Hearsay Comments in Sex Abuse Cases Upheld

SAN FRANCISCO — A juvenile court, deciding whether to restrict a parent’s access to a child, can consider out-of-court comments the child made to others about being sexually molested even if the child cannot distinguish truth from fantasy in a courtroom, the California Supreme Court ruled Monday.

The 6-1 ruling comes at a time of growing concern over the credibility of young children who make allegations of sexual abuse. “There is an increase in the number of child abuse cases involving very young children, so this will affect quite a few cases,” said Stephanie M. Davis, one of the lawyers in the case.

The state high court reaffirmed a precedent that allows juvenile courts to admit out-of-court statements during hearings to determine if a possible sex abuse victim should be made a dependent of the court.

Even if a child is incapable of testifying, the “hearsay” statements about sexual abuse can be admitted if other evidence exists to corroborate the statements, the court said in establishing new requirements for admitting such out-of-court statements.

The decision came in a Los Angeles case in which a 3-year-old girl told a preschool aide that her father touched her vagina. When the case went to Juvenile Court, the girl appeared incapable of understanding the questions posed to her, at one point testifying “the clown” touched her genitals.

The judge said she could not declare the child a competent witness because it was impossible to conclude that the girl “understood the duty to tell the truth” or had “the ability to distinguish between truth and falsity.”

Nevertheless, the judge decided that the child’s statements to the preschool aide were admissible under an exception in the law for child dependency cases. As a result, the father, who was separated from the girl’s mother, was forced to receive counseling and could see his daughter only with supervision.

The father appealed, and a Court of Appeal in Los Angeles upheld the judge’s decision. The father asked the Supreme Court to review the case, arguing that a child who is incompetent to testify because of her inability to distinguish truth from fiction must be presumed to have been incompetent when she made the out-of-court statements.

The child, Cindy L., now 7, was attending a Los Angeles County preschool in 1994 when a teacher’s aide noticed her touching her vagina during nap time. The aide asked in Spanish: “Cindy, what are you doing? You shouldn’t be touching yourself right there.”

Cindy replied: “Well, my father always touches me right here.”

The aide informed the child’s mother, who talked to Cindy that night. The mother said Cindy denied any abuse. After a second incident at the preschool, the director called the Los Angeles County Department of Children and Family Services.

A social worker interviewed the child. “Has anyone touched you in private places?” she asked the girl. Cindy replied, “Yes, Poppie,” and demonstrated with her hand. Los Angeles police were called, but investigators could not determine whether abuse had occurred. At the Juvenile Court hearing, the county child welfare department tried unsuccessfully to obtain testimony from the child. The court found Cindy was incapable of testifying.

The Supreme Court, upholding the lower court decisions, established new conditions for admitting out-of-court statements in such cases. The court said these were needed to protect parents.

A juvenile court must find that the “time, content and circumstances” of the statements indicated reliability, and the child must either be available for cross-examination or other corroborating evidence of sexual abuse must exist, the Supreme Court said. A welfare agency also must notify other parties of its intention to introduce hearsay comments so others can contest them.

“The fact of a child’s incompetence to testify does not prevent a court from finding that the various circumstances surrounding the [child’s previous] statement--not only its spontaneity, but also the precociousness of the child’s knowledge of sexual matters [and] the lack of motive to lie” indicate reliability and are grounds for admission as evidence, Justice Stanley Mosk wrote for the court.

Justice Janice Rogers Brown, in a dissent, said the Legislature, not the court, should determine when hearsay statements can be admitted in such cases.

“The role played by reality, imagination and suggestion in such a child’s recollection of events is profoundly mysterious,” Brown wrote.