Indictments found and returned in the
Superior Court Department on August 22, 2014.
The cases were tried before Daniel M.
The Supreme Judicial Court granted an
application for direct appellate review.
David Rassoul Rangaviz, Committee for
Public Counsel Services, for the defendant.
Nathaniel R. Beaudoin, Assistant District
Attorney, for the Commonwealth.
GANTS, C.J. A Superior Court jury found the defendant,
Angel Alvarez, guilty on indictments charging three counts of rape of a child
and one count of indecent assault and battery upon a child. The defendant presents three claims of error
on appeal: first, that the prosecutor
misstated important evidence in closing argument; second, that the judge erred
by admitting expert testimony from the treating physician of the victim; and
third, that the judge's instructions unfairly limited the jury's consideration
of a defense based on the inadequacy of the police investigation, known as a
Bowden defense. See Commonwealth v. Bowden,
379 Mass. 472, 485-486 (1980). We conclude
that the prosecutor's closing argument was prejudicial error, where she told
the jury of critical corroborative evidence that was not presented at
trial. We therefore vacate the
defendant's convictions and remand the case to the Superior Court for a new
trial. We address the defendant's other
two claims of error because they are likely to recur at a new trial. We conclude that the judge did not abuse his
discretion in admitting the expert opinion of the treating physician where it
could not reasonably be understood by the jury as implicitly vouching for the
complainant's credibility. We also
conclude that the judge did not unfairly limit the jury's consideration of the
Bowden defense by instructing the jury to decide the case based solely on the
Background. The strength of the Commonwealth's evidence
in this case rested on the credibility of Camila,  a twelve year old girl
who recounted acts of sexual abuse by the defendant that had allegedly occurred
on various occasions when she was between the ages of six and nine. The defendant is Camila's godfather, and is
married to Camila's aunt; Camila thinks of the defendant as her uncle and
refers to him as "tio."
When Camila was six years old, the
defendant and several relatives were at her house for a party. The defendant asked her to come with him to
pick up her cousin to bring back to the party.
Camila refused because she was having fun. The defendant "begg[ed]" Camila's
mother for Camila to accompany him and her mother agreed. The defendant drove to his house and told
Camila he needed something from inside.
Camila wanted to stay in the vehicle, but the defendant insisted that
she come inside the house. As the
defendant looked for something, Camila sat on an air mattress in one of the
bedrooms. The defendant walked in and
took off his pants and underwear. He
pulled down Camila's skirt and underwear.
He laid down on the bed and "put [Camila] on top of him" and
"his penis touched [her] vagina."
The sexual assault lasted approximately one minute; the defendant then
went to the bathroom. Camila testified
that her vagina felt "sticky," "wet, and disgusting."
The defendant and Camila left the house
and drove to pick up her cousin. On the
way, Camila told the defendant that her vagina was hurting. The defendant was "surprised" and
asked "why it was hurting."
She said that she did not know why she was in pain. The defendant told her to not tell her
mother. After picking up Camila's cousin
the defendant drove back to Camila's house.
Camila testified that, once she was home,
she felt "wet and sticky and gross," and asked her mother if she
could shower. She ultimately did not
shower again because she had showered approximately one hour before leaving the
house; instead, she played with her cousins.
The defendant worked as a taxicab driver
and would sometimes pick up Camila from school in a taxicab. On four to six occasions, when Camila was six
or seven years old, the defendant drove her to a fast food restaurant and
parked the taxicab behind the restaurant.
There, he would place his hand under Camila's pants and underwear and
into her vagina.
When Camila was six or seven years old,
she was in a hallway in the defendant's apartment, waiting for him to drive her
home for a family event. Camila's aunt
was in another room getting ready. The
defendant walked into the hallway, pulled down his pants and underwear, and put
his penis in Camila's mouth. The
defendant told her to "suck it and do it." After approximately one minute, Camila pushed
the defendant away.
When Camila was approximately eight years
old, the defendant on two separate occasions stood behind her in the same
hallway and rubbed his penis on her buttocks.
On another occasion, when she and the defendant's niece were both
sleeping at his house on different couches in the same room, the defendant put
his hand under Camila's blanket and inside her vagina. Camila woke up, said "[o]w," and
pushed him away.
Every time Camila slept at the defendant's
house, he tried to assault her. She
would respond by pushing and kicking him, and the defendant would remain quiet
and walk out of the room.
When Camila was nine years old, soon after
the assault on the couch, she was home, celebrating New Year's Eve with the
defendant's niece. The defendant's niece
wanted Camila to sleep at the defendant's house, but Camila did not want
to. The defendant "kept
begging" Camila's mother to allow Camila to sleep over until she
acquiesced. Once at the defendant's
house, Camila said she was hungry and asked the defendant for food. After the defendant told her he had no food
and no money for food, Camila said, "I just want to go home, I want to go
home." The defendant
"screamed" at her, "Just go home, then, go home." The defendant's niece drove Camila to a fast
food restaurant and then drove her home.
Approximately two weeks later, Camila was
talking with her mother and one of her sisters.
Someone mentioned the defendant, and Camila started crying. After her mother and sister asked why she was
crying, Camila disclosed that the defendant had assaulted her multiple times.
Soon after disclosing that the defendant
had been assaulting her, Camila was examined by Dr. Heather C. Forkey, a
pediatrician who specialized in caring for children who have been victims of
abuse. Dr. Forkey testified at trial
that Camila did not exhibit or report any of the common behavioral symptoms of
abuse -- including nightmares, bed-wetting, difficulty in school, and running
away from home. She also testified that
Camila's genital examination was "normal" for a nine year old girl,
and that there were no signs of genital injury.
When the prosecutor asked Dr. Forkey to offer an expert opinion as to
whether "it is or is not common to find physical injuries during the
genital exam of someone that has been sexually abused," the defendant
objected. Dr. Forkey answered,
"It's very uncommon," before the judge sustained the objection on the
grounds that the question "stray[ed] too close to the credibility
component of the case." Mistakenly
believing that Dr. Forkey had not answered the question, the judge denied the
defendant's motion to strike any response to the question. At the conclusion of her direct testimony,
without objection, Dr. Forkey testified that "[t]he absence of physical
trauma is not inconsistent with abuse."
When the defendant was interviewed by the
police about these allegations, he admitted that he had spent time with Camila
"almost every day," that she would "always hang out" with
him and "always call" him, but he insisted that he had never touched
her in a sexual manner. When asked by
the police if Camila had ever "come on" to him, he stated that she
never had, and he denied having "any feelings like that towards
her." He declared, "I [have] always
been good to this family; I [have] never hurt [them]." When asked why Camila would say that he
abused her if it were not true, he answered, "I don't know." When the interrogating police officer falsely
told the defendant that she knew that he had kept photographs of young girls on
his cellular telephone, thinking that this "bluff" would cause the
defendant to confess, he adamantly denied ever having taken such photographs or
keeping any on his cellular telephone.
There was no evidence at trial that the defendant possessed any child
pornography or photographs of children, and no evidence of bad acts towards any
The defendant appealed his convictions,
and we granted his application for direct appellate review.
Prosecutor's closing argument. As
noted, Camila testified that, when she was six years old, after the first
alleged sexual abuse incident with the defendant, she "felt wet and
disgusting" because of a "sticky" substance around her
vagina. She also testified that, when
she was nine years old and told her mother and sister about her sexual abuse,
she spoke of this aspect of the incident and said: "I told them how I felt gross and wet;
that's why I wanted to take the shower."
This was the only sexual incident in which there was any indication that
the defendant had ejaculated, so corroboration from a source other than Camila
that she felt "wet and sticky" would strongly corroborate her
testimony regarding that incident. The
prosecutor recognized the importance of this corroborative evidence by telling
the jury during her opening statement that Camila would testify that, after she
returned home and told her mother that she needed to "take a tub or a
shower," "[h]er mom said, 'Why?
You just took one before you left, a few hours ago.'" However, when Camila testified, she testified
only that she had asked her mother whether she could take a shower, but that
she did not shower because she had taken one an hour before she had left
home. She was not asked what her mother
said in response to her desire to take a shower, and did not testify as to any
statement made by her mother regarding that incident.
When Camila's mother testified, the
prosecutor did not ask about this incident; the mother said nothing about
Camila asking to "take a tub or a shower," or her saying she felt
"wet," "disgusting," or "sticky" when she came
home. On cross-examination, defense
counsel asked Camila's mother to read the police report reflecting what she had
told the detective after Camila's first complaint regarding this particular
incident, and the following dialogue ensued:
Q.: "And . . . you told the detective about
the first incident that [Camila] told you about?"
Q.: "And that's when [the defendant] was at
your house, and was supposed to go pick up some other cousins?"
Q.: "And you told the detective that he
asked if he could take [Camila]?"
Q.: "And she asked you, 'Mommy, can I go
with tio to pick up the kids'?"
Q.: "And you said 'Yes; go ahead'?"
Q.: "And when she got home that day, she
didn't tell you that [the defendant had] hurt her?"
Q.: "She didn't tell you that she didn't
want to see him [anymore]?"
Q.: "And she wanted to play with the other
kids that were around?"
A.: "No, because there wasn't anybody."
Q.: "There were no kids around when she came
home that first day?"
A.: "There weren't children."
Q.: "Who was around?"
A.: "Us -- the same people as always. He went to go pick up the girls, but I never
saw the girls."
Consequently, there was no testimony
elicited at trial, either from Camila or her mother, regarding what the mother
had said when Camila returned home from that incident, and no corroboration by
the mother that Camila wanted to clean herself when she returned home that
day. However, during closing argument,
the prosecutor, in answer to defense counsel's argument that the case rested
solely on the words of Camila, said:
Commonwealth submits that's not true.
You have some corroboration . . .
of [Camila's] word in other forms. You
have her mom saying . . . she told you
how that first time she came home and asked to take a bath, because she felt
disgusting? Mom told you, 'She did come
home one day and ask to take a bath, and I thought it was weird, because she
had taken a bath that morning.' That's
Defense counsel objected at the end of the
prosecutor's closing argument, informing the judge that there was no evidence
that the mother provided any corroboration of Camila's testimony that she told
her mother she needed to bathe. Neither
the prosecutor nor the judge recalled whether the mother had offered this
testimony, and defense counsel herself said that she might have been mistaken
about it. The judge refused to give any
curative instruction. Instead, the judge
told the jury during his instructions that they are "the sole and
exclusive judges of the facts," and that "opening statements and the
closing arguments of the lawyers are not a substitute for the evidence,"
but are simply intended to assist the jury in understanding the evidence.
Under our case law, "[w]hile
prosecutors are entitled to argue 'forcefully for the defendant's conviction,'
closing arguments must be limited to facts in evidence and the fair inferences
that may be drawn from those facts."
Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017), quoting
Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). See Commonwealth v. Silva-Santiago, 453 Mass.
782, 807 (2009). Where, as here, the
prosecutor argued facts in closing argument that find no support in the
evidence at trial and where that error is preserved by a timely objection, the
error is nonprejudicial only if we are "sure that the error did not
influence the jury, or had but very slight effect." Commonwealth v. Hrabak, 440 Mass. 650, 656
(2004), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). "Where it cannot be said with assurance
that the improper closing argument could not have influenced the jury to
convict, the judgment of conviction cannot be preserved." Commonwealth v. Beaudry, 445 Mass. 577, 586
(2005), quoting Commonwealth v. Kelly, 417 Mass. 266, 272 (1994). See also Commonwealth v. Mountry, 463 Mass.
80, 92 (2012).
We consider four factors in determining
whether an error made during closing argument is prejudicial: "(1) whether the defendant seasonably
objected; (2) whether the error was limited to collateral issues or went to the
heart of the case; (3) what specific or general instructions the judge gave the
jury which may have mitigated the mistake; and (4) whether the error, in the
circumstances, possibly made a difference in the jury's conclusions." Silva-Santiago, 453 Mass. at 807, quoting
Commonwealth v. Perez, 444 Mass. 143, 151 (2005). Here, the defendant objected in a timely
manner to the factually incorrect statement in the prosecutor's closing
argument. The error went to the
"heart of the case," that is, the credibility of Camila. See Commonwealth v. Pearce, 427 Mass. 642,
645 (1998) (victim's credibility went to heart of case where Commonwealth's
evidence "consisted primarily of the victim's testimony and four fresh
complaint witnesses"). And the
judge gave only the most general instructions to mitigate the mistake. In these
circumstances, we cannot say with assurance that this error could not have
influenced the jury's verdict. 
The judge instructed the jury before
closing arguments that a "closing statement is not itself evidence, nor is
it a substitute for the evidence. The
evidence in this case is closed."
But we cannot be confident that the jury recognized that the prosecutor
erred and that the mother never gave this testimony, where (1) the prosecutor
quoted the mother's question to Camila about Camila's need to bathe in her
opening statement on the first day of trial; (2) the prosecutor quoted the
mother again about how "weird" it was that Camila wanted to take a
bath after having just taken a bath earlier that morning in her closing
argument on the second day of trial; (3) neither the judge nor the prosecutor
could recall whether the mother had given this testimony even after defense
counsel told them it was never in evidence; (4) defense counsel did not have any
opportunity to tell the jury that there was no such evidence because she had
already given her closing argument; and (5) nothing the judge told the jury
meaningfully cautioned them to be wary in considering the prosecutor's closing
argument. And if the jury were under the
false impression that Camila's mother had testified that she thought it
"weird" that Camila wanted to take a bath, we cannot say with
assurance that this could not have influenced their verdict. The prosecutor thought this supposed corroboration
to be so important that she mentioned it both in her opening statement and in
her closing argument, and discussed it first when she spoke about the
corroboration of Camila's testimony. And
it would have been powerful corroboration of Camila's testimony, had it
actually been in evidence, because it would have corroborated that Camila
immediately after the incident said she felt "wet" and
"sticky" after the defendant ejaculated on her.
In fact, apart from the first complaint
evidence, which itself simply reported what Camila had said to her mother when
she revealed the sexual abuse, the prosecutor's imagined testimony of the
mother that Camila said she wanted to bathe or shower and that the mother
thought this "weird" because Camila had recently bathed, was the only
significant corroboration of Camila's testimony. The other claimed corroboration that the
prosecutor spoke of in her closing argument amounted to almost nothing.
The prosecutor argued three other sources
of supposed corroboration. First, she
argued that Camila's statement to her mother that she no longer wanted the
defendant to pick her up from school was corroborative of her allegations of
his sexual abuse. But the evidence at
trial, offered by both Camila and her mother, was that the defendant worked as
a taxicab driver during that time period and often would not drive Camila home
from school until after he had finished his work day, which sometimes did not
end until 10 P.M. Camila's testimony at
trial was that she asked her mother to pick her up from school because
"[the defendant] takes a long time to bring me back home."
Second, the prosecutor argued that it was
corroborative that Camila wanted to come home from the defendant's home in the
middle of the night on New Year's Eve.
But the evidence at trial was that Camila's mother had rented a hall on
New Year's Eve day to enable her entire family to get together, including the
defendant, his sister, and his two nieces who were visiting from New York. Camila testified that the defendant wanted
her to come to his home to spend time with his nieces, so she went to his home
with a friend and the friend's cousin at approximately 12:30 A.M. As earlier noted, when she arrived, they were
hungry, but the defendant said that he had no money and no food. Camila said that she wanted to go home, and
the defendant "screamed" at her, "Just go home, then, go
home." Camila told her mother that
she wanted to come home and, after the defendant's niece took Camila to eat at
a fast food restaurant, her cousin drove her home around 1:30 A.M. There was no evidence that the defendant
touched her that night, or attempted to.
Under these circumstances, it is hardly surprising or noteworthy that a
nine year old child, especially one who testified that she gets homesick and
prefers to stay at home with her mother, would want to go home.
Third, the prosecutor argued in closing,
"You have [the defendant] himself telling you, 'She came to my house for
sleep-overs. I picked her up at
school. We played all these games.'
That's all corroboration." But all
those facts are equally corroborative of a healthy relationship between a child
and her godfather, whom she considers her uncle; accordingly, they lend no
credence to Camila's testimony regarding sexual abuse.
We have found prejudicial error in
comparable cases, despite the seriousness of the alleged crime. In Commonwealth v. Loguidice, 420 Mass. 453,
453-454 (1995), the defendant was charged, and subsequently convicted of, two
counts of forcible rape of a four year old child. The prosecutor argued during closing that the
child victim had observed the defendant masturbate and ejaculate, and that the
persons who lived in the apartment near where the incidents allegedly occurred
were at church on the morning of the day of the incidents; but there was no
evidence in support of either assertion.
Id. at 454-455. We noted that
where "an objection is made to a prosecutor's error, the judge summarily
rejects the challenge, and thus there is no curative jury instruction, an
appellate court should proceed with caution in considering whether it is likely
that an error made no difference in the jury's result." Id. at 456.
In reversing the judgments, we concluded:
"This was a
close case for the jury. Success for the
Commonwealth depended completely on the credibility of the child. In such an instance, errors in a prosecutor's
closing argument describing a circumstance that made the defendant's commission
of the crimes more plausible (the [neighbors'] absence) and putting the
defendant in an unfavorable light (masturbation in front of the child) should
not be viewed collectively as unlikely to have affected the jury's
Id. at 457.
In Commonwealth v. Beaudry, 445 Mass.
at 580, 586, we reversed the defendant's
convictions of rape of a child where the prosecutor, despite the absence of
expert testimony, declared during closing argument that a nine year old child
would not have known about the specific types of sexual acts alleged unless she
had experienced them. We determined that
where, despite a timely objection, the judge did not cure the improprieties
"by appropriate and timely" instructions, and where "[t]he
verdicts rested solely on the jury's believing [the alleged victim]"
because "[t]here was no physical evidence or testimony from eyewitnesses
to the abuse," id. at 585, "[w]e are unable to say that we are
assured that the improper remark had little or no effect on the jury's
deliberations." Id. at 586.
In Commonwealth v. Silva-Santiago, 453 Mass.
at 806-807, the prosecutor argued in closing that an eyewitness had seen the
defendant at the approximate location where the shooting occurred when, in
fact, the eyewitness testified that she had seen the defendant there roughly
ten to fifteen minutes before the shooting and had not seen him there at the
time of the shooting. Where this
witness's testimony was presented to corroborate the "photospread"
identification of the defendant as the shooter by other eyewitnesses, and where
the prosecutor, by mischaracterizing this part of her testimony,
"transformed into inculpatory testimony the exculpatory part of [the
witness's] testimony," we concluded that "[w]e cannot say with
assurance that the closing argument errors, considered together in the totality
of the circumstances, could not have influenced the jury to convict." Id. at 788, 808. See also Commonwealth v. Misquina, 82 Mass.
App. Ct. 204, 205-208 (2012) (reversing indecent assault and battery conviction
for prejudicial error where prosecutor argued in closing that victim had
recounted same description of crime to four persons, but where there was
evidence of her telling only one person).
For the reasons stated, we conclude that,
where the convictions in this case rested solely on the credibility of a young
child, and where the prosecutor, in both her opening statement and closing
argument, told the jury about key corroborative testimony of the mother that
the prosecutor did not attempt to elicit during trial and that was not
otherwise in evidence, and where a timely objection by defense counsel did not
yield an effective curative instruction, we must reverse the convictions and
remand the case for a new trial because we cannot say with assurance that the
prosecutor's improper closing argument could not have influenced the jury to
convict.  
Expert testimony of treating physician.
The defendant invites us to hold that "[n]o individual should ever
be permitted to testify in his or her capacity as both a treating doctor and an
expert on the subject of child sexual abuse," because such testimony
inevitably has the effect on a jury of improperly bolstering the victim's
credibility. He therefore claims that
the judge committed reversible error by not striking Dr. Forkey's trial
testimony that it is "very uncommon" to find physical injury on the
genitals of victims of sexual abuse, and by admitting in evidence her opinion
that "[t]he absence of physical trauma is not inconsistent with
abuse." Where this issue is likely
to recur at a retrial of this case, we address the defendant's claim of
error. See Commonwealth v. Tanso, 411
Mass. 640, 651, cert. denied, 505 U.S. 1221 (1992).
Expert opinion testimony is appropriate
and admissible where an expert's "specialized knowledge would be helpful to
the jury." Commonwealth v. Holley,
476 Mass. 114, 125 (2016), quoting Commonwealth v. Pytou Heang, 458 Mass. 827,
844 (2011). See Mass. G. Evid.
§ 702(a) (2018). "Under this
principle, we have held that testimony on the general behavioral characteristics
of sexually abused children may properly be the subject of expert testimony
because behavioral and emotional characteristics common to these victims are
'beyond the jury's common knowledge and may aid them in reaching a
decision." Commonwealth v. Federico,
425 Mass. 844, 847-848 (1997), quoting Commonwealth v. Colin C., 419 Mass. 54,
60 (1994). See, e.g., Commonwealth v.
Day, 409 Mass. 719, 724 (1991) (expert testimony concerning "battered
child syndrome" admissible because condition is not matter of common
knowledge); Commonwealth v. Mamay, 407 Mass. 412, 421 (1990) (expert testimony
regarding rape trauma syndrome admissible because syndrome is "beyond the
jury's common knowledge").
Such expert testimony "must, however,
be confined to a description of the general or typical characteristics shared
by child victims of sexual abuse."
Federico, 425 Mass. at 848. An
expert witness on sexually abused children "may not 'directly opine on
whether the victim was in fact subject to sexual abuse,' or directly refer or
compare the behavior of the complainant to general behavioral characteristics
of sexually abused children."
Commonwealth v. Quinn, 469 Mass. 641, 647 (2014), quoting Federico,
supra at 849. See Commonwealth v.
Trowbridge, 419 Mass. 750, 759 (1995) ("[a]lthough expert testimony on the
general behavioral characteristics of sexually abused children is permissible,
an expert may not refer or compare the child to those general
an expert may not opine that the child's behavior or experience is consistent
with the typical behavior or experience of sexually abused children." Quinn, supra.
"Even where an expert does not directly compare the behavior of the
complainant to that typical of sexually abused children, the expert's testimony
may be inadmissible where a reasonable jury would think the expert was
implicitly vouching for the credibility of the complainant." Id., and cases cited.
"The risk of improper comparisons
between any general behavioral characteristics of sexually abused children and
a particular complaining child witness is most acute when the expert witness
has examined or treated the child.
Testimony on the general characteristics of sexually abused children by
such experts has been disallowed."
Federico, supra, and cases cited.
We have often warned of the danger of implicit vouching for the
credibility of the complainant where a treating physician or psychologist in a
child sexual abuse case testifies as an expert witness, see Quinn, 469 Mass. at
647-648, and cases cited, and at times have concluded that the implicit
vouching arising from such testimony was prejudicial error. See id. at 650. See also Colin C., 419 Mass. at 60-61 (judge
committed reversible error by allowing child's treating physician to give
opinion testimony that child had been sexually abused); Commonwealth v.
Brouillard, 40 Mass. App. Ct. 448, 451 (1996), overruled on another ground by
Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006)
(reversal required where child complainants' treating therapist
"juxtaposed discussion of general syndromes with specific descriptions of
and opinions about the complainants").
But we have not yet imposed the blanket prohibition proposed by the
defendant that would bar a treating physician from offering any expert opinion
in all child sexual abuse cases. We
decline to do so here, given the nature of the opinion offered by the treating
If, for example, Dr. Forkey had testified
that, as a treating physician, she had observed Camila display various
emotional, psychological, or behavioral characteristics, and then offered an
expert opinion about the emotional, psychological, or behavioral
characteristics of child victims of sexual abuse, we would likely conclude,
given the acute risk of implicit vouching, that it was an abuse of discretion
for a judge to have permitted such opinion testimony. See Quinn, 469 Mass. at 643, 644-646, 650
(expert opinion testimony was improper vouching for victim's credibility where licensed
clinical social worker testified about victim's particular emotional problems
and subsequently opined about similar or typical behavioral characteristics of
child sexual abuse victims). And if, for
example, Dr. Forkey had observed genital injuries during her examination of
Camila, and then offered an expert opinion that Camila's genital injuries are
consistent with sexual abuse, we also would have likely concluded that the risk
of implicit vouching was too great to permit the treating physician to offer
such an opinion. See Trowbridge, 419
Mass. at 760 (treating physician's testimony came "impermissibly
close" to endorsing child's credibility when she "testified that the
symptoms and physical condition of the child were consistent with the type of
nonviolent sexual abuse that the child alleged in this case"). But where, as here, the treating physician
offered the expert opinion that it is "very uncommon" to find
physical injury on the genitals of victims of sexual abuse and that "[t]he
absence of physical trauma is not inconsistent with abuse," and where the
prosecutor made clear in eliciting these opinions that her questions were not
focused on the complainant, but were "general questions about a patient
that would come in and see you, another child," we conclude that the risk
of implicit vouching is so small that the judge did not abuse his discretion by
not striking these opinions. 
We have recognized on prior occasions that
a medical expert may be able to assist the jury by informing them that the
absence of evidence of physical injury "does not necessarily lead to the
medical conclusion that the child was not abused," Federico, 425 Mass. at
851, because "[t]he jury may be under the mistaken understanding that
certain types of sexual abuse always or nearly always causes physical injury or
scarring in the victim." Id. at 851
n.13. Where such opinion testimony is
admissible and where its probative value is to negate the inaccurate inference
that a child who was sexually abused would have sustained some genital injury,
we do not require the Commonwealth to call a nontreating physician expert to
offer such an opinion. See Commonwealth
v. Quincy Q., 434 Mass. 859, 871-872 (2001) (judge did not abuse discretion in
admitting testimony of treating
pediatrician that child's examination was "completely normal" and
that "majority of girls examined for possible sexual abuse have 'normal'
findings [i.e., no recognizable traces of physical contact]"). As in Quincy Q., Dr. Forkey's "testimony
'did no more than give the jury information concerning the medical
interpretation of an absence of any physical evidence of penetration; namely,
such a finding does not exclude that sexual abuse occurred.'" Id. at 872, quoting Commonwealth v. Colon, 49
Mass. App. Ct. 289, 293 (2000). Such
testimony does not implicitly comment on the complainant's truthfulness; it
says nothing more than that no inference can be drawn from the absence of
genital injury. Therefore, we conclude
that the judge did not abuse his discretion in not striking Dr. Forkey's
Jury instructions. A detective
who investigated Camila's allegations against the defendant interviewed Camila,
the defendant, Camila's mother, and Camila's sister, who was present when
Camila first disclosed that she had been assaulted. The defendant contends that the detective's
investigation was inadequate and, during his cross-examination of the detective
at trial, he focused on the purported deficiencies in her investigation.  The defendant contends that the judge
unfairly limited the jury's consideration of his Bowden defense by instructing
the jury to decide the case based solely on the evidence. Because this issue may arise again at a
retrial, we address it now. See Tanso,
411 Mass. at 651.
We permit a defendant to elicit evidence
of the purported inadequacy of the police investigation because "the
inference that may be drawn from an inadequate police investigation is that the
evidence at trial may be inadequate or unreliable because the police failed to
conduct the scientific tests or to pursue leads that a reasonable police
investigation would have conducted or investigated, and these tests or
investigation reasonably may have led to significant evidence of the
defendant's guilt or innocence."
Silva-Santiago, 453 Mass. at 801.
See Mass. G. Evid. § 1107(a) (2018) (evidence of inadequate police
investigation may be admissible).
"A jury may find a reasonable doubt if they conclude that the
investigation was careless, incomplete, or so focused on the defendant that it
ignored leads that may have suggested other culprits." Silva-Santiago, supra. See Commonwealth v. Phinney, 446 Mass. 155,
165 (2006), S.C., 448 Mass. 621 (2007) ("Defendants have the right to base
their defense on the failure of police adequately to investigate a murder in
order to raise the issue of reasonable doubt as to the defendant's
guilt"); Commonwealth v. Bowden, 379 Mass. at 486 ("[t]he fact that
certain tests were not conducted or certain police procedures not followed
could raise a reasonable doubt as to the defendant's guilt in the minds of the
We have long held that defense counsel in
closing argument is entitled to argue that the jury should find the defendant
not guilty because of the inadequacy of a police investigation. See, e.g., Commonwealth v. Fitzpatrick, 463
Mass. 581, 597-598 (2012). Here, in
closing argument, defense counsel characterized the police investigation as
"offensive" and asked two rhetorical questions:
"A person is
charged with one of the most horrible things you can possibly be accused of,
and no one in the family is interviewed, spoken to? If we're supposed to trust the police to get
to the bottom of something and to be just as concerned with confirming that
nothing happened, and maybe clearing someone, wouldn't you hope they would
speak to a couple [of] witnesses?"
The judge declined the defendant's request
for a Bowden instruction. The defendant
does not challenge the judge's declination, recognizing that it is within the
discretion of the judge whether to provide the jury with a Bowden instruction
that explains to the jury the inferences they may draw if they were to find the
investigation inadequate. See, e.g.,
Commonwealth v. Durand, 475 Mass. 657, 674 (2016), cert. denied, 138 S. Ct. 259
(2017), quoting Commonwealth v. Lao, 460 Mass. 12, 23 (2011) ("a judge is
not required to instruct on the claimed inadequacy of a police
investigation. 'Bowden simply holds that
a judge may not remove the issue from the jury's consideration'");
Commonwealth v. Williams, 439 Mass. 678, 687 (2003) (declining to give Bowden
instruction not error "because the giving of such an instruction is never
required"). See also Mass. G. Evid.
§ 1107(b) (2018) (giving of Bowden instruction is discretionary).
Instead, the defendant claims that the
judge erred in giving the jury the following facially proper instruction
because, in the context of the evidence in this case, the instruction unfairly
limited the jury's full consideration of the Bowden evidence and, effectively,
negated the defendant's Bowden argument:
"You are not
to decide this case based on what you may have read or heard outside of this
courtroom. You are not to engage in any
guesswork about any unanswered questions that remain in your mind. You should not consider anything I have said
or done during the trial, in ruling on objections, or in comments to the
attorneys, or in questions to witnesses, or in setting forth the law in these
instructions, as any indication of my opinion as to how you should decide the
case. In short, you are to confine your
deliberations to the evidence and nothing but the evidence."
"You are to
decide what the facts are solely from the evidence admitted in this case, and
not from suspicion or conjecture. The
evidence consists of the testimony of witnesses as you recall it, any documents
or other things that were received into evidence as exhibits. You will have all of the exhibits with you in
the jury room. You alone will decide the
weight -- that is, the value -- that they deserve to receive in helping you
make your ultimate judgment about whether the Commonwealth has proved its
case" (emphases added by defendant).
We recognize that, in some circumstances,
a facially proper jury instruction that the jury should decide the case based
on the evidence rather than guesswork or conjecture may reasonably be
understood by the jury to negate or undercut a defendant's proper Bowden
argument, such as where the judge interrupts defense counsel's Bowden argument to
give the instruction, or where the judge furnishes this instruction in response
to a question from the jury about a Bowden issue. See, e.g., Commonwealth v. Gilmore, 399 Mass.
741, 746 (1987) ("The judge twice interrupted defense counsel's closing
argument to instruct the jury that they were to consider only 'the evidence
introduced in fact in this case.' Not
only did the judge prevent defense counsel from pursuing a permissible line of
argument, but he . . . in effect instructed the jury to disregard defense
counsel's immediately preceding argument"); Commonwealth v. Remedor, 52
Mass. App. Ct. 694, 700 (2001) ("[t]he judge's response to the jury's
question, refusing to answer the question concerning admissibility and
instructing the jury to confine their consideration to the evidence that was
presented, in context could only have been understood by the jury as a ruling
that the police officers' failure to record the transaction or to photograph
the taxicab driver or to record his license and taxicab numbers, were not an
appropriate ground upon which to build a defense and were not to be considered
Here, however, defense counsel proceeded
through her closing argument uninterrupted, and the judge's instructions were
not issued in response to any specific questions from the jury. Rather, this instruction constituted a small
part of the judge's final jury instructions that were given after the attorneys
had presented their respective closing arguments. In light of the context in which these instructions
were given, there is nothing to suggest that these instructions "may have
been construed by the jury as requiring them to reject the [Bowden defense]
suggested by defense counsel."
Commonwealth v. Smith, 49 Mass. App. Ct. 827, 832 (2000). Where a judge, in his or her final jury
instructions, tells the jury to decide the case based solely on the evidence
rather than on guesswork or conjecture, it is unlikely that the jury will hear
that instruction as a derogatory comment on the defendant's Bowden
argument. Moreover, the permissible
inference from "police failure to take certain investigatory steps, as it
relates to the reliability of the Commonwealth's case," rests on evidence
actually presented regarding the inadequacy of the police investigation, and
"is not intended to permit jurors to speculate about the results of
investigative steps not taken."
Commonwealth v. Tolan, 453 Mass. 634, 652 (2009). On retrial, however, if the judge decides not
to give a Bowden instruction as part of the final jury instructions, it would
be prudent to omit from the instructions the sentence, "You are not to
engage in any guesswork about any unanswered questions that remain in your
mind," to avoid the risk that the jury may interpret this sentence as undercutting
the defendant's Bowden argument.
Conclusion. For the reasons stated above, we vacate the
defendant's convictions and remand the case to the Superior Court for a new
LOWY, J. (concurring, with whom Lenk and
Budd, JJ., join). I agree with the court
that the prosecutor's closing argument constituted prejudicial error, requiring
reversal of the defendant's conviction.
I do so not because this is a sexual assault case, nor because the
conviction rests on the testimony of a young child. I do so because jurors crave corroboration,
and the prosecutor's closing argument included powerful statements
corroborating the child's testimony that were not offered in evidence at trial. Specifically, the prosecutor inaccurately
argued that the victim's mother had testified that, upon returning from
spending time with the defendant, the victim told her mother that she felt
"disgusting" and wanted to take a bath. Although it appears that the mother would
have so testified had she been asked, the prosecutor did not elicit this
testimony on direct examination. I
cannot say with assurance that this remark in the prosecutor's closing,
referencing a statement not admitted in evidence, could not have influenced the
I write separately because I agree with
many of the concerns raised by Justice Cypher in her dissent. I believe that, unfortunately, little has
changed since we noted in Commonwealth v. King, 445 Mass 217, 238-239 (2005),
cert. denied, 546 U.S. 1216 (2006) that:
may continue to harbor prejudicial misperceptions about the nature of rape and
rape allegations, including that complainants who wear revealing clothing,
consume drugs or alcohol, or have unorthodox or promiscuous lifestyles cannot
be 'real' victims of rape; that forced sex by a spouse or a past partner does
not constitute 'real' rape; and that false accusations of sexual assault are
more frequent than those of other violent crimes."
The dissent's clarion call cautioning
trial and appellate courts to evaluate the testimony of sexual assault victims
no more critically than victims or witnesses of other crimes is well
taken. The mistreatment of victims of
sexual assault is still present in many aspects of our society today. It is imperative that nothing in our decision
today be interpreted as endorsing antiquated notions of what makes an alleged
victim of rape credible.
Our society's normative values concerning
sexual relationships have evolved and are varied and complex. All too often, victims of sexual assault are
forced to endure further trauma in their pursuit of justice. This trauma goes beyond having to testify
about the crime committed. A victim of
sexual assault is often scrutinized in a manner that is far more pervasive than
victims of almost any other crime. For
the victim of a robbery, their privileged medical or psychiatric records are
not usually subject to scrutiny; their previous personal relationships,
conduct, and the most intimate details of their life are not often topics of
cross-examination. However, this is the
reality for many victims of sexual assault; they are treated with more distrust
than victims of other crimes. The
dissent's emphasis on some of the troubling aspects of sexual assault
prosecutions -- a lingering and unacceptable vestige of our society's history
of gender inequality –- raises concerns that we must not ignore and that should
be kept firmly in mind.
CYPHER, J. (dissenting, with whom Kafker,
J., joins). This case involves a
prosecutorial error, preserved by objection, and calls upon the court to
determine that error's impact. When
assessing such an error's effect, the court frequently evaluates the strength
of the Commonwealth's case, absent the error, to determine whether "the
error did not influence the jury, or had but very slight effect." Commonwealth v. Hrabak, 440 Mass. 650, 656
(2004), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). In cases such as this, where the victim of
the alleged crime testifies, the court naturally evaluates her testimony when
considering whether the Commonwealth's case was independently strong enough
without the prosecutor's mistake. I
disagree with the court about the importance of the undisputed, consistent, and
clear testimony of a survivor of sexual assault and would conclude that a
prosecutorial error, even if preserved, does not necessarily erase the merits
of a strong case. Because a long line of
cases arguably evaluates the testimony of survivors of sexual assault more
critically than testimony of victims and witnesses of other kinds of crimes,
which does a disservice to all future victims whose interests are represented
by imperfect prosecutors,  I dissent.
Perhaps the ease with which courts have
dismissed the value of sexual assault victim testimony has its roots in Sir
Matthew Hale's Seventeenth Century adage, describing rape as "an
accusation easily to be made and hard to be proved, and harder to be defended
by the party accused, tho ever so innocent." See Anderson, The Legacy of the Prompt
Complaint Requirement, Corroboration Requirement, and Cautionary Instructions
on Campus Sexual Assault, 84 B.U. L. Rev. 945, 948 (2004). See id. at 949 ("Many jurisdictions
responded to Hale's admonition by requiring courts to issue instructions
cautioning juries to regard the complainant's testimony in rape cases with
particular suspicion"). Hale's
admonishment accompanied the "hue and cry" requirement, mandating
that courts credit a victim's complaint only if made immediately following an
assault. 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, 1041 (1991). Hale's words of caution about the testimony
of rape complainants were imported into the American legal system. Anderson, supra at 960. Every American jurisdiction previously
required evidence that the victim promptly reported the assault before
permitting a prosecution to proceed or upholding a conviction. DuBois, A Matter of Time: Evidence of a Victim's Prompt Complaint in
New York, 53 Brook. L. Rev. 1087 n.2 (1988).
See Commonwealth v. Izzo, 359 Mass. 39, 44 (1971) , quoting Glover v.
Callahan, 299 Mass. 55, 57 (1937) (Commonwealth has "duty" to
demonstrate victim expeditiously reported sexual assault because "where a
female witness testifies as to a rape or similar assault upon her the mere
absence of evidence of an earlier complaint discredits her. A legitimate argument against her credibility
may be made solely on the basis of the absence of evidence of such a
Massachusetts has since departed from some
of those troubling requirements of sexual assault prosecutions, see
Commonwealth v. King, 445 Mass. 217, 242 (2005), cert. denied, 546 U.S. 1216
(2006),  but remnants of these philosophies clearly survive. When evaluating the Commonwealth's evidence
in the face of an error in cases without sexual assault charges, our
jurisprudence frequently credits testimony of witnesses and victims. See Commonwealth v. Stevens, 379 Mass. 772,
774 (1980) (case against defendant for armed assault with intent to murder and
armed robbery, based on testimony of victim, was "strong");
Commonwealth v. Walker, 421 Mass. 90, 98-99 (1995) (affirming robbery
conviction despite multiple improper comments by judge and prosecutor because
Commonwealth made "strong" case where only evidence was victim's
testimony). See also Commonwealth v.
Barbosa, 463 Mass. 116, 118 (2012) (based in eyewitness testimony, case against
defendant for murder in first degree and multiple firearms offenses was strong,
despite all identifying witnesses being impeached with prior inconsistent
statements and judge erroneously admitting hearsay to corroborate testimony of
Commonwealth's witness); Commonwealth v. Rollins, 441 Mass. 114, 118-119 (2004)
(case against defendant for operating motor vehicle while intoxicated, where
Commonwealth introduced only testimony of police officer witnesses, was
strong). Yet when performing the same
analysis in cases of sexual assault, the testimony of victims appears to be
given comparably less weight. See
Commonwealth v. Beaudry, 445 Mass. 577, 585 (2005) (closing argument error in
child rape case was prejudicial where victim was only witness to abuse);
Hrabak, 440 Mass. at 656 (Commonwealth's case was not strong enough to withstand
error where six year old anal rape victim's testimony was only evidence);
Commonwealth v. Scheffer, 43 Mass. App. Ct. 398, 401 (1997) (reversing
conviction for rape of child where error "might loom less large in a case
where there was anatomical or percipient witness evidence [from other than the
purported victim] that made the government case of sexual abuse
overwhelming"); Commonwealth v. LaCaprucia, 41 Mass. App. Ct. 496, 502
(1996), S.C., 429 Mass. 440 (1999) (case against defendant in child sexual
assault case was not strong where there was limited physical evidence, so
victims' statements were central to Commonwealth's case). Cf. Commonwealth v. White, 475 Mass. 724, 740
(2016) (recognizing that corroboration requirement in G. L. c. 277,
§ 63, "sets a high bar for prosecuting sexual offenses against
children that are alleged to have occurred many years before"). See Raitt, Judging Children's Credibility --
Cracks in the Culture of Disbelief, or Business as Usual?, 13 New. Crim. L.
Rev. 735, 737 (2010) ("Concern over children's reliability as witnesses
dates back centuries, and this concern is compounded when the child is a
complainant of a sexual offense").
The court's conclusion is tinged with this legacy.
I would eschew the entrenched habits of
excess suspicion of rape victims and affirm this conviction.  When properly evaluating the value of the
victim's testimony, it is clear the error was not prejudicial. "[T]he prosecutor's improper statement
warrants reversal only if it prejudiced the defendant in light of the
prosecutor's entire argument, the trial testimony, and the judge's instructions
to the jury." Commonwealth v.
Burgos, 462 Mass. 53, 72, cert. denied, 568 U.S. 1072 (2012). Within that context, we also consider
"the persistence or flagrancy of the remarks." Commonwealth v. Clary, 388 Mass. 583, 590–591
(1983), quoting Commonwealth v. Dougan, 377 Mass. 303, 312 (1979). Approximately seven transcribed pages into
closing argument, the Commonwealth sought to remind the jury of testimony of
some sources of corroboration of the details surrounding the allegations of
assault. At that time, the prosecutor
told the jury that Camila's mother had remembered Camila coming home from being
out with the defendant and wanting to take a bath. Although Camila had testified to this, the
prosecutor had failed to elicit this testimony from Camila's mother.
This error, properly considered in its
context, "did not influence the jury, or had but very slight
effect." Hrabak, 440 Mass. at 656,
quoting Flebotte, 417 Mass. at 353. This
error was far from the persistent or flagrant comments that necessitate
upending a jury verdict. Camila's
testimony was strong evidence against the defendant and should be treated as
such. She described, in detail, each
incident of abuse.  Her testimony
alone was enough evidence to merit a conviction. The jury listened to all of her testimony,
just as they listened to the judge's repeated and clear instructions about
argument not being evidence. 
"[W]e must and do recognize that closing argument is identified as
argument, the jury understand that, instructions from the judge inform the
jury that closing argument is not evidence, and instructions may mitigate any
prejudice in the final argument."
Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). See Commonwealth v. Hammond, 477 Mass. 499,
507-508 (2017) (affirming convictions of raping three children, despite
prosecutor's two improper statements in closing argument, where judge gave
curative instructions when charging jury).
Moreover, the prosecutor's erroneous
statement was an insignificant portion of her closing argument, occupying a
mere five lines out of approximately nine transcribed pages. Compare Clary, 388 Mass. at 593 (reversing
where "a fact not proved directly or by fair inference . . . was used as a
focal point in the prosecutor's argument"), with Commonwealth v. Wood, 469
Mass. 266, 286 (2014) ("[W]e cannot say that the error, taken in context,
made a difference in the jury's conclusion.
It was a single statement made in the course of a lengthy closing
argument"). The prosecutor
discussed other evidence from Camila's mother's testimony corroborating that
the defendant would pick up Camila from school, but that she wanted that to
stop, and that she came home in the middle of the night on New Year's Eve.  The prosecutor also reminded the jury that
the defendant himself told police that Camila would sleep at his house and he
would pick her up from school, further verifying the contextual details of
Camila's testimony. Compare Commonwealth
v. Gomes, 443 Mass. 502, 510 (2005) ("improper subject of argument"
was "isolated" "slip of the tongue" and did not require
reversal), with Beaudry, 445 Mass. at 585-586 (prosecutor's comment that child
victim was credible because her sexual knowledge was inappropriate for her age
and must have been result of defendant's abuse was unsupported by record and
could have influenced jury's decision about all allegations). The court's focus on Camila not displaying the
behavioral characteristics of a "normal" child who has suffered abuse
creates a de facto corroboration requirement, necessitating a child without
physical symptoms or eyewitnesses (as already discussed, each is uncommon in
child sexual assault cases) to display enough emotional trauma to be
credible. Beyond the obvious issues with
demanding a certain type of behavior from victims of these crimes, this
requires a child to walk a tightrope of being behaviorally symptomatic enough
to be believed, but not too emotional so as to be deemed unreliable. See Commonwealth v. Quinn, 469 Mass. 641, 650
(2014) (vacating child rape conviction where "Commonwealth's case rested
almost entirely on the credibility of the emotionally troubled
victim"). See also Raitt, supra at
737 ("The concerns affecting children that cloud [child rape cases] and
evidence are very similar to the suspicion expressed toward all victims of
sexual assault, which is made explicit through expectations that the
'righteous' victim will be of impeccable character, make the complaint
promptly, exhibit tangible injuries, and provide a full and unswerving
account"). Even if the court's
devaluation of other sources of corroboration is accurate, this nonetheless
does nothing to minimize the strength of Camila's testimony as the core of the
Commonwealth's case. The Commonwealth
presented a case that was sturdy without the addition of the prosecutor's
inaccurate closing argument.
This case hews closely to a common pattern
of child sexual assault cases, where the assailant preys on the child in
secluded, controlled environments, leaving no other eyewitnesses to the actual
acts of abuse. See Buller, Fighting Rape
Culture with Noncorroboration Instructions, 53 Tulsa L. Rev. 1, 5 (2017) (large
majority of sexual assault cases have no third-party eyewitnesses); Walsh,
Jones, Cross, & Lippert, Prosecuting Child Sexual Abuse: The Importance of Evidence Type, 56 Crime
& Delinquency 436, 438 (2010) ("[c]hild sexual abuse is distinct from
other types of crimes because multiple forms of convincing evidence are often
lacking"). See also Beaudry, 445
Mass. at 585 (noting, in case without physical evidence or eyewitnesses,
"[a]s is often true in cases involving sexual abuse, the trial was a
battle of the credibility of the witnesses"). Where no physical evidence is available, 
it is the victim's testimony alone that stands as direct evidence of the
assault.  Camila's testimony, as the
only percipient witness to these crimes, deserves no less value than the testimony
of any other victim in a case not involving sexual assault.
Given the entirety of the evidence and the
minor role the prosecutor's misstatement played in closing argument, I conclude
that the error could not have influenced the jury's decision. I dissent. footnotes
 We use a pseudonym for the child.
 In Commonwealth v. Silva-Santiago, 453
Mass. 782, 808 (2009), as here, "[t]he only instruction the judge gave
that may have mitigated the error was her reminder to the jury in her final
instructions that 'the closing arguments of the lawyers are not a substitute
for the evidence. They are only intended
to assist you in understanding the evidence and the respective contentions of
the parties.'" We noted in that
case, "The judge did not focus on any statement in the prosecutor's
closing argument when she provided this guidance, so the jury were not warned
to be careful in comparing their memory of [the witness's] testimony with the
attorneys' characterization of it."
In Commonwealth v. Beaudry, 445 Mass. 577,
585 (2005), the judge told the jury in her final instructions not to speculate
about matters not in evidence and to confine their deliberations to the
evidence. She also informed them that
closing arguments are not evidence, and that the jury "should rely on
their memory of the evidence if their memory [was] different from that of an
attorney." Id. We characterized these remarks as "standard
fare" and concluded that they did not address the closing argument
 Because of the likelihood of a
retrial, we address the defendant's two other claims of impropriety in the
prosecutor's closing argument which, because they were not preserved at trial
by an objection, we review to determine whether they created a substantial risk
of a miscarriage of justice. See
Commonwealth v. Horne, 476 Mass. 222, 225-226 (2017), quoting Commonwealth v.
Zimmerman, 441 Mass. 146, 150 (2004) ("Where . . . the objection was not
preserved, we review the defendant's claim to 'determine whether any error . .
. created a substantial risk of a miscarriage of justice"). First, the defendant contends that the
prosecutor in her closing argument, when speaking about Camila wanting to go
home on New Year's Eve, improperly asked the rhetorical question, "Should
we bring in more witnesses to tell you the same thing?" The defendant correctly contends that this
statement improperly suggests that other witnesses would have corroborated
Camila's testimony on this point had they testified. See Commonwealth v. Dirgo, 474 Mass. 1012,
1017 (2016) (improper for prosecutor to imply "that there were more
witnesses that were not brought before the jury that would have corroborated
the first complaint testimony").
But where the defendant did not object to the prosecutor's use of this
rhetorical question and where there was no testimony that the defendant
sexually touched Camila on New Year's Eve, we conclude that this impropriety
did not create a substantial risk of a miscarriage of justice.
Second, the defendant claims that the
prosecutor improperly compared the evidence in this case to the evidence in
other child sexual abuse cases when she stated during her closing argument,
"In this case, as in a lot of these cases, the only evidence you have in
front of you is testimony." But
where the defendant did not object to the prosecutor's statement, we conclude
that this comment regarding the nature of the evidence presented in "a lot
of" other child sexual abuse cases, although best omitted, did not create
a substantial risk of a miscarriage of justice.
 The dissent unfairly mischaracterizes
the court's opinion in various ways that warrant rebuttal. First, the dissent attempts to paint the
opinion as giving less weight to the credibility of the testimony of alleged
victims of sexual assaults than the testimony of alleged victims of other
crimes. It does not. If the allegation here was theft, rather than
sexual assault, and if the weight of the evidence rested solely on the
testimony of a child regarding events that happened when the child was between
the ages of six and nine, our analysis would be precisely the same. We reject the notion that the testimony of
alleged sexual assault victims is less credible than the testimony of the
alleged victims of other crimes, and recognize that notion as the product of
stereotypical misperceptions, prejudice, and bias. See generally Commonwealth v. Asenjo, 477
Mass. 599, 603 (2017), quoting Commonwealth v. King, 445 Mass. 217, 239-241
(2005), cert. denied, 546 U.S. 1216 (2006) ("the underlying purpose of
first complaint evidence is still 'to counterbalance or address inaccurate
assumptions regarding stereotypes about delayed reporting of a sexual assault
or about sexual assault victims in general'"); Commonwealth v. Arana, 453
Mass. 214, 228 (2009) (recognizing importance "that a complainant (who, as
here, may be still a child) has her credibility fairly judged on the specific
facts of the case rather than unfairly by misguided stereotypical
Second, the dissent, in stating that
"courts have dismissed the value of sexual assault victim testimony"
with "ease," insinuates that the opinion here has done just
that. Post at . It
does not; we do not in any way dismiss the value of Camila's testimony. The testimony of Camila plainly was
sufficient as a matter of law to support the defendant's convictions and, if
the prosecutor had not told the jury in opening statement and closing argument
of key corroborating testimony of Camila's mother that was not in evidence, the
convictions would have been affirmed.
But where a conviction rests solely on the credibility of a single
witness, a reasonable jury must believe that witness's testimony beyond a
reasonable doubt with respect to the required elements of a crime to find a
defendant guilty of that crime. The
issue on appeal is not whether we credit Camila's testimony, but whether we are
"sure that the error did not influence the jury, or had but very slight
effect" in the jury's evaluation of whether they believed that testimony
beyond a reasonable doubt. See
Commonwealth v. Hrabak, 440 Mass. 650, 656 (2004), quoting Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). By
concluding that we are not sure that the error did not influence the jury in
its deliberations, we in no way "dismiss" the value of Camila's
Third, the dissent contends that, by
noting that Dr. Heather Forkey testified that Camila did not exhibit or report
any of the common behavioral symptoms of abuse, including nightmares, bed-wetting,
difficulty in school, and running away from home, and that her genital
examination was "normal" for a nine year old girl, the court's
opinion "creates a de facto corroboration requirement, necessitating a
child without physical symptoms or eyewitnesses . . . to display enough
emotional trauma to be credible."
Post at . It does not.
The uncorroborated testimony of a child is sufficient to support a
conviction of sexual assault, but a competent prosecutor knows that the
credibility of such testimony is stronger with corroboration than without it,
and will offer corroborative evidence where it exists.
Finally, the dissent contends that, by
vacating the conviction and remanding for a new trial, the court "does a
disservice to all future victims whose interests are represented by imperfect
prosecutors." Post at .
The prosecutor here was not merely "imperfect" -- she twice
told the jury that there was important corroboration from the mother that was
not in evidence, and we are not sure that this error did not influence the jury
in their deliberations. It does not
disserve future victims for this court to order a new trial where we find
prejudicial error. Due process requires
 We recognize that the judge did not
strike Dr. Forkey's testimony that it is "very uncommon" to find
physical injury on the genitals of victims of sexual abuse after sustaining an
objection to this question only because he did not hear the answer. But, where the answer was not struck, we
treat it as if the judge had denied the motion to strike after having heard the
answer, and review for an abuse of discretion.
 During cross-examination, the
defendant questioned the detective about the lapse in time between Camila's
first complaint and her interviews of the defendant and Camila's mother. The defendant also questioned her decision
not to take a written statement from one of Camila's sisters, and not to speak
with Camila's other sister. The
detective did not recognize the name of Camila's father or attempt to speak to
her young cousins and friends who were present during some of the gatherings in
question. footnotes for dissenting opinion
 The court disputes this
characterization of the prosecutor's performance, alleging that "she twice
told the jury that there was important corroboration from the mother that was
not in evidence." Ante at note
4. A close reading of the record shows
that the prosecutor's error occurred only once, during the disputed closing
argument. The court mischaracterizes the
prosecutor's opening statement. There,
the prosecutor mentioned Camila's desire to take a bath after the first
assault, during a section in which she previewed Camila's testimony, not any
evidence to be offered by Camila's mother.
Camila testified in accordance with the prosecutor's opening statement.
 We preserve the opportunity for the
Commonwealth to introduce first complaint evidence "consistent with our
focus on the evidence pertaining to the facts and circumstances surrounding the
complainant's initial report of the alleged crime." King, 445 Mass. at 242.
 Of course, we do not presume a person
is guilty based on a mere untested accusation.
 The defendant's cross-examination
focused on the happy relationship Camila had with her family, including the
defendant, and Camila's parents' gentle style of discipline. Defense counsel contended in closing argument
that if the defendant were abusing Camila, her family would have noticed, and
she would have felt safe coming forward because her parents did not hit her or
often shout at her. Although Camila did
not disclose immediately, she did, in fact, disclose the abuse to her family.
 During jury empanelment, the judge
told the jury that they would be deciding the case solely on the evidence and
that evidence consisted of witness testimony, exhibits, and factual
stipulations alone. After jury
empanelment, the judge reminded the jury that they would decide the case
"exclusively on the evidence."
At the beginning of trial, the judge told the jury that statements from
the attorneys are not evidence. Prior to
closing argument the judge instructed the jury that a "closing statement
is not itself evidence, nor is it a substitute for the evidence. The evidence in this case is closed."
After closing argument, the defendant
requested that the judge immediately remind the jurors that their memory of the
evidence controls. The judge declined
because that instruction was "adequately covered in the [jury] charge as a
whole." The judge then immediately
instructed the jury, beginning the charge by reminding the jury that they are
"the sole and exclusive judges of the facts." While elaborating on how the jury may find
facts, the judge reminded the jury that "opening statements and the
closing arguments of the lawyers are not a substitute for the evidence."
Although the judge issued that instruction
further from the prosecutor's closing argument than the defendant wished
(approximately five transcribed pages separate the defendant's request and the
judge's reminder that closing arguments are not evidence), its content
satisfied the defendant's request.
"In light of the judge's repeated instructions that the closing
arguments do not constitute evidence, any damage to the defendant was
sufficiently repaired." Commonwealth
v. O'Connell, 432 Mass. 657, 659 n.3 (2000).
See Commonwealth v. Dagley, 442 Mass. 713, 725 (2004), cert. denied, 544
U.S. 930 (2005) ("That the judge's final instruction did not include any
express correction of the prosecutor's mischaracterization does not mean that
the instruction was inadequate to cure any confusion caused by that
 The court dismisses the value of the
testimony corroborating the context of Camila's allegations because such
behavior is "hardly surprising or noteworthy" for a child of Camila's
age. Ante at .
Considered in isolation, any fact about a child's behavior can seem
insufficient to support allegations of abuse, especially where such evaluations
include the court taking judicial notice of what is normal for a child of a
certain age. Even the recognized signs
of abuse, which the court notes are absent, such as nightmares, bed-wetting,
difficulty in school, or running away from home, can be interpreted in isolation
to have innocent explanations. Ante
When considered in the full context of allegations of sexual abuse,
however, behavior that can be otherwise typical for some children can inform
our understanding of a particular child victim's testimony.
 See T.J. Buller, Fighting Rape Culture
with Noncorroboration Instructions, 53 Tulsa L. Rev. 1, 5-6 (2017) (evidence of
physical injury from sexual assault is uncommon and "the odds of finding
any physical trauma decreases dramatically following the first twenty-four
hours after an attack").  The persistent lack of physical
evidence and regular disbelief of victims necessitates that prior bad acts be
admissible in cases of rape and sexual assault.
See Fed. R. Evid. 413 & 414; Larsen, Sexual Violence is Unique: Why Evidence of Other Crimes Should be
Admissible in Sexual Assault and Child Molestation Cases, 29 Hamline L. Rev.
177, 207-208 (2006) ("perceived lack of credibility demands a rule that
attempts to equalize the rights of the victim with the rights of the accused. The credibility problem becomes particularly
important given that many victims will refrain from reporting the crime since
they are perceived as unbelievable").
Such a change would be an important, but not radical, change in our
current case law. See e.g., Commonwealth
v. Helfant, 398 Mass. 214, 225-226 (1986) (affirming rape conviction where two
people testified that defendant sexually assaulted them in circumstances
similar to victim's allegations because prior acts were probative of
defendant's common pattern of conduct and probative value outweighed prejudice
to defendant); Commonwealth v. King, 387 Mass. 464, 469, 470 (1982) (affirming
conviction of rape of child where Commonwealth introduced evidence of
defendant's uncharged rape of child other than victim because evidence showed
common pattern or course of conduct toward two children and was
"sufficiently related in time and location to be logically
probative"); Commonwealth v. Lanning, 32 Mass. App. Ct. 279, 283 (1992)
(affirming convictions of indecent assault and battery on child and rape of
child where children other than victims testified about defendant's prior acts,
because "the evidence corroborated the victims' testimony and showed a
common scheme and pattern of behavior").