"She said what?": what to do in civil domestic violence proceedings with child hearsay.

• Author: Cosentino, Amy L.
• Position: Florida

A nine-year-old child goes to her dance class and mentions to her ballet teacher that she "gives her daddy a towel after he takes a shower." The teacher finds this odd and mentions it to the child's mother. The mother questions the child about it on the way home from class, asking the child what the father is wearing when she gets him the towel. According to the mother, the child becomes embarrassed, covers her face with her hair, and says that he is naked. The child then breaks down, shakes, and screams. The child ultimately discloses to her mother that 1) her father told her "this is their secret" and she should not tell anyone; 2) her father said, since he is a police officer and that he "is the law," he will take things away from her if she tells their secret; and 3) the father made her scratch his penis, feet, and buttocks. The mother calls the child's therapist and reports what the child told her. The Department of Children and Families (DCF) consequently investigates and the child alleges sexual abuse to the investigator while being questioned out of eye and earshot of the mother. DCF recommends the mother file for a domestic violence injunction, as the child is scheduled to be with the father in a few days. An ex parte temporary injunction is subsequently entered and a return hearing is scheduled in the immediate future.

There is no physical evidence of the alleged abuse. When interviewed by an investigator from the Department of Health Children's Medical Services Child Protection Team (CPT), the child reports that her father would call her into his bedroom where he would be lying naked on the bed. The child states she would often cover her eyes because "it was nasty" and she did not want to look. The father would make the child scratch and rub his penis, his feet, his "butt," and then his stomach. The child also describes the appearance of her father's naked body in detail. CPT notes that the child is able to provide clear and consistent details of the abuse.

The mother then has the child evaluated by a psychologist specializing in child sexual abuse. The psychologist interviews the child, has the child draw the alleged abuse, and observes the child playing with anatomically correct dolls while talking about the events in question. The psychologist ultimately concludes the child is exhibiting signs of sexual abuse and is willing to testify to that at future hearings.

The child's mother has requested that the child not testify at any hearings for fear of the potentially irreversible psychological damage the child may suffer. The mother is seeking to have the child's out-of-court statements admitted as evidence at the domestic violence return hearing that the father has committed sexual abuse against the child.

F.S. [section] 90.803(23)

Admission of the out-of-court statements made by a child with a physical, mental, or developmental age of 11 or younger describing, among other things, an act of sexual abuse against the child are governed by F.S. [section] 90.803(23), (1) which is an exception to Florida's evidentiary statute governing hearsay. (2) Section 90.803(23) provides for circumstances in which otherwise inadmissible out-of-court statements made by an alleged child victim (3) may be admitted into evidence. This statute allows such statements to be used as substantive evidence of the accused's (4) guilt or of the acts of abuse at an evidentiary hearing provided that 1) the trial court finds the statements are reliable, and 2) either the child testifies at trial, or if the child is deemed unavailable, that the court finds "there is other corroborative evidence of the abuse or offense." (5)

This article addresses how Florida courts have treated the admissibility of child victim hearsay statements under F.S. [section] 90.803(23), specifically exploring and analyzing each element of this statute in turn in light of the introductory fact pattern.

When the Child's Out-of-court Statements are Reliable and Trustworthy

Before testimony of a child's out-of-court statements can be admitted, the court is required to find that the time, content, and circumstances of the statements provide sufficient safeguards of reliability. (6) Section 90.803(23) sets forth some of the criteria that a trial court should use in making this reliability determination, which includes the mental age, physical age, and maturity of the child; the nature and duration of the abuse or offense; the relationship of the child to the offender; and the reliability of the victim. (7) However, the statute makes clear that this list is not exhaustive, and a court can consider any other factor in making its determination. (8) As noted by the court in State v. Townsend, 635 So. 2d 949 (Fla. 1994), additional factors that may be considered when making a determination as to reliability of the child victim out-of-court statement(s) include, but are not limited to:

a consideration of the statement's spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation. (9)

In Zmijewski v. B'Nai Torah Congregation of Boca Raton, Inc., 639 So. 2d 1022 (Fla. 4th DCA 1994), the Fourth District Court of Appeal summarized all of the factors of [section] 90.803(23) by stating "a court is to use the totality of the circumstances in determining reliability" of a child victim's out-of-court statement. (10) The court must make specific findings of reliability of the hearsay statements, as prescribed by [section] 90.803(23), as failure to do so "ignores the clear direction of the statute." (11)

Considering the introductory fact pattern, a court would likely find the totality of the circumstances replete with signs that the child's hearsay statements are reliable. Some of the characteristics that lend themselves to a finding of reliability include the spontaneity of the statements, (12) the child-like description of the events, (13) the child's emotional reaction to the questions, (14) and the fact that the child reported the incident to numerous individuals. (15) Once there is a finding of reliability, the court must then turn its attention to whether the child is to testify at trial or be found to be "unavailable."

Child Testimony

A child...