching, hung up and slipped away. She was seen at this time by Officer Gordon, who noticed her because she was crying, obviously upset, had a disarrayed blouse, and was not wearing a coat although it was a cold day. She found another phone, called the police. When Officers Dye and Kraigler arrived, she pointed out Wiley and Cunningham by name, and stated she had been raped by them.
2. Her crying and other visible signs of emotional distress, noted first without
3. Her disheveled clothing and her disarranged blouse, noted by all officers.
4. Her being on the street on a cold day without a coat, sufficiently odd to attract Officer Gordon's attention.
5. Finding the coat in the apartment at 240 W. Street, N.W., from whence she had fled, and claimed to have left the coat in her haste and emotional distress.
6. The complete absence of any motive on the victim's part to fabricate a story of Wiley's guilt. A portion of appellant's own testimony confirms this; he claimed "that he and Miss Lewis were good friends." (Majority opinion, p. 549) She, the victim, testified that Wiley "never said nothing to me out of the way". (Majority opinion, p. 548)
Taking this Court's test in Jones, "Can we say that . . . a reasonable juror could not conclude that the appellant was guilty of the crime charged? Patently, the answer to that question must be no."
III. Errors of the Majority in the Corroboration Required
A. Departure from this Court's Previous Decisions
As late as 30 March 1973, we said in Gray
Yet, in spite of many and recent decisions of this Court to the contrary, my two colleagues focus entirely on the absence of one special type of evidence — medical testimony — to corroborate one element of the crime — penetration.
This fails to recognize: (a) that in many cases of actual penetration medical testimony cannot conclusively say whether it occurred, (Gray, 477 F.2d at 446); (b) that in most rape cases there will not be a third party in such an intimate position that he can (or is willing to) testify to penetration; (c) hence, there can be no conviction without the defendant's confession (Jones, 477 F.2d at 1218).
With all due respect to my two distinguished colleagues, what they have decided in Wiley's case is not the law at present in this jurisdiction, may never have been the law, and certainly should never be the law in this or any other jurisdiction.
B. Focus on the Wrong Issue on Which Corroboration was Important
The majority opinion asserts "[t]he most effective corroboration of the complainant's testimony would have been medical evidence," and "[t]he Government's decision to proceed without [the doctor] was irresponsible."
So we know the victim was raped by Cunningham. Granting that the jury had only the victim's testimony (uncontradicted as to the rape by Cunningham), the question before the jury was and here is, was she also raped by Wiley? The physician's testimony could not have answered that question. At the most, he could have testified to penetration and sperm in the vagina. But who was responsible? Cunningham, or Cunningham and Wiley? Wiley's defense was not that the rape did not, or could not have occurred; his defense was that he was asleep in the other room while Cunningham was with the 12 year old victim.
Obviously the jury disbelieved Wiley's story on the critical issue. The physician's testimony would not have been even relevant to the critical issue raised by Wiley: Was it Wiley who also raped the victim?
I am not overlooking the well understood principle that every element of an offense must be proved — but the law in this jurisdiction is that not every element of a sexual offense need be corroborated.
Since the victim's testimony as to the rape having been perpetrated was uncontradicted by any witness, including appellant Wiley, and certainly was strongly supported by all attendant circumstances, the corroboration needed here is not corroboration of the rape having taken place, but of Wiley's participation therein. Consider what would have been the position of appellant Wiley and all the evidence before the jury, if the absent physician had appeared and testified to both penetration and sperm in the victim's vagina. Wiley's testimony would not, could not, have been different. He never testified Cunningham did not, could not, have raped the 12 year old girl. Wiley testified that he "got up, and when he saw that Cunningham was bothering Miss Lewis, told him to stop it. Wiley then went back to sleep. Later, he was awakened by Cunningham."
The absent physician's testimony thus in no way could have corroborated any fact disputed by appellant Wiley. The vital corroboration needed here is as to Wiley's participation; medical testimony could not supply this; any needed corroboration of the victim's clear and unequivocal testimony is supplied by all the attendant circumstances.
I trust and would sustain the jury verdict here.
Criticism was particularly severe of the pre-1972 New York law which required corroboration of each material element of the offense. This criticism led to modification of the New York requirement. Repeal Not Reform at 1365, 1368.