Admissibility of Initial Complaint of Sexual Assault or Child Molestation

At common law, the initial complaint by a victim of sexual abuse or child molestation if “prompt” or “fresh” is generally admissible in whole or in part, usually but not always, solely to corroborate the in court testimony of the alleged victim. Such statements have frequently been addressed under the rubric “prompt complaint.”Courts traditionally have employed three different theories to support admission of a prompt complaint. One theory reasons that the complaint should be admissible on the direct examination of the complainant because the jury will infer that the charge of sexual abuse or child molestation is a recent fabrication if there is no testimony of a prompt complaint. A second theory admits the complaint as a prior consistent statement corroborating the prosecuting witness, provided the witness’s testimony has first been impeached in a specified manner. Under both theories the statement of prompt complaint is admitted to prove it was said but not for the truth of the matter asserted. As such the statement of prompt complaint is not hearsay. Under the third theory, courts admit the statement of prompt complaint if it meets the requirements of the hearsay exception for an excited utterance.Each theory is distinct. Consequently, different requirements and limitations apply to the evidence of prompt complaint depending upon the theory supporting admission. Nevertheless, courts sometimes meld the theories together, reaching confusing and occasionally contrary rulings.The Federal Rules of Evidence make no provision for the admission of a statement of prompt complaint of sexual abuse against the victim’s will or child molestation. This omission is not surprising, since crimes of sexual abuse or child molestation are rarely prosecuted in the federal courts. Over 40 states, however, have employed the Federal Rules of Evidence as a model in formulating their own evidence codes. In such states, prosecutors in sexual abuse and child molestation cases have urged admission of statements of prompt complaint under rules of evidence modeled on the Federal Rules.Jurisdictions adopting evidence codes modeled on the Federal Rules of Evidence are able to admit evidence of prompt complaint under all three common law theories. However, an amendment to the Federal Rules of Evidence is needed to address those problems which surfaced over time at common law and continue under the Federal Rules of Evidence and state evidence codes modeled thereon with respect to statements of prompt complaint of sexual abuse or child molestation. Such a proposed amendment would add subsection (D) to Rule 801(d)(1), which would then read as follows: Rule 801(d)(1): Statements that are not hearsay: A declarant-witness’s prior statement: (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (D) is one of initial complaint consistent with the testimony of the alleged victim declarant describing an offense of sexual assault as set forth in Rule 413(d) or an offense of child molestation as set forth in Rule 414(d).