The Paradox of the Fresh Complaint Rule
37 Pages Posted: 27 Jul 2006
The Paradox of the Fresh Complaint Rule closely examines a rule of evidence known as the fresh complaint or prompt complaint rule. The rule is controversial because it is applicable only in sexual assault trials and therefore singles out sexual assault victims for special treatment. Reminiscent of the equal treatment/special treatment dilemma, scholars have disagreed over whether this unique evidentiary rule for sexual assault victims should continue to exist.
There is little disagreement that the rule can help individual rape complainants. By permitting admission of out-of-court statements made by a sexual assault complainant alleging that a rape occurred, the rule helps sexual assault complainants recover from the often unfair credibility damage they suffer because of widely embraced stereotypes about how sexual assault victims ýshouldý behave. There is no question that evidence of a prompt complaint of rape helps to boost the often unfairly maligned credibility of sexual assault complainants. However, in the rule's effectiveness lies the paradox. Because it boosts the credibility of complainants by showing that they did in fact complain, the rule has the unfortunate effect of perpetuating the very stereotype that it exists to disprove.
In this way, the fresh complaint rule is a paradigmatic example of the feminist ýdouble bind.ý Mindful of the practical advantages of the rule for individual sexual assault complainants, this paper suggests a way out of the double bind by keeping the rule, but modifying both the rule and its rationale to alleviate its role in perpetuating stereotypes about sexual assault complainants. The paper acknowledges that at some point, the fresh complaint rule should be phased out of the rules of evidence, but warns against the harms of doing so prematurely. The compromise suggested in the paper, which was cited favorably by courts of last resort in Massachusetts and New Jersey, maintains the practical advantages of admitting the evidence yet alleviates some of the more troublesome theoretical problems.
Keywords: rape, feminist legal theory, sexual assault, evidence, equal treatment, special treatment, fresh complaint, prompt complaint, complaint of rape, criminal law
JEL Classification: K10
Suggested Citation: Suggested Citation