State v. Martinez

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE NOVEMBER 19, 2020
SUPREME COURT, STATE OF WASHINGTON
NOVEMBER 19, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, )
)
Respondent, ) No. 97496-9
)
v. )
)
SIMON ORTIZ MARTINEZ, )
)
Petitioner. ) Filed: November 19, 2020
_______________________________)
GONZÁLEZ, J.— Under our constitutions, the State bears the burden of
proving the criminal charges it brings with reliable evidence. See WASH. CONST.
art. I, §§ 9, 22; U.S. CONST. amend. VI. The person charged with a crime has the
right to challenge and test the State’s evidence. WASH. CONST. art. I, § 22; U.S.
CONST. amend. VI. Most evidence is presented through live testimony of
witnesses sworn to tell the truth. As a general rule, witnesses may testify only
about their own observations, not about what other people told them. This general
rule is subject to a long-standing exception for “the fact of the complaint.” Under
this current iteration of the fact of the complaint exception, the State may offer
evidence that a victim of sexual violence told someone about it. In this case, four
witnesses were allowed to testify that the victim told each of them she had been
State v. Martinez, No. 97496-9
raped. The defendant argues this was error under our hearsay rules and asks this
court to abandon the fact of the complaint doctrine. Declining to do so, we affirm.
FACTS
Simon Ortiz Martinez 1 sexually abused his daughter, Y.M., for nearly a
decade. 1 Verbatim Report of Proceedings (VRP) (Oct. 24, 2017) at 34. Y.M.
testified that the abuse began when she was five years old. Id. Martinez stopped
Y.M. from playing Barbies with her brothers and told her to go to his room where
he molested her. 3 VRP (Oct. 31, 2017) at 535, 538-40. The molestation
continued regularly for several years. 1 VRP (Oct. 24, 2017) at 34; 3 VRP (Oct.
31, 2017) at 545, 574, 598-99.
When Y.M. was nine years old, she was alone in the house with Martinez.
Her youngest brother had been hospitalized, and their mother stayed at the hospital
with him. 3 VRP (Oct. 31, 2017) at 548. Martinez raped Y.M. that night. Id. at
555-58. Three months later, Martinez raped her again. Id. at 560. Martinez
continued to rape and sexually abuse Y.M. regularly until she moved out of the
family home in 2014, when she was about 14. 1 VRP (Oct. 24, 2017) at 34, 36,
66-67; 3 VRP (Oct. 31, 2017) at 545, 574, 598-99. Around that time, she told
several people about the sexual abuse. 4 VRP (Oct. 31, 2017) at 615, 617. A few
1
The briefs and trial record use several variations of the petitioner’s name. We use the name his
own counsel uses.
2
State v. Martinez, No. 97496-9
months later, Y.M. reported it to authorities. 3 VRP (Oct. 30, 2017) at 488-89,
495; 4 VRP (Oct. 31, 2017) at 624-26.
The State charged Martinez with one count of first degree rape of a child,
which required it to prove Martinez raped Y.M. when she was no more than 12
years old. 1 VRP (May 8, 2017) at 2; RCW 9A.44.073. The State limited the
charging period to three years: July 2009 to July 2012. Clerk’s Papers (CP) at 1.
Even though there was considerable evidence that the abuse continued until Y.M.
was 14 years old, the State elected not to add a charge of second degree rape.
During trial, over Martinez’s objection, Y.M.’s two friends, her mother, and a
friend’s mother were all permitted to testify that in 2014, Y.M. told them she had
been sexually abused. 3 VRP (Oct. 30, 2017) at 435-36, 455; 3 VRP (Oct. 31,
2017) at 507-08. This was long after the charging period but still
contemporaneous with the ongoing abuse. 1 VRP (Oct. 24, 2017) at 17-18; 2 VRP
(Oct. 26, 2017) at 340-44.
Martinez moved to exclude Y.M.’s complaints to these witnesses as
untimely since they happened so long after the charging period. 1 VRP (Oct. 24,
2017) at 18-19. The trial judge denied the motion, concluding that complaints are
no longer required to be timely to be admissible. 2 VRP (Oct. 26, 2017) at 344.
Based on those complaints, Y.M.’s testimony, and other evidence, the jury found
Martinez guilty. CP at 35. Martinez received an indeterminate sentence of 123
3
State v. Martinez, No. 97496-9
months to life. Id. at 40. The Court of Appeals affirmed in an unpublished
decision, holding that the trial court did err by finding that there is no timeliness
requirement, but that the four complaints were timely since they were
contemporaneous with the abuse. State v. Martinez, No. 77776-9-I, slip op. at 1, 7-
8 (Wash. Ct. App. July 1, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/777769.pdf. We granted review. State v.
Martinez, 194 Wash. 2d 1009 (2019).
ANALYSIS
At common law, victims of violent crimes were expected to raise an
immediate “hue and cry” so their community could mount an immediate response.
State v. Hill, 121 N.J. 150, 157, 578 A.2d 370 (1990) (quoting 2 SIR FREDERICK
POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW 578-79
(2d ed. 1923)). The failure to raise a hue and cry could be fatal to a future
prosecution or civil action. Dawn M. DuBois, A Matter of Time: Evidence of a
Victim’s Prompt Complaint in New York, 53 BROOK. L. REV. 1087, 1089 (1988)
(citing 4 JOHN HENRY WIGMORE, EVIDENCE §1135, at 298-306 nn.2-11 (Chadbourn
rev. ed. 1972)).
The general requirement to raise a hue and cry was eliminated in the mid-
1700’s, but, because of deeply sexist expectations, it widely persisted in cases of
alleged sexual violence. Kathryn M. Stanchi, The Paradox of the Fresh Complaint
4
State v. Martinez, No. 97496-9
Rule, 37 B.C. L. REV. 441, 446 (1996) (citing Hill, 121 N.J. at 158). It continued
to be applied in such cases under two general theories. First, an immediate outcry
(or some other sort of immediate complaint) by the alleged victim was often
required to be proved because courts were skeptical of victims’ claims. See, e.g.,
Davis v. State, 120 Ga. 433, 435, 48 S.E. 180 (1904) (“Without [a corroboration
requirement], every man is in danger of being prosecuted and convicted on the
testimony of a base woman, in whose testimony there is no truth.”). Second, the
fact the victim made an immediate complaint was often admitted to show that the
victim had made a timely report of the assault when it otherwise would not have
been able to do so under the Rules of Evidence. State v. Murley, 35 Wash. 2d 233,
236-37, 212 P.2d 801 (1949). Without evidence of a timely report, juries might
assume no assault occurred. Hill, 121 N.J. at 159 (citing State v. Thomas, 351 Mo.
804, 818, 174 S.W.2d 337 (1943)). We recognize that under either theory, the rule,
like society, ignored some victims of sexual violence and treated others with
unfortunate skepticism and demanded that they all behave in a like manner.2
2
The fact of the complaint doctrine has come under serious and thoughtful criticism. See, e.g.,
Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence
Against Women of Color, 43 STAN. L. REV. 1241, 1247, 1251, 1270-71, 1279 (1991) (explaining
the marginalization of immigrant women of color and Black women in contemporary feminist
and antiracist discourses and its impact on antirape legislation and the allocation of community
resources for rape victims). We recognize the complaint doctrine is predicated on myths about
sexual violence and offers no help to many victims. Marital rape was not a crime until 1983 in
our state. See LAWS OF 1983, ch. 118. Until the 1970s, many states defined rape as a crime
against a woman, ignoring male rape victims. See JOEL EPSTEIN & STACIA LANGENBAHN, U.S.
DEP’T OF JUSTICE, THE CRIMINAL JUSTICE AND COMMUNITY RESPONSE TO RAPE, at 7-8 (1994),
5
State v. Martinez, No. 97496-9
The closely related “fresh complaint” doctrine evolved as a response to the
common law requirement of hue and cry. Hill, 121 N.J. at 157. Eventually, the
requirement that the prosecution prove a sexual assault victim made a timely hue
and cry was replaced with the rule that the State could introduce such evidence in
its case in chief to negate any inference that because the victim had failed to tell
anyone she had been sexually assaulted, her later claim could not be believed. 3 Id.
at 159; State v. Kendricks, 891 S.W.2d 597, 601 (Tenn. 1994) (“Because juries
were allowed—sometimes even instructed—to draw negative inferences from the
[victim’s] failure to complain after an assault, . . . the [fact of the complaint
doctrine] evolved as a means of counterbalancing these negative inferences.”
(citation omitted)).
Despite the doctrine’s problematic roots, it still plays an important function
because many jurors still subscribe to the myth that “real” victims report promptly.
Beyond its original purpose to combat myths about female rape victims, the
doctrine has evolved to include others, including children, men, and same-sex rape
available at https://www.ncjrs.gov/pdffiles1/Digitization/148064NCJRS.pdf
[https://perma.cc/YNN2-WGVY] (describing how state rape statutes became gender-neutral
beginning in the 1970s, recognizing the existence and seriousness of men as rape-victims).
Enslaved women had no legal protection against rape and those in marginalized communities
little more. Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV.
1297, 1332 (1998). We recognize that the fact of the complaint doctrine offered these victims of
sexual violence little if any help.
3
The intent behind the rule was, in part, to protect victims against false jury beliefs. However, it
was also intended to protect defendants against false rape claims, a false belief carried on from
the original “hue and cry.” Hill, 121 N. J. at 160.
6
State v. Martinez, No. 97496-9
victims. See State v. Ragan, 22 Wash. App. 591, 598, 593 P.2d 815 (1979) (where a
16-year-old male victim was raped by an adult male, the appellate court explained
that it was proper to admit evidence of the victim’s early complaint to prevent “the
negative inference which otherwise would be properly drawn had the jury not
known of the early complaint”); State v. Ackerman, 90 Wash. App. 477, 484-85, 953
P.2d 816 (1998) (where the defendant was convicted of molesting a 12-year old
child, and the victim was unavailable to testify, the appellate court held that the
victim’s statements were properly admitted under the fact of the complaint
doctrine). The majority of states continue to apply the doctrine. Dale Joseph
Gilsinger, Annotation, Application of Common-Law “Fresh Complaint” Doctrine
as to Admissibility of Alleged Victim’s Disclosure of Sexual Offense– Post-1950
Cases, 39 A.L.R.6th, tbl. of cases, laws & rules at 267-76 (2008), § 3.5, at 13
(Supp. 2020). In Washington, the State may present evidence that the victim
reported the sexual violence to someone as part of its case in chief. State v.
Ferguson, 100 Wash. 2d 131, 135, 667 P.2d 68 (1983) (citing State v. Goebel, 40
Wash. 2d 18, 25, 240 P.2d 251 (1952), overruled in part on other grounds by State v.
Lough, 125 Wash. 2d 847, 889 P.2d 487 (1995)). The evidence admissible under the
doctrine is limited. Testimony under the doctrine is not admissible for the truth of
the matter asserted, only to demonstrate that the victim reported to someone. State
v. Stewart, 52 Wash. 61, 63, 100 P. 153 (1909). Witnesses may give sufficient
7
State v. Martinez, No. 97496-9
details “to identify the nature of the offense of which complaint was made,” but
details such as identity of the perpetrator are not admissible. Goebel, 40 Wash. 2d at
25.
Martinez essentially argues that Ferguson and Goebel are no longer good
law because they are inconsistent with our hearsay rules and are harmful because
they perpetuate myths about the victims of sexual violence. See Suppl. Br. of Pet’r
at 10-12. We will not overturn prior published opinions unless “ʻan established
rule is incorrect and harmful,’” or “the legal underpinnings of the precedent have
been eroded.” Pendergrast v. Matichuk, 186 Wash. 2d 556, 565, 379 P.3d 96 (2016)
(quoting In re Rights to Waters of Stranger Creek, 77 Wash. 2d 649, 653, 466 P.2d
508 (1970), and citing W.G. Clark Constr. Co. v. Pac. Nw. Reg’l Council of
Carpenters, 180 Wash. 2d 54, 66, 322 P.3d 1207 (2014)). Martinez has not shown
that either case is incorrect and harmful, or that their legal underpinnings have
eroded. As another high court noted recently, “there is no well developed body of
scientific research suggesting that these long-standing biases [against victims who
do not make timely reports] have been entirely eliminated.” State v. Daniel W.E.,
322 Conn. 593, 618, 142 A.3d 265 (2016). While society has arguably developed
a greater understanding that sexual assault victims often do not report their
experience, many jurors still mistakenly believe myths about how victims should
act after they are assaulted. See, e.g., Hill, 121 N.J. at 164 (noting that while “the
8
State v. Martinez, No. 97496-9
fresh-complaint rule does not necessarily contradict sexist notions . . . our judicial
process cannot remove from every juror all subtle biases or illogical views of the
world”); Commonwealth v. King, 445 Mass. 217, 230, 834 N.E.2d 1175 (2005)
(holding that the fresh complaint doctrine should now be seen as a way to mitigate
juror bias because “jurors continue to be skeptical of allegations of rape”).
“We are mindful that in some cases efforts to rid the judicial process of
sexism by unreasoned reform have proven in practice to be worse medicine than
the illness itself.” Hill, 121 N.J. at 164-65 (citing SUSAN ESTRICH, REAL RAPE 81-
83 (1987); Janet E. Findlater, Reexamining the Law of Rape, 86 MICH. L. REV.
1356, 1356-57 (1988)). But we reject the suggestion that retaining the rule in its
modern form amounts to endorsing the misogynistic myths that the rule evolved
from. The fact of the complaint is necessary in current jurisprudence because
mistaken beliefs about sexual violence are still pervasive in our society and in our
jury boxes. See generally, Kathryn M. Stanchi, The Paradox of the Fresh
Complaint Rule, 37 B.C. L. REV. 441, 448-49 (1996). “The fresh-complaint rule
responds to those jurors on their own terms.” Hill, 121 N.J. at 164. Meeting jurors
where they are “serves to neutralize the sexist expectations of some jurors,” which
9
State v. Martinez, No. 97496-9
can be particularly important in cases where there is little physical evidence or the
victim’s credibility suffers due to other stereotypes or biases. Id.
We recognize that the fact of the complaint doctrine is inconsistent with the
hearsay rules. But the rule is long standing, has been recognized since the hearsay
rules were codified, and provides an important supplement to those rules. “A
special rule that restores the credibility of sexual assault complainants is not only
practical and analytically justifiable, but also necessary” because of persisting
cultural stereotypes and bias, both explicit and implicit. Stanchi, supra, at 477.
Under our evidence rules, prior consistent statements may be used only when a
witness’s credibility has been attacked. ER 801(d)(1). But because of the nature
of sexual assault cases, where there is often little to no physical evidence, it is vital
to have a preemptive tool. Hill, 121 N.J. at 164. 4 In many cases, a defendant need
not explicitly or impliedly attack the victim’s credibility—juror bias based on
widespread mistaken beliefs about sexual assault and sexual assault victims has
already called the victim’s credibility into question. 5
Martinez has not established we should overrule Ferguson and Goebel. We
decline to do so. Because the fact of the complaint doctrine protects victims and
4
“[A]dmission of fresh complaint evidence under rules of evidence . . . ignores and obscures the
reality that sexual assault complainants face unique obstacles to just adjudication of their cases.”
Stanchi, supra, at 472.
5
Despite widespread belief that sexual assaults are committed by strangers, the vast majority of
sexual assaults are committed by someone the victim knows. Shawn E. Fields, Debunking the
10
State v. Martinez, No. 97496-9
provides an important supplement to the current rules of evidence, we decline to
abandon the doctrine.
REMAINING ISSUES
Martinez also argues that even under the fact of the complaint doctrine, the
reports by Y.M. were not timely because they were made after the charging period
ended. See Pet. for Rev. at 8. We review a judge’s decision to admit evidence for
abuse of discretion. State v. Wilson, 60 Wash. App. 887, 890, 808 P.2d 754 (1991)
(citing State v. Jones, 95 Wash. 2d 616, 628, 628 P.2d 472 (1981)). Martinez offers
no authority that establishes reports must be made within the charging period. The
doctrine merely requires that “the complaint was timely made.” Ferguson, 100
Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 WIS. L. REV.
429, 433 (2017) (citing Perpetrators of Sexual Violence: Statistics, RAINN
[https://perma.cc/FUL8-33TB] (“7 out of 10 rapes are committed by someone known to the
victim.”)). When sexual assault is committed by someone the victim knows or even lives with,
the sort of physical evidence many jurors want is often not available. “Post-verdict interviews
often confirm that jurors simply do not believe victims absent clear signs of physically forcible
rape coupled with a victim taking immediate legal action against her assailant.” Id. at 434 (citing
Louise Ellison & Vanessa E. Munro, A Stranger in the Bushes, or an Elephant in the Room?
Critical Reflections Upon Received Rape Myth Wisdom in the Context of a Mock Jury Study, 13
NEW CRIM. L. REV. 781, 784 (2010)). But physical force is rarely used by those who sexually
abuse children. WORLD HEALTH ORGANIZATION, GUIDELINES FOR MEDICO-LEGAL CARE FOR
VICTIMS OF SEXUAL VIOLENCE 76 (2003), available at
https://apps.who.int/iris/bitstream/handle/10665/42788/924154628X.pdf?sequence=1
[https://perma.cc/46WL-YETA]. Victims face immense barriers in pursuing a case, even if they
report the assault to police. “[O]ut of every 1,000 rapes, 994 perpetrators will walk free, 310 are
reported to police, 57 lead to arrest, 11 cases get referred to prosecutors, 7 cases will lead to a
felony conviction, and only 6 rapists will be incarcerated.” Olabisi Adurasola Alabi, Sexual
Violence Laws Redefined in the "Me Too" Era: Affirmative Consent & Statutes of Limitations, 25
WIDENER L. REV. 69, 70 (2019) (citing
The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/criminal-
justice-system (statistics from Dec 18, 2018)).
11
State v. Martinez, No. 97496-9
Wn.2d at 135-36. A complaint is timely if it is made when there is an
“ʻopportunity to complain.’” State v. Griffin, 43 Wash. 591, 597, 86 P. 951 (1906)
(quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *213). Here, Y.M. reported
the sexual abuse while it was ongoing, despite living with her abuser parent. We
leave it in the able hands of the trial court to determine what constitutes a timely
complaint based on the surrounding circumstances. See Griffin, 43 Wash. at 598-
99 (considering the circumstances surrounding delay of a complaint, including lack
of threat and opportunities to complain); see also Murley, 35 Wash. 2d at 237
(allowing details to “establish whether or not a complaint was made timely”); State
v. Graham, 59 Wash. App. 418, 424-25, 798 P.2d 314 (1990) (upholding the
admission of expert testimony explaining how often and why child victims wait to
report abuse); Wilson, 60 Wash. App. at 890 (upholding admission of evidence of
prior assaults to explain why the victim had waited to report). Trial judges have
discretion to admit evidence explaining why a victim waited to report facts of
sexual violence, and other circumstances, in deciding whether or not to admit fact
of the complaint testimony. Child abuse is not a set of multiple discrete acts, it is
an ongoing pattern and practice. See Rebecca L. Thomas, Notes, Adult Survivors
of Childhood Sexual Abuse and Statutes of Limitations: A Call For Legislative
Action, 26 WAKE FOREST L. REV. 1245, 1254 (1991) (citing Frederick H. Lindberg
& Lois J. Distad, Post-Traumatic Stress Disorders in Women Who Experienced
12
State v. Martinez, No. 97496-9
Childhood Incest, 9 CHILD ABUSE & NEGLECT 329, 330 (1985)). Because the
abuse was reported while the abuse was still ongoing, we find no abuse of
discretion in admitting the statements based on timeliness.
Martinez also argues that the trial judge erred in allowing four witnesses to
testify regarding Y.M.’s complaints. See Suppl. Br. of Pet’r at 2. We review a
judge’s decision to admit evidence for abuse of discretion. Wilson, 60 Wash. App. at
890 (citing Jones, 95 Wash. 2d at 628). Martinez relies on Commonwealth v. Arana,
where the Massachusetts Supreme Court found error in admitting testimony by
three witnesses under the fact of the complaint doctrine. 453 Mass. 214, 223, 901
N.E.2d 99 (2009). But Massachusetts’s fact of the complaint doctrine differs from
ours—under Massachusetts law, only one witness is allowed to testify about the
fact of the complaint. Id. at 220 (citing Commonwealth v. Murungu, 450 Mass.
441, 455-46, 879 N.E.2d 99 (2008)). Washington has no such rule. Martinez does
not establish the trial court abused its discretion in allowing four witnesses to
testify.
Finally, Martinez argues that the court “compounded the unfair prejudice”
by failing to give a jury instruction on the fact of the complaint evidence. Suppl.
Br. of Pet’r at 18. But Martinez did not request such an instruction so any error
was not preserved. See RAP 2.5(a). Regardless, we find no error in failing to give
an unrequested instruction. See, e.g., City of Seattle v. Love, 61 Wash. 2d 113, 114,
13
State v. Martinez, No. 97496-9
377 P.2d 255 (1962) (the court’s failure to instruct the jury in the absence of a
request to do so is not error) (citing State v. Goldstein, 58 Wash. 2d 155, 361 P.2d
639 (1961); State v. Ross, 85 Wash. 218, 147 P. 1149 (1915)).
CONCLUSION
Martinez has not shown that Ferguson and Goebel are incorrect and
harmful, or that the basis for those opinions has been eroded. Nor has he
established reversible error. Accordingly, we affirm.
____________________________
González, J.
WE CONCUR:
_____________________________ ____________________________
_____________________________ ____________________________
Johnson, J. Yu, J.
_____________________________ ____________________________
_____________________________ ____________________________
Owens, J. Whitener, J.
14
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
No. 97496-9
GORDON McCLOUD, J. (dissenting)—The majority clearly understands
that the “hue and cry” doctrine is based on a myth—the myth “that a female
naturally complains promptly of offensive sex liberties upon her person.” State v.
Murley, 35 Wash. 2d 233, 237, 212 P.2d 801 (1949). But it maintains this doctrine
anyway. It does so in the hope that it will combat widespread juror prejudices
against rape victims.
I disagree with this approach. I would not retain one false and prejudicial
myth (that female rape victims always raise a timely hue and cry) to combat
another false and prejudicial myth (that rape victims cannot be trusted). That path
poses several problems: it perpetuates the rape myth, it adds a judicially created
exception to the rule against hearsay despite the fact that the Rules of Evidence
(ERs) contain an exclusive list of exceptions, and it results in a blanket rule
allowing admission of those out-of-court statements without any of the indicia of
reliability that the enacted ERs demand of all other exceptions to the rule against
hearsay.
1
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
I therefore respectfully dissent. I would deal with the problem that the
majority and I both recognize by applying our ERs, allowing the State to make its
case as it must in every other criminal prosecution, and crafting appropriate voir
dire questions and jury instructions to combat the false beliefs.
I. THE HUE AND CRY DOCTRINE REFLECTS A LONG HISTORY OF PREJUDICE
AND PROBLEMATIC, INACCURATE ASSUMPTIONS ABOUT RAPE VICTIMS
I agree with the majority about the deeply flawed origins of our current “hue
and cry” or “fact of complaint” doctrine. Majority at 5-7. In feudal England, “the
evidence . . . indicates that rape was not publicly prosecuted at all, that maintaining
an appeal was difficult, and that maintaining it to penalty was very unlikely.”
Roger D. Groot, The Crime of Rape temp. Richard I and John, 9 J. LEGAL HIST.
324, 330 (1988). Any remedy “depend[ed] more on the power of the victim than
the quality of the event,” rendering the “least powerful[] those most likely to be
victimized in the first instance, [and] also the least likely to obtain any redress.”
Id. Henry de Bracton, a 13th century legal scholar, reasoned that when “a virgin
has been so deflowered and overpowered” she should “hue and cry” “whilst the act
is fresh” and show “honest men the injury done to her, the blood and her dress
stained with blood, and the tearing of her dress.” 2 HENRICI DE BRACTON, DE
LEGIBUS ET CONSUETUDINIBUS ANGLIAE 483 (Sir Travers Twiss ed., trans., 1879).
“Rape” at that time meant the violent rape of a virgin woman. See State v. Hill,
2
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
121 N.J. 150, 158, 578 A.2d 370 (1990) (noting the exclusion of many women,
including “women who were not virgins” and “women who did not sustain bloody
physical injuries”).
This feudal legal doctrine based on the hue and cry myth was nevertheless
incorporated into the law in this country. But it was never a myth that was applied
equally to all rape victims. Specifically, the law provided no protection at all to
most nonwhite rape victims—not even a timely hue and cry would provide a legal
remedy for Native American or enslaved women for much of this country’s
history. See SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE
140, 151-53 (1975); Jill Elaine Hasday, Federalism and the Family Reconstructed,
45 UCLA L. REV. 1297, 1332-33 (1998) (“Slaves had no legal protection against
rape, and slave women were sold into concubinage or prostitution at ‘fancy girl’
markets devoted specifically to that purpose.” (footnote omitted)). And of course
the hue and cry doctrine was never applied to male rape victims. In fact, sexual
violence against males was not even covered by early rape laws.1
1
“In the United Kingdom rape is a crime against women specifying forced penile
penetration of the vagina. . . . Male rape cannot occur within these strict legal terms.”
Gillian Mezey & Michael King, Male Victims of Sexual Assault, 27 MED. SCI. & L.
122 (1987). In the United States, “[r]ape, at common law, is unlawful carnal
knowledge of a woman by force and against her will.” NAT’L INST. OF LAW ENF’T
& CRIMINAL JUSTICE, U.S. DEP’T OF JUSTICE, FORCIBLE RAPE: AN ANALYSIS OF
LEGAL ISSUES at 5 (Mar. 1978). At the time the cited book was written, in 1978,
“many states ha[d] made the crime sex-neutral” and stopped presuming “male
3
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
For the limited category of women to whom the doctrine did apply, the hue
and cry requirement provided little comfort. It was part of a criminal justice
system that historically treated women with skepticism and imposed barriers
unique to rape allegations. See generally Michelle J. Anderson, The Legacy of the
Prompt Complaint Requirement, Corroboration Requirement, and Cautionary
Instructions on Campus Sexual Assault, 84 B.U. L. REV. 945 (2004). Those
barriers gave men accused of rape “special legal protection beyond that which the
law affords defendants accused of other crimes” because they feared false
accusations by women against men. Id. at 1022. This is an age-old fear.
Seventeenth century legal scholar Sir Matthew Hale summed up the sentiment of
his time: rape “is an accusation easily to be made and hard to be proved, and harder
to be defended by the party accused, tho never so innocent.” 1 MATTHEW HALE,
THE HISTORY OF THE PLEAS OF THE CROWN 635 (1736).
Then, at some point, the hue and cry doctrine changed from a rule requiring
the prosecution to prove a timely hue and cry as an element of its rape case, to a
rule allowing the prosecution to bolster its case with timely hue and cry hearsay
evidence to prove the truth of the matter asserted. The rationale for the rule,
though, remained the same: that the testimony of a female rape victim is
perpetrators and female victims.” Id. at 7, 13 (citing Michigan, Washington, and
Wisconsin statutes as specific examples).
4
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
inherently suspect and, hence, required a special rule to treat such testimony as
presumptively under attack and in need of special bolstering.
In Washington, we first used this rationale to uphold admission of such
hearsay evidence not long after statehood. State v. Hunter, 18 Wash. 670, 672, 52
P. 247 (1898) (“[W]e think the better rule is to restrict the evidence to the fact of
complaint, and that anything beyond that is hearsay of the most dangerous
character.”). We upheld the trial court’s decision to admit the fact that the
complaint was made, but we ruled that the trial court must exclude the name of the
accused and other specifics. State v. Griffin, 43 Wash. 591, 594-95, 86 P. 951
(1906). We also held that the complaint could be admitted only if it were timely
made. State v. Ferguson, 100 Wash. 2d 131, 135-36, 667 P.2d 68 (1983). We used
the same rationale to justify this version of the hue and cry doctrine as the rationale
used eight centuries ago: “a female naturally complains promptly of offensive sex
liberties upon her person.” Murley, 35 Wash. 2d at 237.
In fact, we explicitly quoted Blackstone and endorsed his false and
unfounded assumption about who was a believable complainant:
“If the witness be of good fame; if she presently discovered the
offense, and made search for the offender; if the party accused fled for
it; these and the like are concurring circumstances which give greater
probability to her evidence. But, on the other side, if she be of evil
fame, and stand unsupported by others; if she concealed the injury for
any considerable time after she had opportunity to complain; if the
5
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
place where the fact was alleged to be committed, was where it was
possible she might have been heard, and she made no outcry; these and
the like circumstances carry a strong, but not conclusive, presumption
that her testimony is false or feigned.”
Griffin, 43 Wash. at 597-98 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES
*213) (emphasis added).
We now know that the historic assumption that a woman will “hue and cry”
promptly has no basis in reality. Child victims—like the victim in this case—
frequently delay reporting sexual abuse out of “fear of the perpetrator, love and
respect for a family or friend perpetrator, and fear that they will not be believed.”
Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C. L. REV.
441, 460 (1996). Adults may delay “because they fear no one will believe them, or
because they feel embarrassed or guilty about the sexual assault.” Id. at 459-60.
Some victims remain silent forever: as the majority recognizes, only 310 out of
1,000 rapes are even reported to police.2
Thus, the hue and cry rule stems from false assumptions about how “real”
rape victims behave. All nine justices agree on this point. The question is what to
do about that: maintain the hue and cry exception to the ERs as the only common
2
Majority at 10 n.5 (quoting Olabisi Adurasola Alabi, Sexual Violence Laws
Redefined in the “Me Too” Era: Affirmative Consent & Statutes of Limitations, 25
WIDENER L. REV. 69, 70 (2019) (citing The Criminal Justice System: Statistics, RAINN,
https://www.rainn.org/statistics/criminal-justice-system (statistics from Dec. 18, 2018))).
6
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
law hearsay exception among an otherwise exclusive list of officially enacted
exceptions, as the majority does, or subject these out-of-court statements to the
same rigorous reliability tests that our evidence rules apply to all other out-of-court
statements offered for the truth of the matter asserted in all other prosecutions.
I choose the latter path as the one that more fully protects the dignity of the
complainant and the reliability of the process.
II. WE SHOULD DISCARD THIS ANTIQUATED COMMON LAW DOCTRINE AND
ENFORCE THE ERS TO MORE FULLY PROTECT THE DIGNITY OF
COMPLAINANTS AND THE RELIABILITY OF THE PROCESS
A. The ERs Exclude Hearsay with Some Explicitly Listed Exceptions; a
Hue and Cry Exception Is Not among Them
The majority acknowledges that the hue and cry rule is separate from any
enumerated hearsay exception and is “inconsistent with the hearsay rules.”
Majority at 9. But it does not recognize the importance of this fact: it is important
because the list of exceptions to the rule against hearsay was designed to be
exclusive.
“Relevant testimony may be excluded from trial if it is hearsay,” defined as
“‘a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.’” State v.
Garcia, 179 Wash. 2d 828, 845, 318 P.3d 266 (2014) (quoting ER 801(c)).
7
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
“In general, the testimony of a witness cannot be bolstered by showing that
the witness has made prior, out-of-court statements similar to and in harmony with
his or her present testimony on the stand.” Thomas v. French, 99 Wash. 2d 95, 103,
659 P.2d 1097 (1983) (citing Sweazey v. Valley Transp., Inc., 6 Wash. 2d 324, 332,
107 P.2d 567, 111 P.2d 1010 (1940)). We bar such bolstering because
“[r]epetition generally is not a valid test of veracity.” State v. Purdom, 106 Wash. 2d
745, 750, 725 P.2d 622 (1986) (citing State v. Harper, 35 Wash. App. 855, 670 P.2d
296 (1983)). The emphasis at trial should be on in-court, not out-of-court,
statements. Tome v. United States, 513 U.S. 150, 165, 115 S. Ct. 696, 130 L. Ed.
2d 574 (1995).
But we long ago recognized a single common law exception to this
antibolstering rule: out-of-court statements were admissible to rebut charges of
“recent fabrication.” Murley, 35 Wash. 2d at 238. Under that exception, a witness’s
prior consistent statements could be admitted after the witness’s testimony had
been attacked as recently fabricated. Id. The prior consistent statements were
admissible for only a limited purpose: “for the sole purpose of re-establishing the
witness’ credibility.” Id.
This court consciously included and expanded this exception when we
drafted our modern ERs: we made such prior consistent statements admissible for
8
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
the truth of the matter asserted as well. ER 801(d)(1)(ii) (providing for
admissibility of prior consistent statements “to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive”);
Comment to ER 801(d)(1)(ii), 91 Wash. 2d at 1163 (comment to evidence rules
noting that the rule makes statements “admissible as substantive evidence which
were previously admissible only to rehabilitate an impeached witness”).
That should be the end of our inquiry. Under the evidence rules enacted by
this court, “[h]earsay is not admissible except as provided by these rules, by other
court rules, or by statute.” ER 802. In addition to statements defined as
nonhearsay under ER 801, our rules provide 26 distinct hearsay exceptions
available for different reasons in different contexts. ER 803(a), 804(b). The hue
and cry exception is not one of them. Under the rule of expressio unius est
exclusio alterius, we interpret that detailed list to be exclusive. In re Det. of Lewis,
163 Wash. 2d 188, 196, 177 P.3d 708 (2008) (quoting Landmark Dev., Inc. v. City of
Roy, 138 Wash. 2d 561, 571, 980 P.2d 1234 (1999) (quoting Wash. Nat. Gas Co. v.
Pub. Util. Dist. No. 1 of Snohomish County, 77 Wash. 2d 94, 98, 459 P.2d 663
(1969))).
Further, unlike the drafters of the federal rules, the drafters of our State
evidence rules “decided not to adopt any catch-all” hearsay exception to avoid a
9
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
“lack of uniformity which would make preparation for trial difficult.” Comment to
ER 803(b), 91 Wash. 2d at 1171. We sought to avoid “doubt whether an affirmance
of an admission of evidence under the catch-all provision amounted to the creation
of a new exception with the force of precedent or merely a refusal to rule that the
trial court had abused its discretion.” Id. This decision bolsters the conclusion that
the ER’s list of exceptions to the hearsay rule is exclusive.
Hue and cry is not the only common law evidence rule that we abandoned
when we adopted formal evidence rules, so we can’t assume it was abandoned by
accident. For example, the “res gestae” doctrine, dating back to early statehood,
see State v. Freidrich, 4 Wash. 204, 214, 29 P. 1055 (1892); State v. Smith, 26
Wash. 354, 67 P. 70 (1901), is also missing from our evidence rules. We adopted a
few specific and separately listed exceptions in place of that res gestae doctrine; it
“evolved into several present day hearsay exceptions, usually identified as the
present sense impression, the excited utterance, and statements of present bodily
condition, mental states, and emotions.” State v. Pugh, 167 Wash. 2d 825, 839-40,
225 P.3d 892 (2009) (citing 2 KENNETH S. BROUN, MCCORMICK ON EVIDENCE §
268, at 245-46 (6th ed. 2006)). Thus, it cannot be argued that the rule drafters
simply missed the hue and cry doctrine because they were ignoring prior common
10
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
law. Instead, once again, their decision to exclude it should be considered
intentional and based on the purposes of the evidence rules.
Finally, since 1979, we made these evidence rules “govern proceedings in
the courts of the state of Washington” (with specific exceptions inapplicable here).
ER 101, 1101; see also In re Det. of Lane, 182 Wash. App. 848, 855, 332 P.3d 1042
(2014) (“ER 101 conveys the plain message that the Rules of Evidence will apply
in all court proceedings in Washington unless an exception is stated in ER
1101.”). 3 If we, the court, thought that the hue and cry doctrine was reliable
enough to be a hearsay exception, we could have put it in the rules themselves.
To be sure, our court has discussed the hue and cry doctrine even after we
adopted the evidence rules. Ferguson, 100 Wash. 2d 131; see also Pugh, 167 Wash. 2d
at 842 (comparing the pre-evidence rules version of hue and cry doctrine with “res
gestae” evidence). But Ferguson did not address the postrule legitimacy of the
doctrine itself. Instead, defendant/petitioner Ferguson seems to have assumed that
3
The legislature may certainly craft exceptions from and additions to the evidence
rules. See State v. Monson, 113 Wash. 2d 833, 838-39, 784 P.2d 485 (1989). For example,
in 1984, the Court of Appeals questioned whether a statutory “codification of the public
records exception to the hearsay rule” remained “valid following the adoption of the
evidence rules,” which lacked such an exemption. Id. at 838 (citing State v. Dibley, 38
Wash. App. 824, 828 n.4, 691 P.2d 209 (1984)). The answer was that the statutory
exemption certainly remained valid: ER 803(a)(8) and its comment “show[ed] that the
reason the federal public records hearsay exception was not adopted [in Washington] was
because the [Washington] statute already provided for the exception.” Id. at 839. No
such statute codifying the hue and cry or fact of complaint rule exists.
11
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
the doctrine remained valid and argued instead that the trial court had erred by
admitting details of the complaint in addition to the fact that it was made. Id. at
135-36. In other words, that case was about whether the hue and cry rule had been
applied correctly—not about whether the hue and cry rule survived the ERs. Id.
Martinez raises that argument for the first time since the adoption of the ERs.
B. Our Evidence Rules Exclude Hearsay Due to Its Unreliability; Hue
and Cry Hearsay Is Not Exempt from This Problem
The majority reasons that given “the nature of sexual assault cases, where
there is often little to no physical evidence,” admission of “hue and cry” hearsay
evidence is “vital [as] a preemptive tool.” Majority at 10.
This conclusion does not address the potential problem with most out-of-
court statements, though: their lack of reliability. See, e.g., Purdom, 106 Wash. 2d at
750 (“Repetition generally is not a valid test of veracity.” (citing Harper, 35 Wn.
App. 855)). Relevance alone does not answer this question, either: “That certain
out-of-court statements may be relevant does not dispose of the question whether
they are admissible.” Tome, 513 U.S. at 164. The hue and cry rule continues to
allow the court to admit out-of-court statements, for the truth of the matter
asserted, without a general determination by the rules or an individual
determination by the trial court that the statements are reliable.
12
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
This undermines the very reason for a duly enacted set of evidence rules.
Those rules exist so “that the truth may be ascertained and proceedings justly
determined.” ER 102. A relaxation of the hearsay rules would surely aid the
prosecution’s ability to obtain a conviction in any case in which credibility was key
and physical evidence was lacking. But the rules prohibit hearsay because
unsworn, out-of-court statements are inherently unreliable. Nothing about the
majority’s opinion suggests that Y.M.’s statements, or complaints of sexual assault
generally, are more reliable than any other out-of-court statement. Instead, the
general rule concerning reliable evidence should apply: juries make their decision
based on in-court testimony. See Tome, 513 U.S. at 165; United States v. Salerno,
505 U.S. 317, 322, 112 S. Ct. 2503, 120 L. Ed. 2d 255 (1992) (Courts should not
“alter evidentiary rules merely because litigants might prefer different rules in a
particular class of cases.”).
C. Other States Have Abolished or Modified the Doctrine
Different states have acknowledged some of these problems and taken
different approaches to addressing them. Almost 20 years ago, the Tennessee
Supreme Court recognized that the doctrine had its “genesis in the profoundly
sexist expectation that female victims of sexual crimes should respond in a
prescribed manner or risk losing credibility.” State v. Kendricks, 891 S.W.2d 597,
13
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
604 (Tenn. 1994). Similarly, New Jersey’s Supreme Court has recognized that the
doctrine is based on a “pseudo-Freudian analysis of the ways a ‘normal’ woman
would react to sex and to rape.” Hill, 121 N.J. at 162.
Tennessee then abolished the doctrine as applied to children—like the child
victim in this case—because “unlike the presumptions regarding adult victims,
juries do not necessarily presume that children fabricate, nor do they presume that
a child will complain immediately.” State v. Livingston, 907 S.W.2d 392, 395
(Tenn. 1995). Massachusetts limited testimony “to that of one witness—the first
person told of the assault” so as to “accomplish the primary goal of the doctrine”
while avoiding excessive prejudice. Commonwealth v. King, 445 Mass. 217, 242-
43, 834 N.E.2d 1175 (2005). California and Vermont chose to admit complaints
for limited nonhearsay purposes, in accordance with their respective rules of
evidence. People v. Brown, 8 Cal. 4th 746, 760-61, 883 P.2d 949, 35 Cal. Rptr. 2d
407 (1994) (characterizing “complaint” of a crime as nonhearsay conduct); State v.
Madigan, 2015 VT 59, ¶ 28, 99 Vt. 211, 228-29, 122 A.3d 517 (2015) (rejecting
“the ‘fresh-complaint rule’ as an independent evidentiary doctrine because the
doctrine has been largely supplanted by rules of evidence” but noting that that
14
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
evidence “is often, though not always, admissible under our modern rules of
evidence”). 4
We should follow the guidance of these states to seek solutions other than
upholding the hue and cry rule in its current form. I would take the clear and direct
path that California and Vermont chose and apply our duly enacted ERs—as we do
in all other situations. That would mean that a timely complaint of rape would be
admissible as substantive evidence to rebut express or implied charges of recent
fabrication. ER 801(d)(1)(ii). It could also be admissible as an excited utterance,
ER 803(a)(2), a statement for purposes of medical treatment, ER 803(a)(4), a
statement of present mental state, ER 803(a)(1), etc. But all such admissibility
decisions would have to be based on an individual finding that it satisfied one of
those exceptions—exceptions that must be applied to every other out-of-court
statement offered for the truth of the matter asserted in every other serious violent
criminal case.
D. There Are Other Ways To Deal with Juror Prejudices
The majority acknowledges that this rule “evolved from” “misogynistic
myths” but maintains it to “[m]eet[] jurors where they are.” Majority at 8-9.
4
And, as the majority recognizes, some states have maintained a “fact of
complaint” rule. See, e.g., State v. Daniel W.E., 322 Conn. 593, 618, 142 A.3d 265
(2016); Hill, 121 N.J. 150.
15
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
I agree that combating juror prejudice presents the most compelling reason
for keeping the rule.5 False assumptions about sexual assault victims are surely
widespread. And jurors, as a cross section of the community, may believe the false
assumptions that gave rise to the hue and cry doctrine in the first place. But an
unwritten common law hearsay exception—one not even premised on the
reliability of the admitted out-of-court statements—is not the answer: two wrongs
don’t make a right.
Creating a rule that allows admission of potentially unreliable evidence in
order to counteract juror prejudice also sets a dangerous precedent for dealing with
other juror prejudices. Certainly, “[i]ndividual jurors bring to their deliberations
‘qualities of human nature and varieties of human experience, the range of which is
unknown and perhaps unknowable.’” McCleskey v. Kemp, 481 U.S. 279, 311, 107
S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (quoting Peters v. Kiff, 407 U.S. 493, 503, 92
S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (lead opinion of Marshall, J.)). And those
qualities likely include prejudice—the same sorts of prejudice that attorneys,
5
I don’t necessarily agree that such prejudice existed here. The victim in this case
was a child. The State has neither argued nor shown that the general public believes the
hue and cry myths when it comes to children. And the cases suggest that they do not.
See Livingston, 907 S.W.2d at 395 (“[U]nlike the presumptions regarding adult victims,
juries do not necessarily presume that children fabricate, nor do they presume that a child
will complain immediately.”); Brown, 8 Cal. 4th at 758 (“Child victims, in particular,
commonly are reluctant to report such incidents and delay in doing so, or fail to provide a
full report.”).
16
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
litigants, and we judges bring to our decision-making, whether we realize it or not.
But we don’t counteract those prejudices with offsetting prejudices or supposedly
offsetting unreliable, nonscientific data. Doing that would lead to even more
unreliable decisions.
Instead, we have adopted other cautionary tactics (though certainly with less
than perfect results). Still, I would apply those cautionary tactics that are clearly
permissible and pose no unreliability problems, such as a robust voir dire process,
introductory juror videos, and detailed jury instructions.6 Voir dire, in particular,
“is necessary to discover bias in prospective jurors and to assist the trial court in its
responsibility to remove prospective jurors who will not be able to follow its
instructions on the law.” State v. Davis, 141 Wash. 2d 798, 825-26, 10 P.3d 977
(2000). As Justice Marshall explained in the context of racial prejudice, “[g]iven
the history and continuing legacy of racism in our country,” it was “not at all
‘inconceivable’ that the voir dire process” where a defendant is accused of “an
interracial sexual attack and murder” could “have legitimately extended over six
weeks” to “obtain a fair and impartial jury.” Press-Enter. Co. v. Superior Court,
464 U.S. 501, 521-22, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Marshall, J.,
concurring in the judgment). The same extension of juror questioning would be
6
In this case, no party proposed any cautionary jury instructions regarding
prejudice against Y.M.’s testimony.
17
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
appropriate where, as here, the history and continuing legacy of prejudice against
rape complainants is at issue.
III. ADMITTING Y.M.’S HEARSAY STATEMENTS WAS NOT HARMLESS
Erroneous evidentiary rulings require reversal and a new trial when “‘within
reasonable probabilities, had the error not occurred, the outcome of the trial would
probably have been materially affected.’” State v. Smith, 106 Wash. 2d 772, 780, 725
P.2d 951 (1986) (quoting State v. Cunningham, 93 Wash. 2d 823, 831, 613 P.2d 1139
(1980)).
The trial court allowed the State to present the facts of not one, not two, but
four hearsay complaints. Day after day, the jury heard from numerous witnesses
that Y.M. previously reported that she “had been raped,” 3 Verbatim Report of
Proceedings (VRP) (Oct. 30, 2017) at 436, that “she had been being abused and
that she didn’t want to go home,” id. at 455, that she “was molested and raped,” 3
VRP (Oct. 31, 2017) at 508, that she “was raped,” 4 VRP (Oct. 31, 2017) at 615,
that she had “been raped,” 4 VRP (Nov. 1, 2017) at 740, and that her father had
“been raping her,” id. at 742.
Within reasonable probabilities, Y.M.’s out-of-court statements materially
affected the outcome of the trial. The State’s entire case revolved around the
credibility of Y.M.’s testimony. The State used the out-of-court statements about
18
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
how Y.M. had repeated her allegations as substantive evidence to bolster her
credibility. It then argued in closing that the fact that Y.M. “told people what
happened to her repeatedly” meant she was credible. 5 VRP (Nov. 6, 2017) at 828.
But as stated above, “[r]epetition generally is not a valid test of veracity.”
Purdom, 106 Wash. 2d at 750 (citing Harper, 35 Wash. App. 855). The erroneous
admission of these statements likely affected the outcome of the trial and
Martinez’s conviction should be reversed.
CONCLUSION
“When the prosecution of rape incorporates rape myths, it promotes sex
discrimination and undermines women’s confidence in the legal system.”
Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair
Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1060 (1991).
The hue and cry doctrine incorporates ancient rape myths into modern
legal doctrine and allows the jury to consider potentially unreliable out-of-
court statements for the truth of the matter asserted. I would condemn the
hue and cry exception to the rule against hearsay, hold that Y.M.’s out-of-
court statements were inadmissible hearsay, reverse Martinez’s conviction,
and remand for a new trial.
19
State v. Martinez (Simon Ortiz), No. 97496-9
(Gordon McCloud, J., dissenting)
______________________________________
20