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Massachusetts Appeals Court Rules “First Complaint” Testimony Properly Admitted in Juvenile Rape Case

The Massachusetts Appeals Court ruled today that a juvenile court judge properly admitted “first-complaint” testimony against a teenager who was convicted of raping his young cousin.  The name of the case is Commonwealth v. Alce.

The defendant’s family and the victim’s family would socialize at each other’s homes regularly.  The defendant started sexually assaulting the victim when she was five years old and continued for several years.  The assaults started with the defendant touching the victim’s private parts with his fingers and escalated to the defendant orally raping the victim and finally inserting his penis into her vagina when she was eight years old (and the defendant was 15).  The year after the rape, the victim told a different cousin (who was 12 years old) as well as an 18-year-old relative who immediately reported the information to the victim’s mother.  The victim’s mother asked her what happened and the victim confirmed she had been raped.

At the defendant’s trial, the prosecutor filed a motion to allow the victim’s mother to testify as the first complaint witness.  Massachusetts has a rule in sexual assault cases that allows the first person who learns about the sexual assault from the victim to testify at trial about the victim’s allegations.  The Supreme Judicial Court has concluded this rule helps to “cure” stereotyping in cases involving sexual assault by acknowledging that victims often fail to report a sexual assault promptly for reasons that do not involve the validity of the claim of assault.  The rule ordinarily allows the first person who hears the victim’s story to testify.  However, if that person is unavailable, the Commonwealth may file a motion to substitute another person as the first complaint witness.  In this case, the trial judge allowed the Commonwealth’s motion to permit the victim’s mother (and not the 12-year-old cousin) to testify as the first complaint witness.  The defendant was convicted of aggravated rape of a child.  He appealed, arguing it had been improper for the victim’s mother to be designated the first complaint witness.  The Appeals Court affirmed.

The true first complaint witness was the 12-year-old cousin.  However he lived at an unknown address in Florida.  The police had his telephone number and an officer had previously spoken to the cousin on the phone.  However, prior to the trial, the cops were unsuccessful in connecting with the cousin on the phone (voicemail messages were not returned).  Further, the victim’s family did not know the cousin’s address and the prosecutor suggested to the trial judge that the families might be estranged.  The trial judge ruled the Commonwealth had made reasonable efforts to locate the cousin and secure his attendance at the trial, but he was legally unavailable to testify.  Therefore, it was proper to allow the victim’s mother to testify as the substitute first complaint witness.  The Appeals Court agreed with the trial court that the defendant was unavailable and held that the mother, as the next person who learned about the victim’s allegations, was an appropriate first complaint witness.  Accordingly, the defendant’s conviction was affirmed.

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