dissenting.
The majority concludes that the trial judge’s instruction to the jury that “[y]ou ... may not consider the child’s failure to complain as evidence weighing against the credibility of the child” deprived defendant of the opportunity to have the jury consider one of the factors relevant to the evaluation of Susan’s credibility and requires a reversal and a new trial. I respectfully dissent.
At the charge conference, the State requested that the judge provide the jury with a fresh complaint charge,4 which would instruct the jury that Susan’s silence or failure to complain should not weigh against her credibility. See Model Jury Charge (Criminal), “Fresh Complaint: Silence or Failure to Complain” (1998). The judge initially stated that it would be confusing to charge the jury with both delay and CSAAS because the delay charge would instruct the jury that Susan’s silence could not be considered as evidence weighing against her credibility, while CSAAS would instruct the jury that Susan’s silence, along with other characteristics of CSAAS, could be considered by the jury to explain her behavior.
The next day, the judge reconsidered his previous position, and relying on State v. Bethune, 121 N.J. 137, 578 A.2d 364 (1990), State v. Hill, 121 N.J. 150, 578 A.2d 370 (1990), and State v. J.Q., 130 N.J. 554, 617 A.2d 1196 (1993), concluded that the State was entitled to a delay charge because Hill and Bethune required that the jury must be instructed that a negative inference cannot be drawn from a victim’s silence, and the charge limited the jury’s assessment of the victim’s credibility.
In Bethune, the Supreme Court discussed the use of the delay charge in sexual assault cases involving children, mandating that
Trial courts should instruct the jury of the limited role that fresh-complaint evidence should play in its consideration of the case. The trial court should make clear that a fresh complaint does not bolster the victim’s credibility or prove the *549underlying truth of the sexual assault charges but merely dispels the inference that the victim was silent.
In State v. Hill, supra, 121 N.J. 150, 578 A.2d 370, we discuss how the expectation that a grown woman will complain after having been raped is not necessarily logical or true. Likewise, a young child may not tell anyone of sexual abuse for a myriad of reasons, including fear, ignorance, or confusion. The jury should not assume that merely because a child does not make a fresh complaint, the child's subsequent charges are contradictory or false. In eases in which a child fails to complain, the court should, if requested by the State, instruct the jury not to consider it evidence weighing against the credibility of the child, because silence is one of the many ways a child may respond to sexual abuse. We recognize that there may be cases in which the trial court could believe that a child’s silence about sexual assault is not an issue and that an instruction to the jury concerning the matter would do more harm than good. In those cases, the trial court may omit the charge. Whenever defense counsel or a witness attempts to shed doubt on the child’s credibility because of his or her silence after the assault, however, the trial court should issue a curative instruction and instruct the jury not to draw from the silence an adverse inference.
[121 N.J. at 148, 578 A.2d 364.]
The judge reasoned in this case that the delay and CSAAS charge would not confuse the jury because the delay charge dealt with credibility, while the CSAAS charge dealt with an explanation of patterns of behavior. The judge then instructed the jury on both delay and CSAAS, modifying the model charges by adding additional language to distinguish between the two charges. The delay charge, as presented to the jury, stated:
Now, in this case evidence of Susan’s silence or failure to complain was introduced to prove that sexual abuse did not occur. You are instructed that a child may not complain or tell anyone of sexual abuse for a myriad of reasons including fear, ignorance or confusion. You therefore may not consider the child’s failure to complain as evidence weighing against the credibility of the child because silence is one of the many ways a child may respond to sexual abuse if it has occurred. Whether or not sexual abuse has occurred is for you to decide based on all the evidence. This instruction is given for the limited purpose that you cannot draw any negative inference from, Susan’s silence or failure to complain as weighing against her credibility when you consider the same.
[Emphasis added.]
Except for the last two sentences of the charge, the trial judge’s delay instruction was derived entirely from the model jury charge. The second-to-last sentence was added at defense counsel’s request. The last sentence was added by the judge to avoid confusion with the CSAAS charge; the judge explained that the *550last sentence would eliminate “the confusion to the jury” by telling them that “silence does not mean that they can use it against the credibility of Susan. The Supreme Court’s clear on that. They cannot — they’re not allowed to draw a negative inference by her silence.” The judge further explained how the fresh complaint charge was different from the CSAAS charge.
[Fresh complaint] is different than experts testifying of the traits that may be present in someone who is abused and therefore, it’s offered to rehabilitate or rebut an implied impression that if individuals exhibit this trait such as helplessness, such as accommodate [sic], such as secrecy, that it wouldn’t be so to the com — common layman in terms of being inconsistent with someone who’s been abused. It’s offered to really rebut that inference that someone who is abused may indeed exhibit those traits.
The judge then charged the jury as to CSAAS and said:
CSAAS or syndrome evidence is not proof of a child sexual — is not proof of child sexual abuse nor is it a diagnostic device or a test for child sexual abuse. You cannot consider it for such evidence. It cannot be used to prove whether or not abuse has occurred. Instead, CSAAS or syndrome testimony relates to patterns of behavior which may or may not be present and exhibited by sexual abuse victims. It helps to explain patterns of behavior identified as secrecy, helplessness, entrapment and accommodation, delayed disclosure and recantation. In this regard, you may consider the testimony to explain such patterns of behavior and to rebut an implied or ... express assertion that such behaviors indicate that a child is not telling the truth.
However, these patterns of behavior may exist without sexual abuse having occurred and it may be caused by other factors. One of the purposes of the testimony is to dispel the idea that secrecy and/or belated disclosure have the same negative implications in an alleged child abuse case as it would in other types of cases. For instance, in a burglary case if the homeowner did not report the burglary for several years you could certainly draw negative implications from this type of behavior. The testimony about CSAAS or syndrome testimony is offered to explain such behavior and to rebut any negative implications associated with secrecy and belated disclosure.
Defendant argues that the two charges are inconsistent because the CSAAS instruction advised the jury that it could consider the patterns of behavior explained by CSAAS to “rebut any negative implications associated with secrecy and belated disclosure,” while the delay charge instructed the jury that it could not consider Susan’s silence as weighing against her credibility.
The two charges are not inconsistent because the delay charge did not prohibit the jury from considering Susan’s silence or her *551credibility generally, it only prevented the jury from considering that silence against her credibility. The CSAAS charge allowed the jury to consider Susan’s silence for the purpose of determining whether that silence was consistent with the syndrome. CSAAS testimony is admitted into evidence to educate jurors about certain traits found in victims of sexual abuse and to aid jurors in evaluating specific defenses, namely that a delay in reporting indicates that a child is lying. J.Q., supra, 130 N.J. at 556, 564, 617 A.2d 1196. The two charges serve different purposes and may be given in the same case. I again note the mandatory direction enunciated in Bethune and observe that the model charge reflects that holding.
In Hill, involving an adult victim, the Court suggested the permissive instruction to be presented on the issue of a victim’s silence and noted:
if a defendant introduces or elicits evidence of a victim’s silence to prove that a rape did not occur, as additional protection, the trial court, if requested by the State, may instruct the jury that a woman may respond to a rape in a variety of ways, including silence. In all other respects the trial court shall review the admissibility of a victim’s silence under existing rales of evidenea
[121 N.J. at 166, 578 A.2d 364 (emphasis added).]
Bethune’s mandatory instructional dicta dealt with a more narrow issue — silence of a child victim. In mandating the instruction on the child’s silence, the Court presaged its later holding in J.Q., recognizing the impact of CSAAS and its relevance to a child’s failure to complain. I find no inconsistency between the jury’s preclusion from considering a child’s silence as weighing against the child’s credibility and the explanation provided by the CSAAS charge presented in this trial. The jury was instructed that it had to decide the victim’s credibility using all of the factors the judge set out in detail in his general credibility charge. The only factor that the jury could not consider was the child’s failure to complain. The judge was particularly careful to admonish the jury that it still had to determine whether sexual abuse had occurred at all.
In asserting the relevancy of the delay testimony, the majority relies, in part, on Professor Coombs’ observations and generalized *552views as to how victims of sexual assault react to such offenses. See ante at 543-544,- 803 A.2d at 671. Professor Coombs’ view was addressed and essentially refuted by Professor Colb’s persuasive response. She noted:
It pays to pause here and examine why Professor Coombs might believe, as a matter of logic and common sense, that silence tends to be inconsistent with a rape having just occurred. When something upsetting happens to a person, we expect that the natural human response is to complain. Human beings are social creatures who understand then- experiences largely by sharing them with others. While unimportant events (such as seeing a green light) generally go unreported, we might have an intuition that traumatic events, particularly those that violate the criminal law, would be likely to impel a complaint to a friend or to the police. As Professor Coombs explains in a footnote:
(I)t is reasonable to expect any victim of crime, especially viojent crime, to inform not only family or friends but also law enforcement authorities, a doctor, and perhaps others____It is not sexist to apply this expectation to rape as to other crimes, or to apply it to female victims of crime as to male ones.
This expectation is indeed neither malevolent nor sexist. However, it does underestimate the countervailing forces that operate on a rape victim — in contrast to victims of other crimes — to suppress the otherwise common inclination to talk about one’s pain.
[Sherry F. Colb, Assuming Facts Not in Evidence, 25 Rutgers L.J. 745, 751-52 (1994).]
Professor Colb then provided empirical data addressing the issue of delay in reporting.
In an April 1992 study entitled Rape in America, the Crime Victims Research and Treatment Center of the Medical University of South Carolina interviewed a nationally representative sample of 4008 women about sexual assault. The following statistics emerged from this study: 71% of sexual assault victims were concerned about their families knowing they had been sexually assaulted; 69% were concerned about people thinking the assault was their fault or that they were responsible; and 68% were concerned about people outside their families knowing they had been assaulted. We begin to see from these data that extending our expectations about the behavior of crime victims generally to victims of sexual assault is not necessarily warranted.
Additional data provide more specific facts illustrating that professor Coombs’ otherwise understandable intuitions about the behavior of rape victims are empirically false. The Rape in America report disclosed that only 16% of sexual assault victims ever report the assault to the police. The Senate Judiciary Committee found an even lower reporting rate of 7%, compared with the reporting rate of 53% for robberies.
Moreover, data from other sources show that “rape is rarely reported to anyone, and women who do report the crime often wait days, weeks, months, or even years *553before confiding in a family member, a friend or a rape crisis counselor, much less going to the police.” Of those few who actually go to the police, a full quarter do not go within twenty-four hours.
What does this all mean for the witness who testifies that she was raped, but who does not complain immediately? It means that she resembles the vast majority of true rape victims. Therefore, an argument to the jury that she is demonstrably different from actual rape victims — by virtue of her delay — would be misleading. If jurors share Professor Coombs’ common sense intuitions about rape, then we can expect they will indeed be misled by delay evidence. To say this is not to deny that “jurors today are well-educated,” but simply to acknowledge what ignorance of the facts can do to even the brightest and most educated people. Because a true rape victim is typically unwilling to talk about her experience, the fact-finder’s inference that “if she were raped, she would have complained” is misguided and therefore inappropriately prejudicial to the prosecution.
[Id. at 752-54, 617 A.2d 1196.]
Finally, Professor Colb provides the policy justification supporting the Court’s proscription of the consideration of delay and credibility as set forth in Bethune.
Though the empirical irrelevance of delay should be enough to exclude the evidence, there are policy reasons to do so as well. At this time, most rape victims do not go to the police within twenty-four hours, Just as they do not want to report to police officers, they are reluctant to talk to friends and family. We know from psychologists that the reasons for this, though varied, stem in part from the stigma attaching to victims that makes rape a virtually unique crime. If this initial silence can be used to discredit a later complaint, then we send the following message to the typical rape victim (who has not complained yet): any forthcoming complaint will be discredited by your initial silence, and the jury will be asked to infer that you are lying and that no rape occurred.
Admitting a defendant’s proffered delay evidence would discourage rape victims who have failed to report the crime within twenty-four hours, the overwhelming majority, from ever reporting. Admitting such evidence would thus reinforce the current state of underreporting: nationally, 95% of rape victims who do not go to the police within twenty-four hours do not go at all. One potential consequence of tolerating this overwhelming failure to report is rampant recidivism. In a study of unincarcerated sex offenders, 126 admitted offenders had committed a total of 907 rapes involving 882 different victims. The average number of different victims per rapist was seven.
In light of all the facts refuting the relevance of delay evidence and demonstrating the potential for increased underreporting, it is incumbent upon a responsible policymaker proposing the admissibility of delay evidence to support his claim with something more than a citation of “common sense.” Some of Professor Coombs’ empirical information, as he wishes to do, is misguided as to the facts and, consequently, as to the law as well. Professor Coombs would thus elevate the adage “justice delayed is justice denied” to a novel role in evidence jurisprudence.
[Id. at 755-57, 578 A.2d 364.]
*554The Supreme Court’s instruction in Bethune defined a class of victims — children—who would be protected from the now disavowed requirement of the “hue and cry” expansively discussed in Hill, supra, 121 N.J. at 157-63, 578 A.2d 370. I suggest that by allowing a child’s credibility to be considered when delay in reporting is involved once again victimizes the victim and brings us back to the era of “hue and cry.”
The trial judge carefully explained the nature of the delay charge required by Bethune and its relationship to the CSAAS charge. I see no error and would affirm.
Although denominated as a "Fresh Complaint” charge, this case did not involve a fresh complaint, but a delay in reporting.