The defendant, Thomas S. King, appeals from his convictions of forcible rape of a child under sixteen years, G. L. c. 265, § 22A, and indecent assault and battery of a child under fourteen years, G. L. c. 265, § 13B. In part, the defendant argues that the trial judge improperly admitted the testimony of two "fresh complaint" witnesses. Under the fresh complaint doctrine in effect at the time of trial, the Commonwealth was permitted to introduce out-of-court statements seasonably made by the victim after the alleged sexual assault for the purpose of corroborating her own testimony concerning the alleged assault (so-called "fresh complaint" testimony). See, e.g., Commonwealth v. Montanez, 439 Mass. 441, 445 (2003). There was no error in the judge's admission of the testimony. We affirm the defendant's convictions.
We take this opportunity, however, to reconsider the scope of, and continued necessity for, our present fresh complaint doctrine. In light of changed circumstances we shall describe, we substantially revise the doctrine, which in the future shall be called the "first complaint" doctrine. Under the new doctrine, to be applied only in sexual assault cases tried after the issuance of the rescript in this opinion, the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding
First complaint testimony may be admitted for a limited purpose only, to assist the jury in determining whether to credit the complainant's testimony about the alleged sexual assault. The testimony may not be used to prove the truth of the allegations. The jury must be so instructed. 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. First complaint testimony is not relevant and therefore not admissible under the doctrine where neither the fact of the sexual assault nor the complainant's consent is at issue, as in cases where the identity of the assailant is the only contested issue.
Facts and procedural history. On the evidence admitted, the jury could have found the following facts. At the time of the alleged assault, the victim, whom we shall call Alice, was four years old. Her mother and the defendant, who is Alice's biological father, were no longer in a relationship, but had a visitation arrangement concerning Alice: Alice lived and slept at the defendant's apartment on Mondays and Tuesdays. Alice's grandparents and the defendant's wife also lived in the same apartment. The defendant, his wife, and Alice shared a bedroom during her visits: the defendant and his wife slept in one bed, and Alice in another.
One day in February, 2002, Alice walked in on the defendant in the bathroom and he asked her to "lick or scratch" his penis because it was "itchy." He was fully clothed until Alice replied "okay." The defendant then removed his pants and underwear and laid down on his back on the bathroom floor or leaned against the tub. Alice knelt or sat beside him and did as she was told. She did not like the taste of the defendant's penis and so applied bubble-gum flavored toothpaste to it. When she finished licking the toothpaste off the defendant's penis, she put the
Later that same day, the defendant drove Alice to her day care center and her mother picked her up there. Alice told her mother about the alleged assault the day after the incident or perhaps one week later, when she was preparing to return to her father's house for another visit. This was the first time Alice disclosed the alleged assault.
According to Alice's mother, on February 18, 2002, at 8:45 A.M., while in the living room of her studio apartment, Alice told her that the defendant had asked her to lick his penis. On hearing Alice's story, Alice's mother telephoned her own mother for advice and then telephoned the police. The following day, Alice and her mother went to the district attorney's office where they spoke with Brockton Detective Erin Kerr about the incident.
The grand jury's indictments allege that the offenses occurred between June, 2000, and February 12, 2002, the period during which Alice was periodically visiting the defendant at his home.
The following day, a second jury were empanelled. At this trial, three witnesses testified for the Commonwealth: Alice testified as the complainant, and her mother and Detective Kerr testified as "fresh complaint" witnesses. To minimize the potential
The judge instructed the jury at the time of Alice's mother's testimony about the "fresh complaint" doctrine: "If an alleged victim of a rape or sexual assault tells someone about the event reasonably promptly after the event," then evidence of the statement is admitted "only to corroborate the alleged victim's in-court testimony and not to prove independently that the sexual assault occurred." The judge gave similar instructions before Detective Kerr's testimony, and again in his final instructions.
At the close of the Commonwealth's case, the defendant moved unsuccessfully for a required finding on so much of the indictment that charged rape of a child by force, claiming insufficient evidence of penetration. He renewed this motion at the close of all of the evidence, and again before sentencing. The judge denied the motions, concluding that "[b]ecause licking constituted oral stimulation, and therefore fellatio, proof of penetration was satisfied."
The defendant was found guilty of both offenses and appealed. We transferred this case here on our own motion.
Discussion. The defendant challenges his convictions on five bases: (1) the rape indictment was "void" as there was no penetration; (2) there was insufficient evidence to support the rape conviction; (3) both the assault and battery and rape convictions were so closely related as to constitute one crime; (4) the judge erred in ruling that the defendant's prior conviction would have been admissible had he testified; and (5) the fresh complaint testimony of Alice's mother and Detective Kerr exceeded the bounds of the fresh complaint doctrine and violated the defendant's right to confrontation.
1. "Void" indictment. The defendant claims that the indictment charging rape of a child by force was defective because it did not allege penetration. We disagree. While our case law has required the Commonwealth to prove some degree of penetration in order to support a conviction under the statute, see, e.g.,
2. Sufficiency of the evidence. The defendant claims that the evidence at trial was similarly insufficient on the element of penetration, and that the judge should have granted his motion for a required finding of not guilty. This claim also fails. As a matter of law, evidence that a male forced a female to perform fellatio on him and made her "lick" his penis is sufficient to support a jury's finding of penetration and thus a conviction of forcible rape of a child.
While some degree of penetration is required to sustain a
In denying the defendant's motion for a required finding of not guilty, the judge properly concluded that the element of penetration required for a rape conviction may be established by licking a penis because "there is no difference between the licking of the female genitalia and the male genitalia. The bodily invasion is the same, regardless of the sex of the victim." Cf. Commonwealth v. Gallant, supra at 583 (rape statute "is neutral as to the gender of the victim . . . [and therefore] the penalties for `sexual intercourse' and `unnatural sexual intercourse' are the same without regard to the gender of the victim"). Other courts have similarly concluded that forcing a victim to lick or kiss a penis may support a conviction of rape or sexual assault.
The judge properly instructed the jury on the definition of
Finally, on the issue of penetration, the defendant argues in essence that because the statute does not define the penetration
3. Duplicative charges. The defendant also raises, apparently for the first time, the contention that his convictions were based on facts "so closely related as to constitute the substance of but a single crime" and thus barred by "double jeopardy." In essence, he asserts that these convictions were duplicative. Because there was no objection at trial, we review the claim only to determine if there was error and, if so, then "determine if a substantial risk of a miscarriage of justice occurred." Commonwealth v. Mamay, 407 Mass. 412, 418 (1990), citing Commonwealth v. Thomas, 401 Mass. 109, 119 (1987).
"[I]ndecent assault and battery [of a child] is a lesser included offense of forcible rape [of a child under sixteen years]." Commonwealth v. Sanchez, 405 Mass. 369, 381 (1989), quoting Commonwealth v. Egerton, 396 Mass. 499, 503 n.3 (1986). See Commonwealth v. Walker, 426 Mass. 301, 303 (1997). Thus, convictions for both offenses must rest on separate and distinct acts. Commonwealth v. Mamay, supra. Commonwealth v. Thomas, supra at 120. See Commonwealth v. Johnston, 60 Mass.App.Ct. 13, 22 (2003). The acts that support the two convictions cannot be "so closely related in fact as to constitute in substance but a single crime." Commonwealth v. Thomas, supra, quoting Commonwealth v. St. Pierre, 377 Mass. 650, 662-663 (1979). Here, the Commonwealth argued two separate acts supported the convictions: the rape charge was based on the forced licking of the defendant's penis, and the assault and battery
The judge carefully and properly instructed the jury that the indictment for indecent assault and battery "refers to the defendant allegedly causing [Alice] to scratch his penis, as opposed to the alleged licking of his penis." He further instructed: "This is charged as a separate and distinct offense [from the rape]. It's not part of the [rape] indictment that I explained to you. It requires proof of a separate act and it is alleged by the Commonwealth that that separate act is the scratching by [Alice] of the defendant's penis . . . ." The defendant did not object to this instruction, and the jury were given separate verdict slips. In these circumstances, whether the scratching and licking "were separate and distinct acts or part of a single criminal episode was a question of fact for the jury to resolve." Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999) (judge properly instructed jury that assault and battery by means of dangerous weapon and murder convictions must rest on separate and distinct acts). We assume the jury followed the judge's proper instructions and based the two convictions on these separate acts. Id. at 510. See Commonwealth v. Mamay, supra at 418-419 (defendant's inserting tongue into victim's mouth and tearing down pants distinct from anal and vaginal penetration); Commonwealth v. Johnston, supra at 22-23 (pulling victim's hair and raping her distinct acts); Commonwealth v. Kopsala, 58 Mass.App.Ct. 387, 393 (2003) (evidence that defendant "pulled up the victim's shirt, exposing her breasts, unbuttoned her jeans and pulled them off, and removed her panties," separate and distinct from penetration); Commonwealth v. Fitzpatrick, 14 Mass.App.Ct. 1001, 1003 (1982) ("An indecent contact which is separate from and not incidental to the act of penetration does not merge with the crime of rape to constitute but a single offense any more than a second penetration of the same victim during the same criminal episode constitutes but one rape"). Contrast Commonwealth v. Sanchez, supra at 381-382 (judge did not instruct jury that convictions must be based on separate acts). There was no error.
4. Evidence of prior conviction. Next, the defendant claims
5. Admission of "fresh complaint" testimony. The defendant next asserts that the rape conviction was secured by the use of "fresh complaint" testimony (from Alice's mother and Detective Kerr) that went beyond the limits of the then applicable fresh complaint doctrine, and violated his confrontation rights. We begin with a brief overview of the origins of the fresh complaint doctrine and a summary of the doctrine as it is currently applied in Massachusetts courts. We next address each of the defendant's objections to the fresh complaint testimony admitted at trial, considering whether the testimony violated the doctrine as it existed at the time of trial. We then conclude that there was no error in the admission of the testimony under then-existing evidentiary standards or under our Federal and State confrontation clauses.
a. Origins and scope of doctrine. Under English common law, victims of violent crime were required to make "hue and cry" (hutesium et clamor) as a prerequisite of prosecution. See, e.g., Commonwealth v. Bailey, 370 Mass. 388, 394 n.7 (1976); 2 F. Pollock & F. Maitland, The History of English Law Before the Time of Edward I 578-579 (2d ed. 1899). By the 1700's, when courts had refined many evidentiary standards, the "hue and cry" requirement was no longer a necessary part of a criminal prosecution, except in rape cases. See, e.g., Commonwealth v. Lavalley, 410 Mass. 641, 646-647 n.7 (1991); Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 B.U. L. Rev. 945, 955 (2004) (hereinafter Anderson, The Legacy of the Prompt Complaint Requirement). The rationale for the different treatment of rape cases was the then current belief that "after becoming a victim of [sexual] assault against her will . . . [the victim] should have spoken out. That she did not, that she went about as if nothing had happened, was in effect an assertion that nothing
American courts, in turn, endorsed the belief that the failure of a rape victim to make a prompt complaint of a sexual assault was akin to an inconsistent statement at odds with the complainant's court room testimony about the rape. Commonwealth v. Lavalley, supra, citing 4 J. Wigmore, Evidence § 1135, at 298-300 (Chadbourn rev. ed. 1972). Because of this belief, the prosecution was permitted to rebut any inference that the sexual assault charge was fabricated with evidence from "fresh complaint" witnesses to the effect that the complainant did in fact complain and the complaint was "fresh" or prompt.
In more recent years, we have acknowledged the "sexist," "outmoded" and "invalid" origins of the fresh complaint rule, see Commonwealth v. Licata, 412 Mass. 654, 658 (1992); Commonwealth v. Lavalley, supra at 646 n.7; but nevertheless continued to adhere to the fresh complaint doctrine:
Commonwealth v. Licata, supra, quoting Commonwealth v.
The admission of fresh complaint evidence concerning sexual assaults on children stands on a somewhat different footing. "The cases involving child sexual abuse constitute a factually distinct branch of the fresh complaint doctrine that gives special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child's make-up." Commonwealth v. Fleury, 417 Mass. 810, 814 (1994), quoting Commonwealth v. Amirault, 404 Mass. 221, 229 (1989). "[W]ith regard to child victims, our fresh complaint jurisprudence has adopted the [theory that] a child's circumstances commonly make it difficult, if not impossible, for the child to make a prompt complaint of sexual assault and, contrary to the theoretical justification for the doctrine, a child's much later report of sexual assault is admitted as `fresh complaint' whenever there is a reasonable explanation for the child's failure to make a prompt complaint." Commonwealth v. Montanez, 439 Mass. 441, 453-454 (2003) (Sosman, J., concurring), citing Commonwealth v. Fleury, supra at 813-815, and cases cited.
Most recently, in Commonwealth v. Montanez, supra at 445, we summarized the key provisions of our fresh complaint doctrine:
Id. at 445, quoting Commonwealth v. Peters, 429 Mass. 22, 27, 28 (1999). Thus, under the doctrine as it has existed previously, a complainant was permitted to testify only to the fact that a fresh complaint was made and to whom it was made,
Significantly, testimony concerning the circumstances giving rise to the fresh complaint (as opposed to what the complainant actually said in the fresh complaint), although sometimes admissible on other grounds, was generally not admissible as part of
Witnesses were permitted to testify only to reasonably prompt ("fresh") complaints. Contrast Commonwealth v. Montanino, 409 Mass. 500, 508-509 (1991) (four-year delay too long). Greater flexibility in determining freshness was permitted in cases of child sexual assault. The "preliminary decision whether a complaint [was] sufficiently fresh to be presented to the jury [lay] in the sound discretion of the trial judge and [was to] be made according to whether the complaint was `reasonably prompt' in the particular circumstances of the case." Id. at 508, quoting Commonwealth v. Sherry, 386 Mass. 682, 691 (1982). As with all evidence, whether to believe or disbelieve the fresh complaint testimony, and what, if any, weight to give that evidence, rested with the jury. Thus, while the preliminary determination of "freshness" was made by the judge, once the fresh complaint testimony was admitted in evidence, "the ultimate responsibility for determining the freshness of the complaint [lay] with the jury." Commonwealth v. Montanino, supra at 510.
b. "Freshness" of the complaint. The defendant first challenges
c. Enlarging scope of Alice's testimony. The defendant also contends that the admission of the fresh complaint evidence violated his right to a fair trial because the mother's testimony improperly enlarged on Alice's testimony, providing substantive evidence of the alleged crime including the date of the offense. As a logical outgrowth of the rule that fresh complaint testimony is to be used for corroborative purposes only, such testimony may not include details of the alleged assault not included in the complainant's own testimony. See, e.g., Commonwealth v. Flebotte, supra at 351; Commonwealth v. Scanlon, supra at 670. To the extent that the fresh complaint testimony significantly enlarges the scope of the facts of the alleged assault as described in the complainant's testimony, it cannot be said either to support or to refute the complaining witness's own testimony.
In this case, we conclude that the fresh complaint testimony of Alice's mother did not impermissibly exceed the scope of Alice's own testimony. First, contrary to the defendant's arguments, the mother did not testify to the date of the sexual assault, but only to the date on which her daughter disclosed the abuse to her. The mother's testimony about the timing of Alice's complaint and Alice's visits with the defendant was permissible; it did not attempt to explain away Alice's delay in complaining, even if that evidence assisted the Commonwealth in establishing the dates of the alleged offense and the first complaint. Second, Alice's mother testified only briefly as to Alice's fresh complaint, providing few details of the complaint.
The defendant suggests that the fresh complaint testimony of both Alice's mother and Detective Kerr was so inconsistent with the victim's own testimony that the allegation of rape cannot be believed. Fresh complaint testimony need not replicate precisely the victim's own testimony, nor must it be sanitized to match the victim's testimony exactly. See Commonwealth v. Scanlon, supra at 670. Some inconsistency between a fresh complaint witness's testimony and a complainant's testimony is expected, and will often aid the jury in determining whether the fresh complaint testimony ultimately supports the complainant's story. To the extent that there were inconsistencies between the testimony of the two adults and the testimony of the child, they were insignificant. The weight and credibility of the witnesses' testimony are solely for the fact finder and are not proper subjects for appeal. Cf. Commonwealth v. Lydon, 413 Mass. 309, 311 (1992).
d. "Piling on" of fresh complaint witnesses. Next, the defendant maintains that the admission of testimony from two fresh complaint witnesses constituted prejudicial repetition of the details of the assault. We disagree. While the Commonwealth called two fresh complaint witnesses to testify, the judge carefully limited the mother's testimony to avoid duplication concerning the details of the complaint. While attentive to the potential dangers of the prejudicial "piling on" of fresh complaint testimony, see Commonwealth v. Trowbridge, 419 Mass. 750, 761 (1995); Commonwealth v. Lavalley, 410 Mass. 641, 646 (1991), our courts have permitted two or more fresh complaint witnesses to testify concerning the details of the complaint. See, e.g., Commonwealth v. Kirkpatrick, 423 Mass. 436, 444 (1996) (five fresh complaint witnesses); Commonwealth v. Licata, 412 Mass. 654, 656 n.4, 660 (1992) (two fresh complaint witnesses); Commonwealth v. Lavalley, supra at 642 (five fresh complaint witnesses and videotape of victim's complaint to police not prejudicial); Commonwealth v. Brouillard, 40 Mass.App.Ct. 448, 457 n.15 (1996) (four witnesses in case involving two complainants and two defendants "not in itself impermissible"). Contrast Commonwealth v. Swain, 36 Mass.App.Ct. 433,
e. Confrontation clause. Finally, the defendant argues that the confrontation clauses of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights bar the fresh complaint testimony admitted in this case. In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that where a witness testifies at trial and the defendant has the opportunity to cross-examine the witness, the confrontation clause is not violated by the admission of an out-of-court statement by that witness. See id. at 59 n.9 ("we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it"). See also State v. Samuels, 273 Conn. 541, 568-569 (2005) ("constancy of accusation" [Connecticut's term for fresh complaint evidence] testimony does not violate confrontation clause). Article 12 of the Massachusetts Declaration of Rights affords no greater protection than the Sixth Amendment in this context. Cf. Commonwealth v. Edwards, 444 Mass. 526 (2005). Here, the defendant had the opportunity to and did cross-examine Alice, inquiring about her complaint to her mother, her memory, and her failure to report the alleged incident to her grandparents or teachers.
The defendant also contends that Alice was essentially unavailable for cross-examination because she was incompetent to testify. We disagree. First, Alice was judged competent after a hearing on the issue, and the defendant does not now challenge that determination. Second, we see nothing in Alice's testimony to support any claim that she was "unavailable" due to any inability or unwillingness to testify. Alice testified to the details of the assault, her report to her mother, and the relative timing of the assault. As noted above, she was cross-examined on issues relative to the alleged assault and her complaint, and responded to the best of her ability. To the extent her memory
6. Reexamination of the fresh complaint doctrine. This case must be resolved on the basis of the "fresh complaint" doctrine as it existed at the time of trial. We are, however, provided with an opportunity to reconsider the scope and continued necessity for that doctrine.
a. Continued need for complaint witnesses. We last reviewed the validity of our "fresh complaint" doctrine in Commonwealth v. Licata, supra at 657-660. Since that time, further research has been conducted on the behavior of victims of sexual assault in the aftermath of the crime. That research suggests that, in part because the harm suffered by sexual assault victims often consists of the psychological harm caused by the defendants' violation of a victim's body, such victims respond in a variety of ways to the trauma of the crime,
Also since 1992, residents in Massachusetts have been exposed to significant amounts of public information and media attention on the issue of sexual assaults and its impact on victims, especially children. See, e.g., Ross v. Garabedian, 433 Mass. 360, 369-370 (2001) (Sosman, J., dissenting) (collecting sources, including after 1992). Though we have located little recent research on juror perceptions of rape complainants, the research and scholarship of which we are aware suggests that damaging stereotypes persist. Some jurors may continue to believe incorrectly that "real" victims will promptly disclose a sexual attack.
While more than a decade has passed since we last observed that "juries tend toward considerable and perhaps inordinate skepticism in rape cases," Commonwealth v. Licata, supra at 658, quoting Commonwealth v. Bailey, 370 Mass. 388, 394 (1976), that observation has continued vitality. Although many jurors may no longer harbor stereotypical assumptions concerning the behavior of "real" rape victims, others may still harbor stereotypical assumptions to the effect that victims will immediately disclose a sexual assault and that the absence of a timely complaint suggests fabrication of the assault. There is a continued need in sexual assault cases to counterbalance or address inaccurate assumptions regarding stereotypes about delayed reporting of a sexual assault or about sexual assault victims in general.
We reject any contention that the existing rules of evidence
Furthermore, delaying testimony about the existence of the prior complaint until after the defendant has damaged the victim's credibility with the "humiliating intimation that . . . [she] agreed to the attack or dreamt it up" can cause unwarranted prejudice to the Commonwealth. Commonwealth v. Bailey, supra at 397. It would wrest from a prosecutor the circumstances in which the evidence of the complaint is introduced. Other courts have similarly found these evidentiary doctrines to be inadequate substitutes for fresh complaint testimony. See, e.g., State v. Hill, 121 N.J. 150, 165 (1990).
b. Changes to existing doctrine. Our experience in reviewing the application of our "fresh complaint" doctrine in the thirteen years since the decision in Commonwealth v. Licata, supra, has led to the conclusion that some elements of our "fresh complaint" doctrine do not adequately reflect current knowledge
First, a requirement of "promptness" or "freshness" no longer withstands scrutiny as a cure to the problem of juror stereotyping in cases of sexual assault. To the contrary, it may exacerbate the very misunderstandings the rule aims to counteract — that those victims who report "freshly" are inherently more credible than those who report at a later time — and contradicts our present understanding that victims often do not promptly report a sexual assault for a variety of reasons that have nothing to do with the validity of the claim of assault. See discussion supra. The "promptness" rule thus benefits only those victims whose complaints are "fresh," while reinforcing discredited notions that victims will "naturally" promptly disclose the assault. See State v. Hill, supra at 164. At a minimum, the promptness requirement places the imprimatur of the court on the misimpression that most "real" victims raise an immediate "hue and cry." At worst, the rule rewards perpetrators who are especially brutal or threatening during and after an assault, and thereby successfully procure their victims' prolonged silence.
Under the doctrine as we modify it today, ostensible "delay" in disclosing a sexual assault is not a reason for excluding evidence of the initial complaint; the timing of a complaint is simply one factor the jury may consider in weighing the complainant's testimony. See, e.g., Greenway v. State, 626 P.2d 1060, 1061 (Alaska 1980); People v. Brown, 8 Cal.4th 746, 750-751 (1994); State v. Troupe, 237 Conn. 284, 298 (1996). Accordingly, we will no longer refer to this evidence as "fresh complaint" evidence, as "freshness" has no bearing on its admission. See Commonwealth v. Hyatt, 31 Mass.App.Ct. 488, 490, 492 (1991) (recognizing "fresh complaint" name discordant with disclosure after two years, although complaint testimony properly admitted). Rather, consistent with our focus on the evidence pertaining to the facts and circumstances surrounding the complainant's initial report of the alleged crime (discussed infra), we will henceforth refer to such evidence as "first complaint" evidence.
Second, in the future, we will no longer permit in evidence
Where feasible, that single complaint witness will be the first or initial complaint witness, i.e., the person who was first told of the assault, and may testify to the details of the alleged victim's first complaint of sexual assault and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief. See infra. It is the alleged victim's first complaint, the point at which the accusation first surfaced, that is the most pertinent to the jury's understanding of what motivated the victim to come forward and is the most useful in assessing the victim's credibility (including assessing any specific defense theories attacking that credibility). 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.
In limited circumstances, a judge may permit the testimony of a complaint witness other than, and in lieu of, the very "first" complaint witness. For example, where the first person told of the alleged assault is unavailable, incompetent, or too young to
We retain that aspect of our current doctrine that permits the first complaint witness to 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. Quincy Q., 434 Mass. 859, 874 (2001). We are aware that most jurisdictions adhere to the rule that evidence of the complainant's report should be limited to the fact of the complaint only,
Several aspects of our first complaint doctrine as now modified further protect defendants from the possibility of undue prejudice. First, as the Commonwealth will be limited to one complaint witness, our new rule takes into account any prejudicial "piling on" of such witnesses. Second, 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. See Commonwealth v. Scanlon, 412 Mass. 664, 670 (1992). Third, judges will retain their discretion to curtail direct or cross-examination to avoid any undue prejudice. Id. at 671 n.5.
In contrast to our prior rule enunciated in Commonwealth v. Peters, 429 Mass. 22, 30 (1999), the 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.
Also under our new rule, a first complaint witness may testify to the circumstances surrounding the initial complaint. By "circumstances," we mean that the witness may testify to 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. See People v. Brown, 8 Cal.4th 746, 762-763 (1994); State v. Woodard, 146 N.H. 221, 226 (2001). Contrast Commonwealth v. Quincy Q., 434 Mass. 859, 874-875 (2001) ("fresh complaint" testimony about complainant's demeanor viewed as witness's interpretation of complainant's word and inadmissible).
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, the evidence will serve no corroborative purpose and will not be admissible under the first complaint doctrine. For example, where the sole issue is the identity of the perpetrator, first complaint testimony will not be relevant or permissible under the doctrine. See, e.g., State v. Troupe, 237 Conn. 284, 305 n.20 (1996). See also Commonwealth v. Montanez, 439 Mass. 441, 458 (2003) (Sosman, J., concurring).
Jury instructions must be modified to reflect the changes to our doctrine adopted in this opinion. A proper instruction to the jury will now read:
As is the current practice, these instructions should be given to the jury contemporaneously with the first complaint testimony, and again during the final instructions. See Commonwealth v. Licata, supra at 660.
Finally, because the modification of the out-dated "fresh complaint" doctrine that we announce today is an "exercise of our power of superintendence `to regulate the presentation of evidence in court proceedings' [and] not a new constitutional rule," we apply the changes prospectively to only those sexual assault cases tried after the issuance of the rescript in this opinion. Commonwealth v. Dagley, 442 Mass. 713, 720-721 (2004), quoting Commonwealth v. DiGiambattista, 442 Mass. 423, 444-445 (2004). "In prior cases announcing new rules or requirements in the exercise of our superintendence power, we have declined to give the new rule or requirement retroactive effect." Commonwealth v. Dagley, supra at 720-721, and cases cited. The defendant is not entitled to the benefit of the new first complaint doctrine. See State v. Troupe, supra at 305-306 (applying similar doctrine prospectively). Contrast Commonwealth v. Adjutant, 443 Mass. 649, 667 (2005) (applying new rule of evidence to case where defendant argued for rule on direct appeal but otherwise applying new rule prospectively).
Conclusion. For the reasons set forth above, there was no error
"Whoever has sexual intercourse or unnatural sexual intercourse with a child under sixteen, and compels said child to submit by force and against his will or compels said child to submit by threat of bodily injury, shall be punished . . . ."