Assuming Facts Not in Evidence: A Response to Russell M. Coombs, Reforming New Jersey Evidence Law on Fresh Complaint of Rape

Abstract

Assuming Facts Not in Evidence argues that a rape complainant’s silence in the aftermath of the crime does not bear on the credibility of her claim. Responding to Russell M. Coombs, Reforming New Jersey Evidence Law on Fresh Complaint of Rape, Colb observes that Coombs offers two arguments for the relevance of an alleged victim’s silence in the wake of the attack: first, silence represents something akin to a prior inconsistent statement which accordingly impeaches the credibility of the rape claim; and second, silence represents conduct at odds with what one would expect from the victim of a violent crime. Though these two arguments rest on factual assumptions with a surface plausibility, Colb observes that the data on the experience of actual rape victims refutes the assumption that victim silence is inconsistent with a claim of rape or with the fact of being raped. On the contrary, Colb notes that rape victims regularly delay speaking of the crime, because they experience shame and (with reason) fear that their claims will not be treated with the same respect as the claims of victims of other sorts of crimes. The extremely low reporting rate for rape, relative to those of other crimes, further evidences this phenomenon. Accordingly, Colb suggests that the “common sense” notion that a real rape victim would promptly tell others about the crime is contrary to the facts. Because silence is a common, normal reaction to rape, the fact of silence does not tend to discredit a later claim of rape. Furthermore, Colb contends that there is a good policy reason for excluding evidence of rape-victim silence. Given the relatively low reporting rate for this crime, the knowledge that her silence will be used to discredit her will likely further deter rape victims from coming forward, an outcome that would only reduce the deterrent effect of the criminal law prohibiting rape. For reasons of relevance and policy, the Article concludes that it is therefore both logical and just to exclude evidence of an alleged rape victim’s silence in the aftermath of the rape.