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Justices rule on delay in reporting abuse
Jurors no longer to be instructed not to draw negative inferences from accuser's
silence
By Kathy Barrett
Carter, Star-Ledger Staff,Friday, February 06, 2004
Jurors in a child sex abuse trial should be allowed to consider whether a child's delay in reporting alleged abuse makes the accusation less believable, the state Supreme Court ruled yesterday.
With the 6-0 decision, the justices invalidated the long-standing practice of instructing jurors not to draw negative inferences from an accuser's silence following an alleged sexual assault.
The court acknowledged it walked a fine line in reaching its conclusion.
Striking the right balance between a defendant's right to confront accusers and society's interest in justice "is a sensitive task in the context of a child sexual abuse trial. That balancing must take into account the need for a fair trial of the accused," Justice Jaynee LaVecchia wrote.
The opinion comes in the case of Peter Hong, 52, of Parsippany, who in 1999 was sentenced to 20 years in prison after being convicted of sexually assaulting a female relative from 1984 to 1990, when she was between the ages of 6 and 12.
Five years later, when she was being treated for an eating disorder, she revealed the abuse to a counselor.
In October 2002, the Appellate Division of Superior Court tossed out Hong's conviction, saying his rights were violated by the trial judge's instructions to the jury. Superior Court Judge Theodore Bozonelis directed the jurors not to take into account that the relative waited five years after the last contact with Hong to tell.
Yesterday, the state's top court agreed, remanding the case back to Morris County for a new trial.
Alan L. Zegas, the Chatham defense lawyer who represented Hong, said legitimate concern over child sex abuse has led courts to develop rules of evidence that undermine the rights of the accused to present a full defense.
Yesterday's decision gives some of those rights back to the accused, Zegas said, but he noted there are people behind bars today convicted under the old standards.
Others found yesterday's decision troubling.
Elizabeth Volz, president of the New Jersey chapter of the National Organization for Women, said, "We're concerned ... because it frequently takes a great deal of time to process what happened and to feel safe to report what has happened, especially for a child."
She said delay may actually mean the accusation is more reliable because it is "a sign the situation is well thought out and ought to be taken more seriously."
In the Hong case, LaVecchia noted that in the course of investigations into problems in the defendant's family, the girl was questioned numerous times by police, child protective services workers, school nurses, counselors and medical therapists. Yet she did not complain that Hong had sexually abused her.
At the same time, the justices said juries should be given information to help dispel "the myth that victims who do not make a timely complaint are fabricating their allegations."
Citing research, the court said, "sexually abused children often do not report the abuse out of fear of being blamed for the incident or fear that no one will be able to protect them from retaliation by the abuser."
"We are very sorry the Supreme Court decided to go along with the majority opinion in the Appellate Division," said Catherine Foddai, the special deputy attorney general who handled the case for the state. "All the studies have shown the reason victims don't immediately come forward have nothing to do with credibility. It is the way society views sexual crimes. It is especially difficult for a child."
Kathy Barrett Carter covers the judiciary. She can be reached at kcarter@starledger.com or (609) 989-0054. |
