Com. v. Rather, 92-P-1066
| Citation | 37 Mass.App.Ct. 140,638 N.E.2d 915 |
| Decision Date | 26 September 1994 |
| Docket Number | No. 92-P-1066,92-P-1066 |
| Parties | COMMONWEALTH v. Harrison RATHER. |
| Court | Appeals Court of Massachusetts |
Eric Brandt, Committee for Public Counsel Services, Boston, for defendant.
John E. Bradley, Asst. Dist. Atty., for Commonwealth.
Before SMITH, KAPLAN and IRELAND, JJ.
The defendant was charged in six indictments with the following offenses: three acts of forcible rape of a child, two acts of assault and battery, and one act of assault and battery by means of a dangerous weapon. He was convicted by a jury of all the charges. 1 On appeal, the defendant claims that the judge committed reversible error by allowing in evidence expert testimony concerning the patterns of disclosure by children who are victims of child sexual abuse.
Three young sons of the defendant were the victims named in the three indictments that charged him with forcible rape. The offenses were alleged to have occurred sometime during the period between April 1 and September 19, 1987. At the time of the offenses alleged in the indictments, the oldest victim was nine years old (thirteen at the time of trial), the next oldest was six and seven years of age (ten at the time of trial), and the youngest was four (eight at the time of trial).
We summarize the evidence before the jury. Each of the victims testified, in some form, that the defendant repeatedly had anal intercourse with him during the period. Each also claimed to have seen the defendant do the same to one or both of the others. The oldest son, whom we will call Andrew, not only testified as to sexual abuse but also stated that the defendant physically abused him, including burning his arm with a lighted cigarette. Further, Andrew testified that the defendant was "drunk" a lot and invariably was drinking when he abused Andrew and his brothers. In addition, the defendant showed pornographic movies to the victims.
The next oldest son, whom we call Ben, also testified to physical and sexual abuse. He testified also to the defendant's drinking of alcohol and forcing Ben and his brothers to watch pornographic movies. The youngest son also testified to physical and sexual abuse.
The victims were subject to a vigorous cross-examination in regard to the fact that they did not disclose, at the time it was happening, the sexual and physical abuse they were suffering at the hands of the defendant. They gave as their reason that the defendant threatened to kill them if they told anyone about the abuse. They were aware that the defendant kept several guns in the apartment where they lived.
Other Commonwealth witnesses included a social worker who had known the defendant for about twenty-five years. She testified that in September, 1987, the victims came to live with her. Although initially at her home on a temporary basis, they remained living with her up to and including the time of the trial. With respect to the victims' complaints, the witness testified that within a few weeks of their arrival, Andrew told her that the defendant had put his penis in his "bum" and, later in 1987, the youngest victim told her the same thing. Ben, however, made no such complaint at that time or in 1988. The witness testified that she noticed burn marks on Andrew's arms.
A person who had known the defendant for eight or nine years testified that he had seen the defendant slap Andrew "pretty hard" in the face. He also stated that he was present when the defendant showed a pornographic movie to the victims. The witness also testified that the defendant would often sleep with the victims. Another witness, who lived with the defendant from April or May to September, 1987, testified that she saw the defendant physically abuse Andrew and Ben. She also stated that she once saw the defendant having anal intercourse with Andrew. Further, she testified that the defendant once made reference to his sons as his "harem."
The issue raised on appeal arose in the following manner. On the second day of the trial the prosecutor informed the judge that she had learned that defense counsel intended to call as witnesses two therapists who had evaluated the victims for sexual abuse in 1988 and to whom the victims had denied any such abuse. The prosecutor stated that if defense counsel did call the therapists, she wished to cross-examine them as experts on "patterns of disclosure" by child victims of sexual abuse. The prosecutor claimed that such testimony was admissible and cited Commonwealth v. Dockham, 405 Mass. 618, 629, 542 N.E.2d 591 (1989), in support of her argument. Defense counsel disagreed and claimed that the Dockham decision had been overruled sub silentio in Commonwealth v. Montanino, 409 Mass. 500, 504, 567 N.E.2d 1212 (1991). After listening to counsel the judge postponed his decision until the therapists testified.
After the Commonwealth rested its case, the defendant called one of the therapists as his first witness. She testified on direct examination that she was employed by a private mental health clinic. In July, 1988, she saw the oldest child on two occasions for the purpose of evaluating whether he had been sexually abused. He told her that the defendant had touched him on his "bum" with his finger and also touched him on his genitals. He denied, however, that the defendant had penetrated his anus with his penis. The victim did not tell the witness that he had been burned. The witness also testified that she interviewed Ben, the next oldest victim, who told her that he had never been sexually abused by the defendant.
Before cross-examination of the witness commenced, the judge held a hearing on the prosecutor's motion to have the therapist qualified as an expert and to cross-examine her on "patterns of disclosures" by child victims of sexual abuse. The judge qualified the witness as an expert. 2 The prosecutor then outlined the series of questions she planned to ask the witness. The judge ruled that he would permit the proposed testimony, citing Commonwealth v. Dockham, supra. He added, however, that he would not allow any questions to "become specific as to the[se] child[ren]."
Following the judge's ruling, the prosecutor proceeded to question the therapist. Her first questions concerned the witness's examination of Ben. The witness testified that Ben was "uncomfortable" when the witness asked him about "touches." After a few other questions about her examination of Ben, the prosecutor then elicited the challenged testimony from the witness, over the defendant's objections. The pertinent portion of the testimony is as follows:
. . . . .
The prosecutor then repeated the question as follows:
"Q. Ms. Tempesta, I would like you for the following three questions to make an assumption. Assume that you have a child under the age of ten who has been sexually abused, physically abused, and threatened with severe bodily harm if the child discloses that abuse. My first question is, do you have an opinion to a reasonable degree of psychological certainty as to whether it is uncommon for such a child to fail to disclose that abuse for a substantial period of time?
. . . . .
"A. I think a child who has been sexually abused and who has been threatened with bodily harm would have a very difficult time disclosing the abuse at all. And quite often children who have experienced that type of abuse and those types of threats very often do not disclose. When they do disclose they normally disclose in stages.
. . . . .
"Q. And that would lead me then to my second question, which is, do you have an opinion to a reasonable degree of psychological certainty as to whether such a child might disclose gradually over a long period of time?
. . . . .
"A. I think a child would gradually disclose over a long period of time. Based on what the response is of their disclosure, they may give one piece of information and wait to see how it is dealt with, see what the results are, and then give a little more and wait and see if they are going to be harmed in any way and so forth.
. . . . .
"Q. My third question is this. Do you have an opinion to a reasonable degree of psychological certainty as to whether such a child might actually deny being abused at all, especially if the child is asked that question by a person the child does not know well?
. . . . .
After the witness testified, defense counsel asked the judge if his ruling would be the same with respect to the second therapist that defense counsel planned to call as a witness. The judge stated that he would allow the prosecutor to ask the second therapist the same type of questions she had asked the first therapist. Defense counsel never called the second therapist as a witness. 3
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