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State v. P.H.

February 05, 2004


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 353 N.J. Super. 527 (2002).


The issue in this appeal is whether evidence of belated disclosure may be considered in the jury's evaluation of a child sexual assault victim's overall credibility and whether limiting instructions to the jury violated defendant's confrontation and due process rights.

Susan (fictitious name) is the daughter of defendant, P.H.. For seven years following the separation of her parents in 1984, Susan would visit with defendant. During that period of time, Susan was between six and twelve years old. At the time of trial, Susan was an adult. The complaint alleged that defendant sexually abused Susan, in particular during the overnight visits. Susan alleged that the abuse took various forms, including P.H. sleeping and showering with her, inappropriate sexual touching, and penetration.

Defendant elicited evidence at trial that Susan never reported any of the alleged sexual assault incidents, despite her numerous encounters with adults who questioned her about her relationship with her father, including DYFS investigators. Defendant contended that it was not until 1996, during the course of outpatient therapy in connection with her anorexia and bulimia condition, that Susan first told anyone of the sexual assault incidents. Before that, Susan had referred to the sleeping and showering together and the touching and kissing, but nothing else.

At trial, both the State and defendant presented expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS), with the State expert detailing the five elements of CSAAS: secrecy, a sense of helplessness by the child, coercion or accommodation, delayed disclosure of the abuse, and recantation. Experts on both sides agreed that evidence of CSAAS is not determinative of whether sexual abuse, in fact, occurred. The defense focused on Susan's delay in reporting the alleged abuse, and stressed that such delay, combined with her other behaviors, undermined the veracity of her sexual assault charges.

At the close of evidence, the State asked the trial judge for a "lack-of-fresh-complaint" charge, derived from State v. Bethune, 121 N.J. 137 (1990), that would instruct the jury to disregard evidence of Susan's delay in reporting the alleged crimes when determining Susan's credibility. Defendant objected. The court ultimately agreed and charged the jury accordingly. In addition, the court charged the jury on the guidelines pertinent to its consideration of expert CSAAS evidence, developed as a result of this Court's decision in State v. J.Q., 110 N.J.

554, 579-581 (1993). In particular, the court charged: "The weight to be given to this testimony is entirely up to you. You may give it great weight, slight weight, anywhere in between or you may in your discretion disregard it completely." The jury returned a verdict finding defendant guilty on all counts. Defendant was sentenced to an aggregate term of twenty years imprisonment, with a ten-year period of parole ineligibility. He also was ordered to comply with the Megan's Law registration, notification and lifetime community supervision requirements, as set forth in N.J.S.A. 2C: 7-1 to -19 and N.J.S.A. 2C: 43-6.4.

The Appellate Division, in a majority decision, reversed. The majority determined that defendant's due process and confrontation rights were violated by instructions that precluded the jury from considering the belated nature of Susan's disclosure in the context of assessing her overall credibility. The majority also found the combination of jury charges given here to be contradictory and confusing. One member of the panel dissented, taking the position that the "lack of fresh complaint" charge did not prohibit the jury from considering Susan's silence, or her credibility generally; rather it only prevented the jury from considering that silence against her credibility.

The State has appealed as of right from the judgment below.

HELD: The instructions given at trial were contradictory and confusing. They improperly suggested that, when undertaking to evaluate the credibility of an alleged child victim of sexual assault, jurors could not consider for any purpose the child's delay in reporting the alleged abuse. Defendant's conviction must be reversed.

1. Among the most fundamental of procedural protections afforded a criminal defendant is the right to confront and cross-examine accusing witnesses. In limited circumstances a trial court may exclude evidence helpful to the defense when exclusion reflects the court's serious concerns about the interests of fairness and reliability. Striking the appropriate balance between a defendant's right to confrontation and society's interest in adjudicatory reliability is a sensitive task in the context of a child sexual abuse trial. That balancing must take into account the need for a fair trial of the accused, the nature of the alleged crime, and the overall difficulty involved in prosecution of a case in which the victim is a child and the offense occurs in private. Numerous courts have concluded that the constitutional guarantee of procedural fairness requires that a defendant be allowed to conduct cross-examination or present impeaching evidence concerning a child witness's belated disclosure of alleged abuse as one of the factors relevant to credibility. (Pp. 12-15)

2. The myth that a sexual assault victim will naturally cry out and alert others to the crime ("hue and cry") harkens back to thirteenth-century notions of feminine behavior. Scientific studies have shown that this "timing myth" is utterly false. To counteract the prejudice created by this "timing myth," courts developed the "fresh complaint" rule, which allows the State to introduce evidence that the victim did indeed make a complaint within a reasonable time after the alleged assault. The fresh complaint rule, however, has fostered a paradox: by adding credence to the testimony of victims who promptly report an assault, it equates promptness with veracity and reinforces the myth that victims who do not make a timely complaint are fabricating their allegations. Detailed testimony concerning the content of a child's fresh complaint should not be permitted because the purpose of the rule is to prove only that the alleged victim complained, not to corroborate the specifics of the victim's allegations. When there is no fresh complaint evidence to counteract the misconception that any child who suffers abuse would complain at an early opportunity, the jury must be informed that it should not allow misperceptions about "right" or "logical" post-assault conduct to infect its assessment of the charges. CSAAS expert testimony should be admissible to assist a jury in evaluating evidence about an alleged victim's post-assault conduct or behaviors when that conduct may be misperceived by jurors as inconsistent with the truthfulness of the claim of assault. (Pp. 15-22)

3. The lack of an immediate complaint does not create, in and of itself, a negative inference concerning the child's credibility. The delay itself should not be regarded as necessarily inconsistent with the veracity of the allegations. That is not to say that evidence of belated disclosure could never be considered as part of the totality of the circumstances in the assessment of the child's credibility. A jury should be permitted to consider all relevant testimony, including the timing of the report of abuse, or silence about it, so long as the jury is instructed that such silence or delay, in and of itself, is not inconsistent with a claim of abuse. That is the proper balance to be struck. (Pp. 22-25)

4. The trial court's jury instructions followed the Model Jury Charge (Criminal), Fresh Complaint: Silence or Failure to Complain (1998) and Model Jury Charge (Criminal), Child Sexual Abuse Accommodation Syndrome (2001). The combination of the two charges clearly had the capacity to confuse the jury about how it was to evaluate Susan's credibility. Just as clearly, defendant's right to have the jury fully evaluate witness credibility was impermissibly limited. For purpose of retrial, if the allegations of child sexual abuse are countered again by proof of delayed disclosure, and there is testimony concerning CSAAS, the trial court should instruct the jury based on Model Jury Charge (Criminal), Child Sexual Abuse Accommodation Syndrome (2001), but should add additional language as set forth in this opinion. The added language would be modified in situations where a defendant presents relevant evidence of a child victim's delay in reporting alleged abuse, but the State does not present evidence of CSAAS. The matter is referred to the Model Jury Charge Committee for their consideration and suggestions for refinement. (Pp. 25-29)

The judgment of the Appellate Division is AFFIRMED and the matter is remanded for a new trial.


The opinion of the court was delivered by: Justice LaVECCHIA

Argued September 23, 2003

In this case, the jury was required to assess the credibility of a young woman who accused her father of having sexually abused her over a period of almost seven years, and of her father, P.H., who denied the abuse ever took place. The young woman's delay in reporting, as well as her motive for the accusation, became issues at trial. The jury found defendant guilty and the appeal has focused on alleged error in the jury instructions in respect of those issues.

The jury heard expert testimony concerning the phenomenon of child sexual abuse accommodation syndrome (CSAAS). The trial court properly instructed the jury that CSAAS evidence may not be used as a diagnostic device for determining that sexual abuse, in fact, occurred. The jury also was told that it could consider the CSAAS evidence in performing its credibility assessment. Specifically, the trial court instructed that CSAAS evidence could be given weight when the jury evaluated any alleged inconsistency between the claim of abuse and the belated disclosure of that abuse. However, the jury also was given, over defendant's objection, the Model Jury Charge (Criminal),

Fresh Complaint: Silence or Failure to Complain (1998). That instruction informed the jury that it could "not consider the child's failure to complain as evidence weighing against the credibility of the child."

The Appellate Division majority concluded that the combination of the two charges was confusing and, more importantly, violated defendant's right to have the jury evaluate fully witness credibility. State v. P.H., 353 N.J. Super. 527, 545-46 (2002). The panel therefore reversed defendant's conviction and ordered a new trial. For the reasons that follow, we agree with that disposition and affirm.


The following summary of the facts adduced at trial highlight the importance that credibility played in this matter. Susan,*fn1 the alleged victim, is the daughter of defendant, P.H.

When her parents separated in 1984, six-year-old Susan resided with her mother and visited defendant on a bi-weekly basis. Visitations lasted approximately seven years until Susan discontinued them following an argument with defendant.

At the time of the trial in 1999, Susan was an adult. She testified that defendant sexually abused her on seven occasions between 1984 and 1990. As she recounted them, most of the incidents shared substantially the same pattern. During certain overnight visitations with her father, defendant would have Susan sleep with him in his bed ...

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