Fitzgerald v. United States

NEWMAN, Chief Judge,

with whom KELLY and FERREN, Associate Judges, join, dissenting:

Since this court decided Arnold v. United States, D.C.App., 358 A.2d 335 (1976) (en banc), it has had several opportunities to consider the applicability of the corroboration requirement to child complainants in *1306 sex offense cases. 1 The fact that this court is again faced with this issue illustrates the need for clarity in this area of the law. In Arnold, supra, we abolished the corroboration requirement in cases involving mature females. Because the reasons for abrogating the corroboration requirement for mature female victims apply equally to child victims, the requirement should be completely eliminated. I cannot participate in this court’s perpetuation of this antiquated, discriminatory rule, and thus dissent.

II

In our criminal justice system, a defendant is held to be innocent unless and until he is proven guilty beyond a reasonable doubt. In cases in which a jury is the factfinder, the jury must be instructed to acquit the defendant of any part of the offense to which there is a reasonable doubt and convict him of any part to which there is no reasonable doubt. 1 C. Torcía, Wharton’s Criminal Evidence, § 7 (13th ed. 1972). The jury must make this critical determination based on the admitted evidence and inferences drawn therefrom. Id. When this evidence is in the form of oral testimony, it is the jury’s task to weigh the credibility of the witnesses. Shelton v. United States, 83 U.S.App.D.C. 257, 259 , 169 F.2d 665, 667 , cert. denied, 335 U.S. 860 , 69 S.Ct. 24 , 93 L.Ed. 387 (1948); Morgan v. District of Columbia, D.C.Mun.App., 104 A.2d 604 (1954) (per curiam). The jury must view the demeanor of the witness and decide whether or not to believe his testimony based upon such factors as whether his character has been impugned or whether he exhibits some bias, motive, or prejudice. 1 C. Torcia, supra, § 7.

In most cases, it is possible to convict a defendant of a crime based upon the uncorroborated testimony of only one witness as long as that witness’ credibility has not been impeached. There are some exceptions to this general rule. The testimony of at least two witnesses is required for a conviction of treason 2 or perjury. 3 In the District of Columbia, there is a third exception for sex offense cases. 4 Unless the victim of a sex offense is a mature female, there can be no conviction without corroboration of the complainant’s testimony. 5

*1307 Why should corroboration ever be required in sex offense eases? The requirement certainly did not exist in the common law, 6 nor is there any reason for its current perpetuation. Several justifications for the requirement have been posited. One such justification is the frequency of false charges of sex offenses, particularly rape. Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L.J. 1365 , 1373 (1972). It is the jury’s function, however, to determine if the complaining witness’ testimony is credible. The decision to take this determination out of the hands of the jury is based upon a number of ideas about women, including the idea that they may bring false charges for revenge, notoriety, blackmail, or out of pure hatred. Id. (citations omitted). See also Coltrane v. United States, 135 U.S.App.D.C. 295 , 298-99, 418 F.2d 1131, 1134-35 (1969). Statistics show, however, that rape is one of the most under-reported crimes. Federal Bureau of Investigation, Uniform Crime Reports 1970, at 14 (1971). The humiliation, publicity, and strain of a rape trial serve to discourage victims from prosecuting or even reporting the crime.

A second justification for the corroboration requirement is that the jury will be unfairly prejudiced against the defendant because of the emotion raised by a charge of rape. The current system, however, provides ample protection for defendants by allowing defense attorneys to challenge overly emotional jurors during voir dire. Furthermore, evidence shows that juries are quite suspicious of rape charges and rarely return convictions in the absence of aggravating circumstances, such as extrinsic violence. Note, supra note 4, at 1380.

Considering this relative rarity of rape convictions, a third justification — difficulty in defending against an accusation of rape 7 —also loses much of its force. None of the aforementioned justifications is strong enough to warrant a prior determination that all defendants in sex offense cases will be acquitted if the victim’s testimony is not corroborated.

Ill

This court recognized the unfairness of the corroboration requirement when it partially eliminated it in Arnold v. United States, supra. There, the court held that “no instruction directed specifically to the credibility of any mature female victim of rape or its lesser included offenses and the necessity for corroboration of her testimony shall be required or given in the trial of any such case in the District of Columbia court system.” Id. at 344. In so holding, the *1308 court rejected the notion that the victim of tape and other sex offenses is so “presumptively lacking in credence that corroboration of her testimony is required to withstand a motion for a judgment of acquittal.” Id. The court also stated that the corroboration requirement serves no legitimate purpose because there are adequate constitutional protections available to every defendant in a sex case. Id. at 343.

In light of the court’s stated reasons for abolishing the requirement in cases involving mature female victims, it is difficult to understand why the requirement was maintained in cases in which the victim is a child. The majority’s justification for distinguishing between “mature” females and other complainants lies in its apparent belief that there is a greater danger of false accusations in sex offense cases involving child victims. 8 Current psychiatric opinion, however, indicates that this belief is unwarranted. According to Dr. Alvin Rosenfeld, Director of Training and Child Psychiatry at the Stanford University School of Medicine, “if a person who is free from major psychiatric illness gives a clear report of molestation which occurred after the age of about nine, it will usually be accurate.” Rosenfeld, Fantasy and Reality in Patients’ Reports of Incest, 40 J. Clinical Psych. 159, 161 (1979). Another authority in the field, Dr. Joseph Peters, has concluded that “psychiatrists and others have too often discounted reports of sexual attacks upon children and ascribed the incident to fantasy.” See Peters, Children Who Are Victims of Sexual Assault and the Psychology of Offenders, 30 Am. J. Psychotherapy 398 (1976). Child sexual abuse has been described as “one of the most under-reported crimes in our society” and studies have shown that “some form of childhood sexual abuse may be experienced by as much as one-third of the population.” MacFarlane, Sexual Abuse of Children, in The Victimization of Women 85-86 (1978) (citations omitted).

Authorities in this jurisdiction have also recognized the prevalence of child sexual abuse and the problems attributed to the corroboration requirement. Representatives of the Child Sexual Abuse Victim Assistance Project at the Children’s Hospital National Medical Center have made the following observations:

In our experience, virtually all of the cases investigated by the Sex Offense Branch of the Metropolitan Police Department that are not prosecuted are rejected by screening prosecutors because corroboration is lacking. Children are not usually forcibly raped by a stranger; instead, they are cajoled, bribed or threatened by someone they know. We have found this in 80% of our cases. As a result there may be no medical evidence at all. Children are sexually victimized in situations where there are no eyewitnesses. Many children do not immediately exhibit visible symptoms of emotional distress; instead their behavior may change in subtle, misunderstood ways. As a result, the District of Columbia Court of Appeals has perpetuated an invidiously discriminatory rule of law that is based upon fallacious and outdated assumptions of child development and behavior, the nature of sexual victimization, and medicine, the result of which allows those who sexually abuse children to go unpunished. The corroboration rule is a rule whose time should have passed. [Public Hearing No. 4 on Bill No. 3-226, “District of Columbia Basic Criminal Code Act of 1979,” February 21, 1980 (unpublished testimony, p. 4).]

It is quite ironic that this archaic obstacle to prosecution has been maintained in cases involving children — the victims most in need of protection. While the Arnold court did much to alleviate discrimination against women in this area of the law, the maintenance of the corroboration requirement in its present form only serves to perpetuate *1309 discrimination against children of both sexes as well as adult male victims. 9

I do not contend that all child victims of sexual offenses are credible witnesses. Yet neither are all adult witnesses credible. The point is that there can be no predetermination of the credibility of any class of witnesses. This determination is to be made at trial by the jury. Therefore, there should not be a presumption that a child lacks credence merely by virtue of age. Although the jury instruction on children’s testimony states that “children are likely to be more suggestible than adults,” it also states that “a child is not disqualified as a witness merely by reason of his youth.” The instruction further states:

As in the case of all other witnesses, you are the sole judges of the credibility of the child who has testified in this case. In weighing his testimony you may consider not only his age, but his demeanor on the stand; his manner of testifying; his capacity to observe facts; his capacity to recollect them; his ability to understand the questions put to him and to answer those questions intelligently; whether he impresses you as having an accurate memory and recollection; whether he impresses you as a truth-telling individual; and any other facts and circumstances bearing on his credibility. You should give his testimony such weight as in your judgment it is fairly entitled to receive. [Criminal Jury Instructions for the District of Columbia, No. 2.21 (3d ed. 1978).]

The fact that this cautionary instruction may be given assures the defendant of additional protection in cases involving child victims, even in the absence of the corroboration requirement.

IY

The defendant accused of a sex offense deserves no more protection than one accused of murder, kidnapping, or any other heinous crime. As the law currently stands, however, defendants in sex offense cases do receive special protective treatment. For example, if a minor is kidnapped and robbed at gunpoint, the perpetrator may be convicted on the uncorroborated testimony of the minor victim. However, if that same child is kidnapped, robbed at gunpoint, and then raped, the defendant may not be convicted of the rape in the absence of corroboration. I see no justification for this irrationality in the law.

Assuming, arguendo, that the sex offense defendant does deserve additional protection, the corroboration requirement is neither the only nor a just means of providing such protection. Rather than maintaining corroboration as a strict prerequisite to conviction, it could be one of a number of factors to be considered by the jury during its deliberations. Juries in all sex offense cases could, at the option of the trial judge, be given a special instruction enumerating these factors, in addition to the ordinary final instructions appropriate in the particular case. The following is an example of such an instruction:

The nature of the crime of (crime charged) is such that the substantive evidence presented often consists of the conflicting testimonies of the defendant and the complainant. Because of this fact, you must examine the evidence presented with care and caution.

In addition to proving the credibility of the witnesses, you should consider a number of relevant factors in reaching your decision. These factors may include:

(1) Whether there was any delay by the complainant in reporting the incident

(2) Whether the complainant had a motive to falsify charges

(3) Inconsistent or improbable testimony by the witnesses

*1310 (4) Evidence of facts and/or inconsistencies which support the complainant’s testimony.

You should not consider any one of these factors as decisive, but rather your decision should be based on the evidence presented. These factors, considered as a whole, should assist you in weighing the evidence before you.

The above instruction provides ample protection for the defendant, yet does not preclude prosecution based on the testimony of a single credible witness. This solution is much more equitable than the one-sided result often produced by the strict corroboration requirement.

V

Besides the unfairness of the requirement and the existence of a more equitable alternative, the corroboration requirement is also problematic in that it creates an anomaly in the law. There are currently two different standards for sex offense convictions in the District of Columbia, depending upon whether the offender is charged in Superior Court or District (federal) Court. In United States v. Sheppard, 186 U.S.App.D.C. 283 , 569 F.2d 114 (1977), the United States Court of Appeals for the District of Columbia Circuit eliminated the corroboration requirement in all sex offense cases, regardless of the victim’s age. In so doing, that court recognized that “the mere existence of the rule may encourage victims never to report, and prosecutors never to bring charges for, rapes in which independent corroboration is absent or marginal.” Id. at 287 , 569 F.2d at 118 . The court further recognized that there are ample safeguards for the protection of defendants in sex offense cases:

Where the motivation of the complainant in bringing the charge is an issue, ... the defense attorney is free to emphasize to the jury the dangers of falsification, and the judge should instruct the jury as to those dangers and the difficulty of establishing consent. Finally, protection against unjust convictions on a case-by-case basis is afforded by the general rule that judgments of acquittal or reversals of convictions must be granted where substantial evidence does not exist to support a guilty verdict, whether or not independent corroboration is technically present. [Id. 287-88, 569 F.2d at 118-19 .]

As the law now stands in the District of Columbia, a minor victim of a sex offense may or may not have to produce corroboration, dependent upon whether the United States Attorney chooses to charge the defendant with a local or a federal crime. There is simply no justification for this difference in law within this jurisdiction.

The corroboration requirement was judicially created 10 and it is highly appropriate that it be judicially abolished. If this court can recognize the unfairness of the rule as it operates against mature females, it cannot justify maintaining the rule in cases involving children. It is long past the time that this court should follow the example of most of the jurisdictions in this country 11 and totally eliminate the last vestiges of this outdated, discriminatory rule. I am unable to join in its refusal to do so. I dissent.

. See In re L. A. G., D.C.App., 407 A.2d 688 (1979); Davis v. United States, D.C.App., 396 A.2d 979 (1979); In re J. W. Y., D.C.App., 363 A.2d 674, 677 (1976).

. U.S.Const. art. Ill, § 3. See also Kawakita v. United States, 343 U.S. 717, 736 , 72 S.Ct. 950, 962 , 96 L.Ed. 1249 (1952).

. Weiler v. United States, 323 U.S. 606, 608-10 , 65 S.Ct. 548, 549-50 , 89 L.Ed. 495 (1945).

. As of 1972, seven jurisdictions had a corroboration requirement and eight required either limited corroboration or corroboration only in certain factual circumstances. Thirty-five had no such requirement. See Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L.J. 1365 , 1367-68 (1972). Five of the jurisdictions that required some form of corroboration have since eliminated the requirement. See Ga.Code Ann. § 26-2001 (1980 Supp.) (Acts 1978, p. 3, deleted corroboration requirement); Iowa Code Ann. § 709.6 (West 1978); Minn.Stat. § 609.347, subd. 1 (1981 Supp.); N.M.Stat.Ann. § 30-9-15 (1978); V.I. Code Ann. (1980 Supp.) (tit. 14, § 1706 repealed Aug. 4, 1978, No. 4172, Sess.L.1978, p. 168). Two states, Idaho and Nebraska, still require corroboration in ail sexual assault cases. See Idaho Code § 18-6101 (1979); State v. Aby, 205 Neb. 267 , 287 N.W.2d 68 (1980). Seven jurisdictions (including the District of Columbia) require corroboration only in certain limited factual circumstances. See Territory v. Hays, 43 Haw. 58, 62 (1958); Miss. Code Ann. § 97-3-69 (1972); State v. Lee, 404 S.W.2d 740, 747 (Mo. 1966); N.Y.Penal Law § 130.16 (McKinney 1975), People v. Fuller, 50 N.Y.2d 628 , 431 N.Y.S.2d 357 , 409 N.E.2d 834 (1980); Tenn.Code Ann. §§ 39-3701, 39-3710 (1980); Villareal v. State, 511 S.W.2d 500, 501-02 (Tex.Cr.App.1974).

. The “Redbook” instruction on corroboration reads as follows:

The law does not permit a conviction of (crime charged) on the basis of the testimony of the complaining witness standing alone. Corroboration of [his] [her] testimony is required in two respects: first, to prove that the offense on trial was committed; and second, to prove that the defendant committed it.

The requirement of corroboration means that there must be evidence, independent of *1307 the testimony of the complaining witness, of facts and circumstances which tend to support the complainant’s testimony. It is not necessary that corroboration be furnished by eye witnesses. Corroboration can be direct evidence or circumstantial evidence, or both.

With respect to corroboration that the offense was committed, it is not necessary that each and every element of the offense be corroborated or that corroboration be provided by a certain type of evidence. However, there must be sufficient corroborative evidence when considered with the complainant’s testimony to permit you to find beyond a reasonable doubt that the complaining witness’s testimony regarding the commission of the offense is not a fabrication.

If you should find that the complaining witness’s testimony about the occurrence of the crime is sufficiently corroborated, you should then consider the matter of identification. The corroboration of the complainant’s identification of the defendant may be provided by independent evidence of facts and circumstances which tend to support [his] [her] testimony that the defendant committed the offense. However, if you should find that the complainant made a convincing identification of the defendant based upon an opportunity which minimized the danger of mistake or falsification, then there is no need for further corroboration of [his] [her] identification of the defendant.

If you do not find that the complaining witness’s testimony was sufficiently corroborated as defined above, then you must find the defendant not guilty. [Criminal Jury Instructions for the District of Columbia, No. 4.78 (3d ed. 1978).]

. 7 Wigmore, Evidence, § 2061, at 342 (Chadbourn rev. ed. 1978).

. See Note, supra note 4, at 1382-84.

. The majority cites Guttmacher and Weihofen, Psychiatry and the Law 374 (1952), in support of this contention.

. If an adult male is compelled to commit sodomy at gunpoint, the defendant could be convicted of assault with a deadly weapon without corroboration. The act of sodomy, however, would require corroboration. There is no justification for this anomaly.

. See Arnold v. United States, supra at 343.

. See note 4, infra.