On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 96-10-1077.
Before Judges Skillman, Carchman and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this child sexual assault appeal, the primary issue is whether the trial court correctly instructed the jury that "[y]ou . . . may not consider the child's failure to complain as evidence weighing against the credibility of the child."
We conclude that this instruction deprived defendant of the opportunity to have the jury consider one of the factors relevant to an evaluation of the alleged victim's credibility. Therefore, we reverse defendant's convictions.
Following a jury trial, defendant was found guilty of three counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1); three counts of sexual assault, in violation of N.J.S.A. 2C:14-2b; and three counts of third- degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. The trial court sentenced defendant to twenty-year terms of imprisonment, with ten years of parole ineligibility, on each count of aggravated sexual assault, ten-year terms of imprisonment, with five years of parole ineligibility, on each count of sexual assault, and five-year terms of imprisonment, with two and one-half years of parole ineligibility, on each count of endangering the welfare of a child, all to be served concurrently. Thus, defendant's aggregate term is twenty years imprisonment, with a ten-year period of parole ineligibility. The court also ordered defendant to comply with the Megan's Law registration, notification and lifetime community supervision requirements. See N.J.S.A. 2C:7-1 to -11; N.J.S.A. 2C:43-6.4.
The victim of the offenses was defendant's daughter, Susan. *fn1 The offenses allegedly started shortly after defendant and Susan's mother, Mary H., separated in November 1984, when Susan was six years old. Susan resided with Mary H. after the separation, but defendant had frequent visitations with her until she was twelve. It was during those visitations that defendant allegedly committed the sexual assaults. Susan testified about seven separate assaults that occurred over a five to six year period ending in the summer of 1990, before she entered the seventh grade. According to Susan, defendant vaginally penetrated her on each of those occasions. Most of the assaults occurred at night, while Susan was sleeping in the same bed as defendant. Susan testified that defendant called her "his little mud turtle and his pink bunny" during several of the assaults. She smelled alcohol on defendant's breath as he was assaulting her. Susan testified that she did not tell anyone about the assaults because she did not know what was going on and did not want to get defendant into trouble. According to Susan, defendant said that what they were doing was their "little secret."
On May 22, 1990, Susan and defendant had a fight because she refused to sit on his lap. After receiving a call from Susan, Mary H. arrived with the police and Susan went home with her. Mary H. then filed a motion seeking to terminate defendant's visitation with Susan. In support of her motion, Mary H. attached a letter from Susan in which she told defendant that it was her decision not to visit with him because he only gave her a card on her twelfth birthday, would not let her see Mary H. when she was in the hospital, and treated her like a baby. Susan ended the letter by stating: What I want to know is, where do you get that the whole fight was because I wouldn't get off the phone? The real reason is you were ordering me to sit on your lap like a 4 year old kid and I finally had the guts to stand up to you and say, "NO", after so many years.
Mary H.'s motion was denied, and the court continued defendant's right of visitation with Susan.
Nevertheless, Susan stopped visiting with defendant sometime in 1991. On her last visit, Susan went to defendant's house with a friend, but she and the friend became upset when defendant refused to let them make "Steakums" and made a negative comment about the friend's weight. Consequently, they called the friend's parents to pick them up.
Susan did not report defendant's alleged sexual assaults during the following year-and-a-half although she was interviewed during that period by an investigator in the Morris County Prosecutor's Office after defendant filed a complaint alleging that Mary H. was interfering with his right of visitation. Susan was also interviewed by a hospital counselor and an investigator for the Division of Youth and Family Services during that same general period. Susan testified that she failed to report the sexual assaults at that time due in part to a lack of trust in the persons interviewing her and in part to a belief that no one would believe her story.
According to Susan, in March 1993, when she was a freshman in high school, defendant called her and said that he missed her, and wanted to lie down with her and touch her again. Because defendant's call bothered her, Susan told the nurse at her high school, with whom she had developed a close relationship, that defendant had taken showers with her and used to touch her. Susan did not tell the nurse about the acts of penetration because she did not think the nurse would believe her and because so much time had passed. The nurse then contacted DYFS, but after a meeting with Susan, Mary H., and a school guidance counselor, DYFS apparently decided not to pursue the matter.
In February 1995, while she was hospitalized for two months for eating disorders, Susan participated in individual and group therapy, during which she told hospital staff persons that defendant had touched her, kissed her, slept in the same bed with her, and taken showers with her. She also told the hospital staff that defendant did not touch her sexually. According to Susan, she did not say anything about the acts of penetration at that time because she did not think anyone would believe her and because she did not trust anyone at the hospital.
Following her discharge, Susan began to see Ann Morris, a counselor at the hospital who also maintained a private practice. The main focus of Morris' treatment of Susan was her eating disorder and conflicts with her mother. In January 1996, Susan told Morris about defendant's alleged acts of sexual penetration. According to Susan, she told Morris about the assaults because Morris was easy to talk to and made Susan feel comfortable. After this disclosure, Morris told Susan that if she desired, Morris could get the right people involved so that something could be done. Susan subsequently told a DYFS worker and a detective in the Morris County Prosecutor's Office about the alleged assaults, which led to defendant's indictment.
At trial, Susan related the details of the seven alleged sexual assaults committed by defendant and her disclosure of the assaults. On cross-examination, Susan admitted that she had a rocky relationship with her mother and always felt she did not have her mother's attention because her mother put men first. She testified that she wanted to get her mother's attention, in part because her mother had been married four times, and one way she could get her mother's attention was to mention defendant's name. Susan acknowledged that in the spring, summer and winter of 1995 to 1996, she was upset with her mother because her mother had gotten married and gone on a honeymoon, missing Susan's birthday. Susan started skipping school in December 1995, resulting in her mother "grounding" her and taking away her driving privileges.
In addition, both the State and defendant presented expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS), a psychological theory explaining why sexually-abused children delay reporting abuse. The State's expert Dr. Anthony V. D'Urso explained that the syndrome involves five characteristics: (1) secrecy; (2) a sense of helplessness by the child; (3) coercion or accommodation, meaning someone tells the child not to tell anyone or the child adjusts to the abuse; (4) delayed disclosure of the abuse; and (5) recantation or retraction by the child if he or she feels unsupported after the disclosure. D'Urso testified that abused children tended to break down psychologically, exhibiting stress and other behaviors reflective of post- traumatic stress disorder, including depression, anxiety and eating disorders. It is common for a child not to disclose abuse even when living in an environment where people can help, because the disclosure involves taboo behavior that the child feels is shameful.
Defendant's expert, Dr. David Brodzinsky, stressed that other factors could lead to the same behavior described by CSAAS, and both experts agreed that the syndrome is neither a predictor of behavior nor a tool to diagnose sexual abuse. Both experts also agreed that a percentage of children fabricate allegations of sexual abuse, but they disagreed about how frequently this occurs. Brodzinsky indicated that the fabrication of the abuse typically comes from older children in the pre-teen to teen years, who are motivated by anger at a parent, jealousy, or a need for attention.
On appeal from his convictions based on this evidence, defendant presents the following arguments:
I. IN VIOLATION OF DEFENDANT'S FEDERAL
AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL, THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LAW REGARDING PRIOR INCONSISTENT STATEMENTS.
II. IN VIOLATION OF DEFENDANT'S FEDERAL
AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, TO DUE PROCESS AND TO A FAIR TRIAL THE TRIAL COURT FAILED TO GRANT DEFENDANT'S REQUEST FOR A PSYCHOLOGICAL EVALUATION OF THE ALLEGED VICTIM.
III. DEFENDANT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL WERE VIOLATED BY THE TRIAL COURT'S FAILURE TO EXCLUDE THE TESTIMONY OF DR. ANTHONY D'URSO REGARDING CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME.
IV. THE CONFUSING AND CONTRADICTORY CHARGE
GIVEN TO THE JURY ON FRESH COMPLAINT AND THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME DENIED DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL ...