Crying out for change: a call for a new child abuse hearsay exception in New York State.

• Author: Fell, Christopher T.

1. INTRODUCTION

   According to a 2000 report by the U.S. Bureau of Justice Statistics, nearly seventy percent of all sexual assaults in the country are committed against children. (1) In 1990, a U.S. Department of Health and Human Services task force declared child sex abuse a national emergency. (2) While the age with the greatest proportion of assaults reported was fourteen, more than half of all child victims were under twelve. (3) Of those children under age twelve, four-year-olds were at the greatest risk. (4) According to UNICEF, "5 [to] 10 percent of girls and up to 5 percent of boys [in industrialized nations] suffer penetrative sexual abuse." (5) Up to three times that amount experience some other type of sexual abuse. (6)

   In 2007, Child Protective Services (CPS) in the United States investigated 3.2 million cases of suspected child maltreatment. (7) There were 164,831 maltreatment cases reported to New York State Child Protective Services in 2009. (8) 51,348 of those cases were indicated, (9) which means that there was enough evidence to continue the investigation because an investigator believed that the allegations were not unfounded. (10)

   Victims of child abuse (11) often do not disclose immediately after the abuse has taken place. (12) Sometimes, victims of abuse keep the events to themselves for many years. (13) For example, in a 1992 report, the National Victim Center & Crime Victims Research and Treatment Center found that only sixteen percent of sexual assault victims ever report the assault to the authorities, or fail to provide a full report. (14) Frequently, the child victim is unaware of the wrongful nature of the conduct or that what has occurred is not "normal." (15) The victim also often experiences feelings of confusion (16) and guilt, a desire to forget the incident, a fear of not being believed, and in many instances, may remain silent as a result of intimidation by the abuser. (17) If victims do eventually disclose the abuse, the disclosure is central to the prosecution's case: "Abusers may leave no physical marks on their victims, and children often do not resist outwardly or physically. Accordingly, there is usually little physical evidence to corroborate the child's allegations, and the child-victim is often the only witness [to the crime]." (18) So if a child discloses the abuse, testimony about what the victim said, to whom it was said, when it was said, and how the victim appeared while saying it, are important for establishing a strong case. (19) However, testimony about the disclosure is generally regarded as hearsay, and hearsay is typically inadmissible unless it fits within a hearsay exception. (20)

   Children are unlike any other witnesses or victims. (21) A delayed disclosure and the reason for the delay are part of the story describing an incident of child abuse; each case needs to be told in completion in order for the jury to get a full and fair picture at trial. (22) Victims are often the only witnesses to the crime. (23) Although New York State has a prompt outcry exception to the hearsay rule, which allows the "fact of a complaint" to be admitted into evidence, (24) the exception is insufficient to adequately protect child victims and effectively prosecute perpetrators of child abuse. In order for a child's entire story to be told, this exception must be broadened to include delayed disclosures, as well as the contents of the disclosure statement.

   This article proposes a change to the New York State law concerning outcries of abused children. Part II discusses current New York State law about disclosures made by child victims of sexual abuse. Part III discusses child abuse disclosure law in other United States jurisdictions and how it can inform advances in New York State law. Finally, Part IV proposes a new law for New York State that is consistent with the jurisprudential trend in the United States and will more adequately protect child victims from prejudicial exclusion of evidence in sex abuse trials.

2. NEW YORK STATE LAW AND CHILD ABUSE DISCLOSURES

   1. Prompt Outcry and Its Requirements

      The prompt outcry exception has its roots in English common law. (25) Under English common law, victims of violent crimes were required to raise a "hue and cry" (hutesium et clamor) in order for the crime to be prosecuted: (26)

      When a felony is committed, the hue and cry (hutesium et clamor) should be raised. If, for example, one comes upon a dead body and omits to raise the hue, one commits an amerciable offence, besides laying oneself open to ugly suspicions.... The neighbours should turn out with the bows, arrows, knives, that they are bound to keep and, besides much shouting, there will be horn-blowing; the 'hue' will be 'horned' from vill to vill. (27) By the 1700s, courts learned that the hue and cry rule was largely ineffective because it did not help capture the perpetrator and even an accomplice could raise a cry, distracting authorities from finding the perpetrator. (28) Ironically, the courts continued to require a hue and cry in rape cases. (29) The rationale for treating rape cases differently was the belief that "after becoming the 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 violent had been done." (30) If no cry was raised, the jury was instructed to draw a negative inference about the veracity of the victim's allegation. (31)

      American courts treated a victim's failure to make a prompt outcry similar to an inconsistent statement--if a victim did not promptly outcry, her lack of an outcry was at odds with her in-court testimony about the rape. (32) Therefore, to prove its case, the prosecution was permitted to introduce evidence of a fresh complaint from witnesses. (33)

      In a classic exposition of the original reasoning underlying the prompt outcry rule, the New York Court of Appeals stated:

      It is a general rule that the evidence of a witness can never be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath. Such statements, like all hearsay evidence, are excluded as unsatisfactory and incompetent. But there is an exception to the rule in the case of rape. The outrage in such a case upon a virtuous female is so great that there is a natural presumption that at the first suitable opportunity she would make disclosure of it; and she would be so far discredited if she did not make the disclosure, for the purpose of confirming her evidence where she is a witness, such disclosure may be received. But where the disclosure is not recent, as soon as suitable opportunity is furnished, the reason for receiving it in evidence does not exist, and the principle justifying its reception does not apply. (34) The rule still exists in New York State. (35) In New York State, the fact that a victim of sexual abuse made a complaint may be entered into evidence if the complaint was made "promptly" after the crime took place. (36) Generally, a complaint is timely for the purposes of the prompt outcry exception if it was made "at the first suitable opportunity." (37) New York courts have found that complaints made as late as two months after the crime occurred were sufficiently prompt. (38)

      Generally, if the court finds that the complaint was promptly made, the prosecution may introduce into evidence the fact that a complaint was made, but not the details of the complaint. (39) Although some courts have been more liberal in their application of the rule by admitting some of the contents of the complaint, (40) as a general rule, only the fact that the complaint was made is admissible. (41)

      The prosecution may call any witness who heard the victim's statements to testify as to the promptness of the complaint and the circumstances under which the complaint was made. (42) Evidence of the prompt outcry is entered not for the truth of the matter asserted in the outcry, but for the non-hearsay purpose of showing that a disclosure was made. (43) In order to introduce the content of the complaint, the complaint itself must fall into one of the traditional hearsay exceptions, like the excited utterance exception, (44) the spontaneous declaration exception, (45) or the prior consistent statement offered to rebut a claim of recent fabrication exception. (46)

   2. Avenues for Admission of Delayed Disclosures Under Other Hearsay Exceptions

      Even if the outcry is insufficiently prompt, it may be admitted for a non-hearsay purpose. (47) One possible avenue for admitting delayed disclosures is the non-hearsay purpose of "information acted upon." (48) The jury needs to know why the defendant was arrested years after the alleged molestation. (49) The disclosure completes the narrative: the child was afraid to tell the mother for years, he eventually told the mother, the mother told law enforcement, and law enforcement acted by arresting the defendant. (50) There are several cases that support admissibility through this avenue. (51)

      For example, in the case of People v. Gregory, the victim disclosed the abuse nearly a year after the last alleged molestation. (52) The trial court--over defense counsel's objection--allowed a police officer to testify that he became aware of the incident through a child abuse hotline and that the child told him that abuse had occurred. (53) The court admitted the testimony for the non-hearsay purpose of explaining an officer's actions and the sequence of events in an investigation. (54) The Third Department upheld the trial court's decision. (55)

      Outcries from child abuse victims are prior consistent statements--they are statements made before trial, typically not under oath, that the prosecution would offer as statements consistent with their trial testimony. (56) However, only if the defense alleges that the complaining witness has a recent...