Fresh Complaint and
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:
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.
When there is no evidence to prove when the
child was raped, a
will generally choose a broad range
of dates. The alleged perpetrator might have an alibi for one
but would likely not have one for every day during a period of, say,
years -- with the exception, for instance, of incarceration or
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.
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: Beyond the scope.
CHILD (adopting DA's statement): Yes.
YOU: Graphic details.
CAVEAT: A fresh-complaint witness may testify to details if the testimony is merely a short summary of the testimony the child himself or herself gave about the events. Fresh complaint testimony must not be used to fill in the gaps. REMINDER: Be sure to request the notes the fresh complaint witness has generated. They may contain information different than that in the complaint to the administrative agency.
FAQ: Does the child have to testify?
ANS: Only in special circumstances would a child not need to testify.
See your state's statute.