The whole truth: restoring reality to children's narrative in long-term incest cases.

• Author: Feiner, Leslie

1. Introduction

   M.B., a fifteen-year-old girl, states that one night, after living with

   her stepfather for over six years, she engaged in an act of sexual

   intercourse with him.(1) Although she claims to have submitted to him out

   of fear, she concedes that he neither forced nor threatened her that

   night.(2) A short time after making her allegation, she runs away from

   home, refusing to speak to police for over two weeks.(3)

   Her stepfather denies her accusation, despite being found passed

   out in her bed. He states that he had gotten very drunk in a bar,

   come home and stumbled into the wrong room.(4) Indeed, by the time

   the case comes to trial, the State stipulates that he had been to the bar

   in question, gotten drunk, and even had sex with a woman he met at

   the bar.(5) Why, he asks, would he then have sex with his stepdaughter?

   Although an inquiry might naturally focus on the question of

   which story to believe, the criminal justice system asks a much

   narrower one at trial: Is the complainant's story believable beyond a

   reasonable doubt? To answer that question, jurors would strictly

   scrutinize M.B.'s narrative of events in light of their own ideas of what

   is credible.(6) Such scrutiny would likely center on the incongruity of

   M.B.'s passive acceptance of her stepfather's unprecedented

   solicitation. Even though statutory rape and incest cases do not require force

   on the part of the defendant or lack of consent on the part of the

   victim, a fact-finder is likely to believe that the "normal" fifteen year

   old in M.B.'s position would show some signs of shock, surprise or

   resistance. M.B.'s failure to do so, coupled with her subsequent

   avoidance of the police, would likely undermine her credibility with a jury.

   Jurors scrutinizing such a narrative today would also deliberate in

   the current atmosphere of disillusionment regarding the credibility of

   child victims in sexual abuse cases. Despite the public's education

   and acceptance that sexual abuse is prevalent in family settings,(7) some

   writers have recently described a child abuse "hysteria."(8) Children,

   some say, will independently fabricate claims of sexual abuse to

   control,(9) to punish,(10) or to cover up their own promiscuity." Some

   psychoanalytic experts still argue that children fantasize,(12) and it has

   become increasingly accepted that parents can elicit from their

   children false allegations of sexual abuse where child custody is in

   dispute.(13) Several widely publicized courtroom trials have also taught

   the public to suspect allegations that children have made against

   daycare workers.(14) Thus, despite an increased recognition that child

   molestation is a pervasive problem in society, there is also a clear message

   that the main, and often only witness to this kind of crime,(15) may not

   be credible.

   Given this societal background, the incongruities in M.B.'s story,

   and the lack of evidence corroborating her charge, it would not be

   surprising to see this defendant acquitted. And yet, M.B.'s narrative

   describing her stepfather's conduct and her own behavior might not

   be incongruous or implausible at all. For it has become well-accepted

   in the psychiatric community that children subjected to repeated acts of

   sexual abuse will not struggle or resist, but will accommodate to such

   abuse over time, becoming passive and seemingly accepting of

   repugnant sexual acts.(16) Indeed, the phases abused children pass through

   and the coping behaviors they develop to adjust to repeated sexual

   abuse has come to be known as the "Child Sexual Abuse

   Accommodation Syndrome."(17) Accommodation as a component of patterned

   sexual abuse is not only accepted among experts -- the courts have also

   acknowledged its relevance in cases of long-term incest or sexual

   abuse.(18)

   M.B.'s stepfather was not charged with sexually abusing her over

   a period of time, however, but rather for abusing her only once. The

   other times, beginning at age nine or ten, that this defendant had

   abused or tried to abuse her, did not appear in the indictment.(19) The

   times he threatened her with a knife to make her submit, and told her

   that her mother would put her in a facility if she sought help, all

   occurred prior to the charged incident.(20) Under the rules of evidence,

   each of these acts thus carried the designation of "uncharged crimes

   or bad acts."(21) In a state like New York, evidence of these acts would

   be inadmissible because New York strictly bans the admission of

   evidence of uncharged crimes in long-term incest or sexual abuse

   cases.(22) In such jurisdictions, a defense attorney can thus block jurors

   from hearing those components of a victim's narrative that place the

   charged acts in a context that would make the incongruous much

   more understandable.

   New York's approach to uncharged crimes in long-term incest

   cases exists at a time when the rules in most other jurisdictions vary

   widely, but where most courts generally do allow juries to hear

   evidence of uncharged crimes in sex crimes cases, despite common-law

   and statutory prohibitions on presenting evidence of a defendant's

   bad character.(23) The roots of this permissiveness appear to stem from

   a belief that rapists and child molesters typically go unpunished due

   to "legal technicalities."(24) As a result, many -- but not all -- states have

   bent traditional common law prohibitions regarding uncharged

   crimes and admitted them in cases involving rape and child

   molestation.(25)

   Recent federal enactments have injected even more uncertainty

   into the issue of the admissibility of uncharged crimes in sex crimes

   cases. On January 9, 1995, Federal Rules of Evidence 413, 414 and

   415 took effect, making a defendant's past history of rape or sexual

   abuse presumptively admissible in federal trials involving such

   charges.(26) In effect, the new federal rules reverse both the

   common-law prohibition on uncharged evidence of bad character, as well as

   FRE 404(b)'s statutory codification of that prohibition.(27) The new

   rules have prompted writings from scholars and practitioners who are

   concerned about the creation of special, and perhaps prejudicial,

   rules for sex crimes cases.(28) Legal challenge to the new rules on such

   grounds seems certain, and the outcome will be significant, not only

   within the federal system, but in any state that has adopted or is

   contemplating adoption of these rules.(29)

   With such challenge likely, it seems all the more appropriate to

   examine what could be considered FRE 414's polar opposite, the New

   York approach. For if FRE 414 is considered illegally permissive, the

   courts will have to consider where proper boundaries regarding the

   admissibility of uncharged crimes should lie. Such examination

   would show that New York's restrictive extreme is equally

   unwarranted, for the New York approach is not only doctrinally unsound,

   but also has devastating effects on an adolescent's ability to present a

   credible narrative in a case of long-term sexual abuse.

   This article suggests that in a number of emotionally wrenching

   long-term incest cases(30) in New York, judicial roadblocks have unjustly

   stacked the deck against the traumatized adolescent complainant(31)

   who, in order to cope with continuing abuse, accommodates it to the

   point where she appears to be a willing participant. More specifically,

   the New York courts' overly broad interpretation of its evidentiary rule

   barring testimony regarding a defendant's uncharged crimes has

   prevented such a child victim from explaining for the jury how her

   distorted and otherwise inexplicably passive reactions to the charged

   sexual offenses were shaped by earlier uncharged sexual abuse at the

   abuser's hands. By shifting the jury's attention from the defendant's

   crimes to the victim's "unfathomable" behavior, the courts have made

   it extremely difficult for juries to perceive such victims as credible.

   The rule barring uncharged crimes, as the Court of Appeals

   stated in People v. Molineux,(32) and refined in subsequent cases,(33) is that

   a jury may not hear testimony that a defendant previously committed

   similar crimes if the sole purpose for introducing such testimony is to

   instill the belief that defendant's past propensity makes him

   responsible for the presently charged crime. However, the New York courts

   also state that if a prosecutor convincingly shows some purpose, other

   than criminal propensity, to which the evidence is relevant, the

   uncharged crimes could be admitted so long as their probative value

   outweighs the possible prejudice to the defendant.(34) The rule and its

   possible exceptions thus become the battleground for prosecutor and

   defense counsel.

   In criminal cases generally, the specific permissible purposes

   delineated by the Molineux court -- identity, motive, common scheme or

   plan, intent and knowledge(35) --have been treated as illustrative and

   not exclusive.(36) However, in sex crimes cases it is quite rare to see

   evidence of a defendant's history of sexual abuse admitted into evidence

   unless offered for one of these purposes.(37) Enabling a child to

   provide the context for her otherwise "incredible" behavior by reference

   to a defendant's earlier uncharged crimes is not one of the

   stated exceptions, and in fact has been expressly rejected by the Court

   of Appeals in New York.(38)

   However, in the last twenty years, rigid adherence to the Court of

   Appeals' narrow interpretation of the Molineux "exceptions" has had a

   high cost in the most severe cases of prolonged incest, because in such

   cases, it has been rare for prosecutors to be able to charge a

   defendant with every act of statutory rape, sodomy, sexual abuse or incest he

   committed against the victim. jurisdictional restrictions, both

   geographical(39) and temporal,(40) and notice requirements(41) pruned a large

   number of events from a potential indictment, particularly those that

   were more remote in time. If the surviving charged counts could

   clearly depict for a jury the forces that caused a child to apparently

   accept...