State v. Martinez

S
            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

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