Whether a report by a Sexual Assault Nurse Examiner (SANE) is admissible in a rape trial, either as a medical record or a prior consistent statement.

A jury convicted the defendant of crimes included aggravated rape after the victim testified that he attacked her, digitally raped her, picked up her purse, and then ran away when a neighbor intervened. The defendant admitted that he attempted to steal the victim’s purse, but denied any sexual assault.

The victim’s 911 call was played as first complaint evidence. In it she alleged that the defendant touched her breasts, but did not allege rape, a fact central to the defense. Also admitted into evidence was a form filled out by a SANE nurse, stating that the assailant “covered [the victim’s] mouth with his hands, put his hand in the vagina area, put his finger in her vagina, hand between buttocks, hands up her shirt and ‘groped’ breasts.”

The most significant claim raised by the defendant on appeal is that the victim’s statement to the SANE nurse was inadmissible hearsay. The trial judge determined that the record was admissible as a hospital record. The Appeals Court noted that the statement “seem[ed] to relate at most only incidentally to medical treatment,” but held that it was nevertheless admissible as a prior consistent statement, to rebut charges of recent fabrication. 74 Mass. App. Ct. 330, 334-337 (2009).

The defendant argues that the Appeals Court could not properly rely on the prior consistent statement exception, where the judge himself did not rely on it; prior consistent statements are not admissible for the truth of the matter, and are admissible only in the discretion of the judge. The defendant further argues that the statement was not admissible as a medical record, because it was primarily obtained in anticipation of trial rather than for medical treatment.

On the defendant’s presentation of the facts, neither basis for admission of the SANE report is compelling.  The report was primarily oriented toward prosecution, rather than treatment.  While the defendant certainly opened the door to admission of prior consistent statements, admission on that basis would have required different jury instructions.

Without expressing an opinion on this defendant’s guilt or innocence, I note that this claim highlights a weakness in the Court’s first complaint jurisprudence:  a rape victim’s first complaint will probably not be his or her most comprehensive.  In this case, the victim did not disclose rape to the 911 responder, to her neighbor, or to the first doctor to treat her, but did disclose rape to a nurse trained in sexual assault interviews.  The rule that the first complaint, rather than a single fresh complaint, may be admitted puts the first responder in a tough position – to persuade the victim to respond comprehensively during an emergency, or to avoid eliciting a report of sexual assault at all.  It may also, perhaps, put judges in the position of stretching to admit a later report on some other basis.