What happens when an alleged sex offense is not reported to the police or charged criminally until years after the offense is alleged to have occurred?
We are often asked whether a substantial delay in reporting time in relation to child sexual offenses will have a substantial impact on the jury. That is, does a delay of months, or even many years, in the disclosure of sexual abuse create a good defense? The answer is… Yes and no.
The delay, in and of itself, will have little effect on decisions by police and prosecutors as to whether the case should be pursued criminally or not. This delay in reporting, referred to in the social science community that study child sex offenses as "delayed disclosure", is something that is fully accepted within the law enforcement community. The social scientists, and with them the police and prosecutors, simply view delayed disclosure as a common occurrence arising from the nature of sex offenses. As a result, the delay by itself will rarely affect criminal investigation and charging decisions. In fact, to the contrary, the law-enforcement agencies
expect delayed disclosures. To some degree, it is more surprising in their eyes when a sexual abuse disclosure is made immediately.
So, we can pretty emphatically say that "delayed disclosure" does not impede prosecutorial decisions. But just as important to our inquiry as the impact of "delayed disclosure" on police and prosecutors, is the question of how a jury might perceive a "delayed disclosure." It is a common practice for prosecutors to bring in experts who will explain to the jury the frequency of and reasons for delayed disclosure. Regardless, we can argue to the jury that the delayed disclosure always needs to be looked at in context.
While the delayed disclosure, in and of itself, may not be grounds to raise reasonable doubt in child (or even adult) sexual abuse cases, the context of the disclosure can make a difference. For example, was the disclosure, even if delayed, made in the context of an ongoing divorce or or child custody battle? If so, would the delay in disclosure be just as easily explained by the timing of parent coaching, rather than some other cause? In addition, we would like to know how many opportunities there had been to disclose this offense in the past? Had anybody in the past ever directly asked the child whether sexual abuse had occurred? Had the child made any false disclosures previously? Had the child denied sexual abuse in the past when there might have been a safe opportunity to ask? Had the suspected offender been in the home the whole time? Or might the suspected offender have been absent for a period of time,
By bringing these contextual questions and overlaying them onto the question of delayed disclosure, we can spot potential defenses even if, as a general practice, delayed disclosures are common in this area.