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

AuthorFeiner, 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


    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


    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


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