This appeal presents the important question of whether hearsay evidence is admissible to prove that a parent has sexually abused his child. The family court held there is a “child abuse” exception to the rule against hearsay and admitted the evidence. We reverse.
The Department of Social Services commenced this action pursuant to Section 20-7-650(H), Code of Laws of South Carolina, 1976, as amended, seeking a determination that it had reasonable cause to initiate child protective services. The Department alleged that one John Doe had sexually abused his three and a half year old daughter by performing oral sex on her and fondling her genital area. In his answer, Doe denied all allegations of sexual abuse.
I.
Hearsay consists of out of court statements offered in evidence to prove the truth of the matter asserted.
Yaeger v.
Murphy,
The rule against hearsay provides that statements made out of court, without an opportunity for cross examination of the declarant and without the sanction of an oath, shall not be received as evidence in judicial proceedings.
Haselden v. Standard Mutual Life Association,
190 S. C. 1,
Any man of experience who has heard tales told by one man against his neighbor, behind his back, and again told, when placed face to face, and new views are suggested by the man he had accused, and possibly belied — any one that has known such occurrences, will readily conceive ... of the justice, reason, and necessity of applying, to every witness, this ... test of the truth of his narration. Experience has proved that it is, of allothers, the most effective, the most satisfactory, and the most indispensable test of the evidence narrated on the witness’s stand. * * * * I know of no disagreement among the expounders of evidence upon the importance of the cross-examination.
State v. Campbell, 30 S. C. L. (1 Rich.) 124, 126-27 (1844).
Despite the importance of testing evidence by cross examination, the law recognizes exceptions to the rule against hearsay.
Cf. Haselden v. Standard Mutual Life Association, supra
(courts exclude hearsay unless proffered statements are within certain definite and well recognized exceptions). Experience teaches that certain classes of hearsay are substantially more trustworthy than hearsay in general. Moreover, in some cases hearsay may be the best or the only evidence available, so that the choice is between reasonably trustworthy hearsay and no evidence at all. Thus, where there is difficulty in obtaining other equally probative evidence and in the particular circumstances of the case there are sufficient guarantees that it is trustworthy, hearsay may be admitted as an exception to the general rule of exclusion.
Sugden v. Lord St. Leonards,
(1876) 1 P.D. 154, 241 (Jessel, M.R.);
Good v. A.B. Chance Co.,
In this case, the judge allowed the child’s out of court statements to third persons to be presented as evidence of the truth of the matter asserted. This evidence was not admitted under any of the well recognized exceptions to the rule against hearsay. Instead, the judge created a new exception for statements made by a very young child who is the alleged victim of sexual abuse by a family member. In
because of the almost impossible burden of proof were the Hearsay Rule to be strictly adhered to. * * * * Now, the Appellate Court needs to realize that if we are to address this concern, sexual abuse of very young children by a family member where there’s no physical evidence of abuse, there really is only one way that we can do it and that is to rule the way I have just ruled. To do otherwise would be to cast young victims of sexual abuse by family members into a situation [in] which they have no protection at all from the State and it is my belief that society has a duty to protect people in this position who do not have the ability to protect themselves. I make this ruling without any implication that in this particular case I would find any statements that might have been made by the alleged victim to be credible at all____
In other words, the judge admitted the hearsay primarily on the principle of necessity without regard to its trustworthiness.
Like the family court judge, we have a deep concern for the problem of child sexual abuse. Nevertheless, the law does not permit us to sustain his ruling.
II.
Although the problem of abused children is as old as human history,
1
no South Carolina cases recognize a “child sexual abuse” exception to the rule against hearsay. In this respect, South Carolina is not unique. As was pointed out in
Commonwealth v. Haber,
The proposed Uniform Rules of Evidence of the National Conference of Commissioners on Uniform State Laws contain the hearsay rule and thirty recommended exceptions. They do not include an exception for out of court statements by children. The leading treatises on evidence — Wigmore, Jones, and McCormick — do not recognize an exception for out of court statements by children. Binder’s Hearsay Handbook, a respected practitioner’s manual, does not recognize a “child abuse” exception. Id.
Some legislatures have recently enacted statutes permitting hearsay evidence in child abuse cases, but we agree with the observations of the Haber court on this legislative trend:
It is hard for a legislator, who must periodically run for reelection, to vote against a proposed statute that makes it easier to convict persons accused of child abuse, because of the danger that an opportunistic opponent and an unsophisticated electorate may interpret such a vote as being soft on crime in general, or soft on child-abusers in particular. Politically, the safest thing for a legislator to do is to vote in favor of such a statute, regardless of its merits, and leave it to the courts to deal with the ramifications of its enactment.
Commonwealth v. Haber, 351 Pa. Super, at 82, 505 A. (2d) at 275 n. 1. In any event, the South Carolina General Assembly has not enacted a statutory exception, so we must decide this case according to the principles of the common law.
III.
The general absence of a class exception for “child abuse” hearsay in the common law of evidence is no happenstance. There is no reason to believe the out of court statements of young children are substantially more trustworthy than other types of hearsay.
Certainly in this case there were serious reasons to question the reliability of the child’s statements. At the time the statements were made, the child was caught in the middle of a custody dispute incident to her parents’ divorce. She was
The trial judge perceived these problems of trustworthiness, but he considered them as going to the weight of the evidence, not to its admissibility. In doing so, he ignored the principle that, where hearsay is concerned, trustworthiness goes to admissibility and not simply to weight. He also overlooked the importance of cross examination as a means of aiding the fact finder to determine the weight of the evidence. Without the test of cross examination, the judge was in an inferior position to weigh the child’s statements against the conflicting evidence.
Cf. State v. Williams,
285 S. C. 544, 548,
IV.
The judge placed his primary emphasis on the necessity of the evidence. In his order, he enumerated four criteria of necessity under which “child abuse” hearsay could be admitted: (a) the declarant is of such an age and ability that he most probably would not be available as a witness by proper qualification; (b) circumstances are such that the declarant would suffer harm if forced to testify directly; (c) there is a strong possibility the declarant would not be able to repeat the earlier assertions in court when the person against whom he is asked to testify is present; and (d) the de-clarant’s hearsay statement is of such great importance that the event alleged could not be established without it.
Unlike the judge, we think the child should have been called as a witness if her testimony was critical. We are not
A.
Tender years. The Department contends the child’s young age made her incompetent to give evidence in this case. From this assumed premise it then reasons that, since the child was unavailable to testify because of incompetence, hearsay evidence should be admitted to avoid a failure of proof. Both parts of the argument are contrary to settled rules of law.
First, a child of tender years is not per se incompetent because of age. At common law, persons fourteen years of age and older are presumed competent to give evidence; proof of competency is required for children under that age.
Rosche v. McCoy,
In Rex v. Brasier, (1779) 1 Leach 199, the English judges unanimously recognized the rule that a child of tender years may be competent to give evidence. In that case, the defendant was indicted for assaulting an infant under the age of seven years with intent to rape. The judges concluded
there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court----
Id. at 200. This rule was received by the American courts in the 19th century and is widely accepted today. 3It is the law of South Carolina. State v. Green, 267 S. C. 599, 230 S. E. (2d) 618 (1976).
A child’s competency to testify depends on showing to the satisfaction of the trial judge that the child is substantially rational and responsive to the questions asked and is sufficiently aware of the moral duty to tell the truth and the probability of punishment if he lies.
State v. Givens,
267 S. C. 47,
The question of the competency of a child witness is to be determined by the trial judge.
State v. Green, supra.
In making his determination, the judge must rely on his personal observation of the child’s demeanor and responses to inquiry on voir dire examination. There can be no informed exercise of judicial discretion if the judge merely accepts the representation of counsel that a child is not competent, without personally examining and observing the child on voir dire.
State v. Fearing,
Second, the Department’s equation of incompetency with unavailability is in error. Unavailability means the proponent of the hearsay is not able to produce the declarant as a witness at trial. A witness is unavailable if dead, insane, overseas, or kept away by the contrivance of the opposing party.
State v. Steadman,
216 S. C. 579,
The admission of hearsay under an exception to the rule presupposes the declarant is possessed of the qualifications of a witness in regard to competency,
It is impossible to say that if a person said something and could not himself, if alive, have been permitted to give testimony to prove it, he can, by dying, render that statement admissible. I think that is a self-evident proposition.
Dysart Peerage Case,
(1881) 6 App. Cas. 489, 504. Similarly, it is impossible that a child who is incompetent to make statements as a witness can, by absenting himself from court, render those statements admissible. Generally, if the declarant was not competent at the time of making the statement, it may not be admitted into evidence through hearsay repetition.
State v. Ryan,
103 Wash. (2d) 165,
B.
Harm to the child. The Department also protests that the experience of testifying in court will be unduly traumatic for the child, thus justifying a relaxation of the hearsay rule. We have no doubt that many witnesses, adults as well as children, find a court appearance stressful. This does not strike us as a sound reason for ignoring the rule against hearsay.
In this case there was no showing of permanent harm to the child from testifying. Indeed, if we are to believe the testimony of the Department’s own clinical psychologist, the child suffered no anxiety about recounting the alleged incidents of sexual abuse to strangers over a period of several months. The assertion that the child would be injured by testifying is purely conjectural. See In re S. Children, 102 Misc. (2d) 1015, 424 N.Y.S. (2d) 1004 (1980).
We are frankly skeptical of the vogue among child advocacy professionals to ascribe lasting psychological harm to a single courtroom appearance by a child. Where a potential for harm exists, the wise exercise of judicial discretion can protect the child witness from undue
C.
Inability of child to testify in presence of parties. The Department also argues the child may be unable to repeat the hearsay allegations accurately in court. Such an assertion is purely conjectural in this case, since the child was not offered as a witness. However, the Department suggests a number of abstract reasons for concern.
The Department assumes the child may be reluctant to testify in the presence of the adverse party. The solution to this problem is not to admit hearsay, but to take the child’s testimony out of the presence of the party. If, after preliminary examination of the child, the judge determines the child cannot freely testify with the adverse party present, he has the discretion to exclude the party while the child is examined.
See State v. Cooper, supra; O’Neill v. Cooper,
282 S. C. 275,
The Department also suggests the child’s in court testimony may not be as coherent or consistent as its hearsay declarations. Again, we think the Department presents a false dilemma. We have previously held the fact finder may make allowance for inconsistencies in the
Additionally, the Department argues hearsay is necessary because the child’s memory of events will have failed by the time it testifies in court. The argument is hardly plausible in this case. The alleged incidents of abuse took place as early as August 1984, yet the child was able to report them to the hearsay witnesses from May into September 1985. The trial was held on October 1, 1985. In the face of the child’s consistent repetition of her story over the four months immediately preceding trial, we doubt the lapse of a few weeks would have erased her memory.
D.
Abuse cannot be proved without the child’s statements. The Department’s final argument, which is to a great extent premised on the other three, is that hearsay evidence is the only evidence it can use to prove the alleged abuse. The Department reminds us of the obvious — people do not commit child abuse in public; the child is usually the only witness. As we have suggested, the solution is equally obvious — produce the child to testify.
V.
In summary, we hold the family court judge erred in admitting the child’s out of court statements as substantive evidence under a “child sexual abuse” exception to the rule against hearsay. Since the statements were manifestly prejudicial to Doe, the judgment must be reversed. We emphasize our holding does not preclude admission of child abuse hearsay under recognized exceptions to
Reversed.
Notes
See Schultz, The Sexual Abuse of Children and Minors: A Short History of Legal Control Efforts, in The Sexual Victimology of Youth (L. Schultz ed. 1980).
See, e.g., State v. Cooper,
See, e.g., State v. Whittier,