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Massachusetts Appeals Court Reverses Child Rape Convictions Following Improper Expert Testimony

The Massachusetts Appeals Court today reversed a defendant’s child rape convictions because a therapist improperly vouched for the alleged victim’s credibility.  The name of the case is Commonwealth v. Lopez

The 55-year-old defendant and the 12-year-old victim were next door neighbors.  The defendant lived with his girlfriend and her three children.  One night, the alleged victim went to the defendant’s house to babysit for his girlfriend’s children.  According to the alleged victim, the defendant summonsed her to a bedroom where he pushed her onto a bed and took off her pants and underwear.  The alleged victim accused the defendant of raping her twice, first by inserting his penis into her vagina and then by inserting his finger into her vagina.  After the alleged crimes were committed, the defendant and the alleged victim went downstairs and watched television together.  A superior court jury convicted the defendant of several sex offenses, including aggravated child rape.

The issue on appeal was the propriety of testimony that was offered by the alleged victim’s therapist.  The alleged victim had a very troubling childhood.  She had been diagnosed with mild mental retardation and had bipolar disorder.  When she was seven or nine years old, she had been raped by an older male cousin, which had understandably traumatized her in a significant way.  The alleged victim experienced upsetting flashbacks related to her cousin in which it felt like she was being touched and hurt again.  She began to see therapists to address the lingering emotional problems associated with the rape by her cousin.  At trial, one of the alleged victim’s therapists was permitted to testify for the Commonwealth.  Over the defendant’s objection, the therapist testified the alleged victim had problems processing information.  The therapist further testified that the alleged victim had been unable to engage in imaginative play, and could not play a game in which she was asked to pretend she was a princess.  The prosecutor used the therapist’s testimony to argue in her closing argument that the alleged victim did not have the capability to make up a story about being raped.  After all, continued the prosecutor, if the alleged victim lacked the ability to pretend she was a princess, then certainly she was not intelligent or sophisticated enough to create a story about being raped.

The Appeals Court ruled the therapist’s testimony about the alleged victim’s inability to engage in imaginative play was irrelevant and should not have been admitted.  And, when the trial judge allowed the therapist to offer such testimony, it had the effect of permitting one witness (the therapist) to offer an opinion about the credibility of another witness (the alleged victim) which is absolutely impermissible.  The Court said a reasonable juror could think the therapist was vouching for the alleged victim’s story.  The Court also concluded the error was prejudicial and the defendant is therefore entitled to a new trial.  The alleged victim was the only percipient witness and there was no corroborating physical evidence.

Accordingly, the defendant’s convictions were vacated and the case will now return to Middlesex Superior Court where the Commonwealth will need to decide whether to retry the defendant.

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