December 01, 2016

Independent Corroborating Evidence Relating to Criminal Act Required for Certain Sex Offenses against Children

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Commonwealth v. Robert E. White, 2016 WL 6086204 (Mass.).

On an issue of first impression, when a defendant is indicted for certain sex offenses against children more than 27 years after the alleged offense, there must be independent corroborating evidence relating to the specific criminal act.

In 2014, a father was convicted of one count of rape of his child. The indictment for that conviction was returned in 2008 and amended in 2014. The indictment alleged the defendant father raped his daughter in 1979, 1980, and 1981. During those years the family (defendant, his wife, his stepson, and his daughter) lived in three locations. In 1981, the defendant and his wife divorced and he eventually married again and moved to New Hampshire where he remained until 2006.

The daughter reported the abuse to the police in 2008. The daughter and stepson testified in front of a grand jury. The grand jury returned four indictments relating to abuse of the daughter between 1977 and 1981, and eight indictments relating to abuse of the stepson between 1973 and 1985. A pretrial motion was granted in superior court dismissing three of the four indictments involving the daughter because of a time bar. At trial in 2014, a jury returned a guilty verdict on the single indictment for the daughter’s abuse and a not-guilty verdict on the eight indictments for the stepson’s abuse. 

During the 2014 trial, the daughter and stepson testified. Part of the stepson’s testimony was intended to corroborate evidence of the daughter’s abuse. The daughter testified about abuse in 1979, at the first living location and in 1980, at the second living location. The stepson testified about witnessing abuse at the third living location, which the daughter did not testify about. 

On appeal, the defendant raised two issues. The first was that there was insufficient evidence relating to the statute of limitations of the indictment, and the jury was not properly instructed. The second was that the state was required to present independent corroboration of any incident of rape alleged to occur more than 27 years before the indictment was returned. This second issue was one of first impression for the supreme court. 

The statute of limitations issue focused on the tolling of the statute based on the defendant’s residency. In this case, the statute of limitations began at the daughter’s 16th birthday and, based on retroactively changed laws, ended either 15 years after or not at all. If the 15-year statute of limitations expired before the legislature expanded the law, the father’s indictment would be barred. However, this statute of limitations is tolled if the defendant resides outside the state. The question in this case then becomes whether or not the father lived in Massachusetts for 15 years before the legislature expanded the statute of limitations. The court found sufficient evidence supporting the father’s residency in New Hampshire allowing for the longer statute of limitations to take effect and permitting the indictment. However, the court identified an error in jury instructions and the father’s conviction was therefore vacated. 

On the second issue, the court also vacated the conviction. On this issue of first impression, the court held independent evidence that corroborates a victim’s allegation must relate to the specific criminal acts alleged if the indictment was returned more than 27 years after the alleged offense. Massachusetts statute states that any indictment for rape of a child more than 27 years after the offense must be supported by independent evidence corroborating the allegations and cannot be exclusively the opinions of mental health professionals. 

The court interpreted the statutory intent to give child victims time to heal and come forward, while also protecting the principles of a fair trial. By relying nonexclusively on mental health professionals, the court believed the legislature wanted evidence regarding the victim’s credibility and a separate source of proof about the defendant’s guilt. 

The court also held the independent corroborating evidence must relate to the specific criminal act at issue. The court relied on Commonwealth v. Helfant, 298 Mass. 214 (1986), which held that corroborating evidence must relate to the specific criminal act at issue and must consist of “some specific testimonial fact, which, in the context of the case, is probative on an element of the crime.” 

Applying Helfant to this case, the stepson’s testimony about witnessing the defendant’s abuse of his daughter in 1981 was not related to a time the daughter testified about. Therefore, it was not a specific testimonial fact related to particular incident of rape about which the daughter testified. The jury was not instructed about this requirement of proof by the state and returned a general verdict. Because there is no way to tell if the jury’s verdict was based solely on that indictment, the defendant’s conviction was vacated.