The “Recent Complaint of Sexual Assault” Hearsay Exception in Virginia
Sex crimes often involve slightly different rules and procedures than other areas in criminal law. Many sexual assaults are not reported immediately, excluding the possibility of physical evidence and enhancing the importance of witness testimony. When cases like this go to court, the Judge must carefully determine which out of court statements are allowed to be repeated and by whom. Hearsay, defined as any “out-of-court statement that is being offered to prove the truth of the matter asserted,” is generally inadmissible as evidence. However, depending on the reason the statement is being offered, hearsay is sometimes allowed. The hearsay rule and its exceptions govern what kinds of out of court statements can be repeated to prove something in court.
There are several enumerated exceptions to the hearsay rule within the Virginia Rules of Evidence.
One of these exceptions is the “recent complaint of sexual assault” exception. In the prosecution of a sexual crime, this exception allows into evidence the fact that the alleged victim made a complaint of the offense soon after it allegedly occurred. This fact is allowed into evidence not as independent evidence of the offense, but simply for the purpose of corroborating the testimony of the accuser. Per the Virginia Rules of Evidence, the following offenses are subject to the recent complaint exception:
- Rape (Virginia Code §18.2-061);
- Crimes against nature (Virginia Code §18.2-361);
- Adultery and fornication by persons forbidden to marry and incest (Virginia Code §18.2-366);
- Taking indecent liberties with children (Virginia Code § 18.2-370); and
- Taking indecent liberties with a child by person in custodial or supervisory relationship (Virginia Code §18.2-370.1).
Example. Suppose John is charged with one of the aforementioned Virginia sex crimes, and that the alleged victim did not make a report to law enforcement for quite some time—say almost three years after the incident allegedly occurred. The accuser did tell one of her friends that she was sexually assaulted, only a few days after the date of the alleged assault. Eventually, she repeated that allegation to her parents, her sister, her aunt, and her pastor. At John’s trial, the Commonwealth’s Attorney cannot put the accuser’s parents, sister, aunt, and pastor on the witness stand to repeat every detail the accuser might have shared with them. The hearsay rule and the recent complaint exception limit the scope of their testimony. Each of these witnesses is permitted to testify only that on a specific date, the accuser made a complaint of a sexual assault to them. The purpose of allowing this kind of testimony into evidence is to corroborate the accuser’s own statement without unfairly bolstering it by allowing multiple witnesses to repeat her story.
Essentially, the person to whom the accuser reported the alleged sex crime may be permitted to testify to the accuser’s out of court statement, but only in a limited way—stating simply that the complaint was made, and when it was made.
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