Prosecution of predators who commit sexual abuse against women and children will no longer be shackled with illogical and unnecessary constraints that have made obtaining a conviction in such cases far too arduous and unpredictable

By Anil Madan

On July 9, 2021, the Appeals Court of Massachusetts handed down an opinion that is likely to be heralded as one of the most significant advances in American jurisprudence in the prosecution of predators who commit sexual abuse against women and children. From now on, the prosecutors in such cases will no longer be shackled with illogical and unnecessary constraints that have made obtaining a conviction in such cases far too arduous and unpredictable.

No, this change does not reduce the requirement of proof of guilt beyond a reasonable doubt. That familiar burden of proof remains intact. Even so, the change represents welcome progress in erasing antediluvian thinking.

Before we get to the ruling, consider that our national Constitution defines Treason against the United States and has this provision: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Note that an out-of-court “confession” does not count. One can understand that for a charge as serious as Treason, there is some level of corroboration sought as to an overt act—in fact, the same overt act.

In the case at hand, Commonwealth of Massachusetts v. Colon, the defendant was charged with a slew of sexual offenses against a minor under the age of 14. He was convicted of rape and indecent assault. The sordid details set out in the opinion of the Appeals Court do not bear repeating.

The principal point on appeal was the convicted defendant’s challenge that the evidence was insufficient. The victim testified about the defendant’s actions. At the time, she was thirteen.

The defendant argued on appeal that “there were no witnesses to the alleged assaults,” “no physical evidence,” “no medical or forensic evidence,” and “no expert testimony.” 

The Appeals Court rejected this attempt to undo the conviction. The language of Justice Rubin’s opinion merits extended quotation:

“Notwithstanding the defendant’s argument to the contrary, the victim’s testimony, as credited by the jury and evidenced by their verdict, suffices to support the defendant’s convictions. Surprisingly, the Commonwealth cites no case, nor have we found one, that simply states what we now hold: The sworn testimony of the victim of a sexual assault, including rape, is evidence of the facts asserted. The testifying victim is a witness. We reject the defendant’s contention that corroborative, extrinsic, or forensic evidence, or expert or third-party witness testimony, is required to support a conviction of rape or sexual assault where the victim testified as a witness at the trial. Of course such evidence, if properly admitted, may corroborate the victim’s testimony, but it is not required to sustain a conviction.” 

In short, what the Appeals Court emphasized is that the victim’s testimony, which the jury found to be credible, was sufficient, standing alone, to support a finding beyond a reasonable doubt as to each of the convictions.

Although this case does not make new law, it clarifies the law in an unmistakable way. Again, Justice Rubin: “The idea that long infected our legal system that the victim’s testimony in sexual assault and rape cases is less credible than the testimony of victims in cases involving other types of crimes –- an idea that reflected nothing more than sexism and an unwillingness on the part of our courts to treat sexual crimes as the gravely serious matter that they are -– has been rejected both by statute and by common law.”

Justice Rubin also clarified some other points. It is not necessary in such cases that the victim produce evidence of a prompt contemporaneous complaint. And he cited an earlier Massachusetts case (which the U.S. Supreme Court refused to review) stating that “the overwhelming body of current empirical studies, data, and other information establishes that it is not inherently ‘natural’ for the victim to confide in someone or to disclose, immediately following commission of the offense, that he or she was sexually assaulted,” and rejecting “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.”

This case emphasizes that the old rule that the prosecution has to establish that a victim of sexual abuse made a “fresh complaint” is no longer the law.

In the earlier Massachusetts case, the Supreme Judicial Court of this Commonwealth explained: “Corroborative evidence, including ‘first complaint’ evidence, is of course still admissible, but it is permitted in order to overcome, not give voice to, the societal tendency to disbelieve sexual assault victims, and the prejudicial misperception that ‘real’ victims will promptly disclose a sexual attack. Its purpose is to blunt the force of juror bias, and where such evidence is introduced, the jury must now be instructed that sexual assault complainants may delay reporting the crime for a variety of reasons.”

On related matters, the Massachusetts Rape Shield Law adopted in 1977 excludes evidence of the victim’s past sexual conduct as a “defense” to a rape charge. Nor is evidence of a general reputation for unchastity any longer admissible as a defense. And it was only in 1998 that the legislature amended the law relating to charges of drugging with intent to stupefy or overpower a victim with intent of having sexual intercourse. Since then, such a charge can be proved with the testimony of only one witness only.

The concluding paragraph of Justice Rubin’s opinion is also worth reading:

“Instead, today, two bedrock principles of our law are that alleged victims of sex crimes are to be treated equally with other alleged victims of crime with respect to credibility, and that those against whom such crimes may or have been perpetrated are fully worthy of legal protection. As would be true were this any other type of criminal case, therefore, the victim’s testimony alone, believed as it was by the jury, suffices to support the defendant’s convictions.”

It is refreshing to read an appellate court opinion that is crafted with care and commonsense.

And it’s about time.


* Published in print edition on 20 July 2021

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