By Criminal Defense Lawyer Jeremy Rosenthal
An “outcry” is the term used to describe generally when a complaining witness – typically a child younger than 17 years old – describes sexual abuse for the first time to a person 18 years or older.
Why an Outcry is Important
Outcries and the circumstances which surround them are critical to sexual assault cases. Psychologists I’ve worked with on sexual abuse cases have described sexual abuse or molestation as a “rock in the shoe” a victim carries with them all or most of the time. The victim, psychologists say, are then constantly evaluating and ‘testing’ others around them including grown-ups to see if they can trust that person with the often confusing and very private information.
When an Outcry Can be Questionable
We expect valid outcries of abuse, then, to be in circumstances where the victim is in a situation of trust, love or safety. But we often see an outcry in situations where the complaining witness is in trouble with an adult or led by hysterical questioning. With teens, a questionable outcry may come when parents are cross examining a teen trying to avoid being in trouble – or where a teen might be desperate for attention.
Often times law enforcement and even prosecutors will glaze over problematic outcries.
The Legal Significance of an Outcry
Texas Code of Criminal Procedure 38.072 allows an ‘outcry witness’ to testify in court and repeat the minor’s story they were originally told. Because outcry is a ‘process’ of the minor opening up – often to different adults – courts generally allow multiple adults to come and repeat the child’s story. Normally repeating what another person has said to you is deemed hearsay and is inadmissible in court – violating your 6th Amendment right to confront your accuser.
The original outcry witness is allowed to testify but often so are more polished law enforcement professionals too because they also interview a child accuser.
An outcry witness cannot testify in the place of the complaining witness, but instead the prosecution uses outcry witnesses to fortify the complaining witness’ story. It’s not uncommon for the state’s witness’ to play human polygraph and try to telegraph to the jury they believe the accusers story.
The prosecution and defense have a very different view of an outcry. While the prosecution tends to take an outcry at face value and then to exploit rule 38.072 in an effort to retell time and again the allegations before the jury, the defense is focusing on the context and the substance of the outcry itself. Does it pass the “rock in the shoe” test?