| On March 9, 1988, 22-year-old Vincent Ross was arrested on charges of sexually assaulting a 10-year-old girl in Newark, New Jersey.
In May 1989, Ross went to trial in Essex County Superior Court. The prosecution told the jury that the girl was the daughter of a woman who was living with Ross’s girlfriend. During opening statement, the prosecutor said that the girl, identified as E.C., was so young that she could not have had the knowledge to make the allegation of being sexually assaulted orally and anally unless the assaults actually happened.
The defense lawyer, during opening statement, countered by telling the jury that in fact E.C. did have such knowledge because she had claimed to have been sexually abused twice before, at ages six and eight.
The prosecution objected, the trial was halted, and the jury was sent out. During arguments on this issue, the defense said that prior to trial, the prosecution had turned over a report from the New Jersey Division of Youth and Family Services (DYFS). That report said E.C. had been sexually molested by an adult male relative when she was six and by a different adult male relative when she was eight.
The judge held a hearing, during which E.C. testified that those assaults had occurred. Her testimony only addressed whether the events occurred. At the close of the hearing, the trial judge ruled that the Rape Shield Law precluded any reference to the prior claims.
The jury was recalled and the judge instructed them to disregard the references to prior allegations by E.C. “That was incorrect, should not have been made and you are to disregard it and strike if from your recollections,” the judge said.
The defense objected to the use of the word “incorrect,” but the judge overruled the objection.
E.C. testified that on two occasions between March 14, 1987 and May 31, 1987, Ross forced her to engage in fellatio and on two other occasions to engage in anal sex.
Ross testified and denied the allegations.
During closing argument, the prosecutor told the jury, “I ask you if you think a 10-year-old child could give you the detail you heard yesterday while making up the incident. Think back as to what she told you [about] what happened, some of my questions, what she did. Could that 10-year-old child that defense counsel tells you would not understand the significance of what she’s doing if it were not true, she was making it up, didn’t understand the significance of it to the defendant.
“Well,” the prosecutor continued. “Would that 10-year-old child have the kind of detailed knowledge of what went on that you heard yesterday from the stand?”
The prosecutor also declared, “There has been no suggestion of what reason the child would have to make up such a charge.”
On May 25, 1989, the jury convicted Ross of two counts of sexual assault, one count of aggravated sexual assault, and two counts of endangering a child. He was sentenced to 15 years in prison.
On June 25, 1991, the Appellate Division of the New Jersey Superior Court vacated the conviction and ordered a new trial.
The court held that the prosecution “[o]bviously was aware that the child's claims of prior sexual victimization…provided her with a degree of knowledge potentially belying
her alleged naivete. For the prosecutor to have made that argument knowing it to be at least arguably contrary to facts which defendant was precluded from adducing was
improper, unfair, and, in view of the paramountcy of the credibility issue, irremediably prejudicial.”
The court went on to say that prior to a retrial, another hearing was to be held to determine whether there was any truth to the girl's prior allegations. The court said that if the prior allegations were false, these would no longer be evidence of sexual conduct and would not be subject to the Rape Shield law. As a result, the evidence would be admissible at a retrial as impeachment evidence. If the prior allegations were true, the appellate court said the evidence "might" be admissible to show prior knowledge.
The court noted that it had previously held in an unrelated case that evidence of “prior adjudicated sexual abuse of a child victim was admissible…because it tended to explain how a young child would have the sexual knowledge to initiate and describe sexual conduct.” The court said that prior ruling was based on the principle that the Rape Shield Law, like any other law which attempts to pre-judge relevancy and admissibility, must not be permitted to defeat defendant's sixth amendment right to confront the witnesses against him, and particularly, his right to a fair opportunity for cross-examination.”
On July 25, 1991, Ross was released on bond pending a retrial.
On March 2, 1992, the prosecution dismissed the charges saying that it was unable to locate E.C. or her family.
– Maurice Possley
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