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State v. Bethune

Decided: August 1, 1990.


On certification to the Superior Court, appellate Division, whose opinion is reported at 232 N.J. Super. 532 (1989).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Justice Clifford concurs in the judgment. The opinion of the Court was delivered by Garibaldi, J.


In this appeal, as in State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990), also decided today, we consider the application of the fresh-complaint rule. This case involves the application of that rule to cases involving young children. Three issues are presented: (1) whether statements elicited from children who after being questioned complain of having been sexually abused retain the degree of self-motivation necessary to qualify under the fresh-complaint rule; (2) how much detail is permissible as part of a fresh complaint; and (3) what should the trial court charge to guide the jury in its weighing of fresh-complaint evidence.


On April 21, 1983, Mary Bossack, a representative of the Division of Youth and Family Services ("D.Y.F.S.") took R.B., age five, to Newark's United Hospital Medical Center to ascertain whether the child had been sexually abused. D.Y.F.S. had been alerted to the possibility of abuse because R.B.'s eight-year-old sister, S.M., had entered Newark Beth Israel Medical Center four days earlier, complaining of abdominal pain. A physical examination revealed she had been sexually assaulted and infected with gonorrhea. Joseph Bethune, who lived in the household with the children and was the mother's romantic companion, was suspected of having perpetrated the sexual abuse. Ms. Bossack began an investigation by taking R.B. and her three-year-old sister to the hospital.

At the hospital, Maria Feliciano, a social worker, asked the child whether she had been molested. R.B. denied having been sexually abused. Dr. Renee Baskerville, a staff doctor, then

gave R.B. a complete physical examination. She found redness around the vaginal entrance, two tears in the hymen, and no unusual marks in the anal area. The physical exam did not provide conclusive evidence of sexual abuse, and the child denied once more any improper treatment at the hands of Joseph Bethune.

Dr. Baskerville did notice, however, that the child responded atypically to the gynocological exam. She was not reluctant to be examined and showed no concern when Dr. Baskerville inserted her finger into her vagina. Dr. Baskerville found this lack of response abnormal in a young child and possibly indicative of the child having been subject to sexual abuse. She admitted R.B. to the hospital and referred the case to Peggy Foster, a social worker at the hospital, for further investigation.

On April 22, 1983, Ms. Foster interviewed the child in the hospital's playroom and used anatomically correct dolls to engage the child in conversation. Ms. Foster asked R.B. to identify by name different body parts, such as the nose, the mouth, and the genitalia. R.B. labeled the vagina the "privates" and the penis the "dicky." Ms. Foster then pulled up the doll's dress and asked the child whether anyone had touched her vagina. The child responded that "Joey had put his dicky in her privates many times," and demonstrated this by placing the male doll on top of the female doll. Ms. Foster asked R.B. the number of times she had been assaulted and the child counted ten times on the social worker's fingers. R.B. also said she had told her mother, Patricia McQueen, of the abuse and that her mother had said she would make defendant leave the household. However, she never did. In addition, the child complained of painful urination after the incident.

As a result of the hospital's finding of sexual abuse, R.B. was taken from her home and placed in foster care, and Joseph Bethune was indicted on two counts of aggravated sexual assault. At trial, R.B. testified to the alleged assault. Specifically,

the child detailed an incident that had occurred approximately one to two weeks prior to her admission to the hospital in which defendant had entered the bedroom where she slept with her two sisters, made her lie on her back, and inserted his penis into her vagina and anus.

Ms. Bossack, Ms. Feliciano, and Ms. Foster also reiterated their versions of the facts. Ms. Foster's testimony regarding what the child had told her was admitted into evidence under the fresh-complaint rule. Dr. Baskerville testified about her medical examination of R.B., and also added her expert opinion, based on three-years experience as a pediatrician, that her physical findings, although not conclusive of abuse, were also not inconsistent with the possibility of sexual abuse.

Joseph Bethune took the stand to dispute ever having abused R.B. Mr. Bethune's pastor testified to defendant's good character, even though he admitted not having known him during the time the abuse allegedly occurred. Mr. Bethune's sister and R.B.'s grandmother also testified to their belief that Ms. McQueen was a good mother and that Mr. Bethune was good to the children. Finally, Patricia McQueen herself took the stand and denied ever having known that Joseph Bethune was abusing the children. At one point, however, she testified that she regretted not having asked him to leave the household, in order to eliminate all the subsequent troubles.

The jury convicted defendant on two counts of aggravated sexual assault. The Appellate Division affirmed the conviction. We granted defendant's petition for certification and summarily remanded the matter to the Appellate Division "for clarification of its disposition of the 'fresh complaint' issues raised by defendant. . . ." 114 N.J. 304, 554 A.2d 857 (1988). We retained jurisdiction.

On remand, the Appellate Division again affirmed defendant's conviction. 232 N.J. Super. 532, 557 A.2d 1025 (1989). The Appellate Division held that because an abused and troubled young child may ...

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