317 P.3d 290
Or. Ct. App.2013Background
- Defendant appeals a conviction on two counts of first-degree sexual abuse (ORS 163.427).
- The victim, 10, lived with her grandmother and grandfather (the defendant).
- A school report of abuse triggered a mandatory child abuse investigation leading to the prosecution.
- Before trial, defendant sought to admit statements from two reports by a therapist (Vercoutere) and a school psychologist (Young) to impeach the victim’s credibility.
- The trial court denied the motion, ruling the material was privileged and not within the abuse exception; the court later affirmed the exclusion.
- The court concluded ORS 419B.040(1) provides a limited exception for statements directly mentioning abuse, not general credibility impeachment, and thus the therapists’ testimony was properly excluded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 419B.040(1) create an exception to psychotherapist-patient privilege for credibility impeachment? | Ortega: 419B.040(1) abrogates privilege for evidence of the child’s abuse or its cause. | Defendant: statute broadly suspends privilege for proceedings from mandatory reports. | No; the exception is limited to statements about abuse or its cause. |
Key Cases Cited
- State v. Hansen, 304 Or 169 (1987) (limited, explicit exception to privilege for abuse-related statements)
- State v. Reed, 173 Or App 185 (2001) (limits Hansen to explicitly exonerating/denying abuse; not all privileged material)
- Langley v. State, 314 Or 247 (1992) (standard for reviewing privileged-evidence admissibility)
- State ex rel Juv. Dept. v. Spencer, 198 Or App 599 (2005) (applies 419B.040(1) to communications by those accused of abuse; limited scope)