The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases

By Mosteller, Robert P. | Law and Contemporary Problems, Winter 2002 | Go to article overview

The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases


Mosteller, Robert P., Law and Contemporary Problems


Robert P. Mosteller (*)

I

Introduction

The purpose of this symposium is to examine the treatment of children as victims and witnesses in criminal trials, most frequently involving sexual abuse, over the last quarter of the twentieth century and, from that experience, to draw lessons. In this essay, I examine what we have learned about the hearsay exception for "statements for purposes of medical diagnosis or treatment." (1) Earlier, I studied this exception as applied in child sexual abuse prosecutions and found it being stretched beyond the bounds of its theoretical justification. (2) In this essay, I reexamine our national experience with the exception over the past decade and find both a maturation of the exception and at least a partial disintegration.

Briefly, the hearsay exception admits statements made by a person for the purpose of either receiving treatment or allowing a doctor to diagnose without any expectation of treatment. (3) The statements may concern the individual's present symptoms, medical history, or the general character of the condition or injury that prompted the medical visit. To be admissible, the statements must be "reasonably pertinent to diagnosis or treatment," apparently from the perspective of either the declarant or the medical expert. Although central to the exception, no definition of the term "medical" is provided in the rule itself or in the accompanying commentary. Finally, the availability or unavailability of the person who made the statement is irrelevant to admissibility.

The exception is applied in a relatively straightforward and uncontroversial manner in typical civil cases involving accidents, injuries, sickness, and treatment. Its use is far more debatable as applied in child sexual abuse cases when one of the key issues is whether a child's statements describing sexual abuse, particularly statements identifying the abuser, are admissible.

To illustrate how the use of the exception can, in my judgment, be very troubling, consider the following hypothetical case:

A four-year-old female child, in the care of a single mother and her current live-in boyfriend, is found by social workers to be malnourished and poorly clothed. She is also apparently emotionally withdrawn. A physical examination reveals irritation in the genital area that is suggestive of sexual abuse several days earlier, but could also be fully explained in other ways. When asked by the examining pediatrician about her genital area, the child responds with very little information and the best that can be determined is that "it hurt." Because of the conditions of her care, the child is temporarily taken from her mother's custody. While in emergency care, the child is interviewed several times by social workers trying to determine whether sexual abuse occurred. She provides no additional information that would suggest sexual abuse. The interviews are not recorded.

Investigators continue to suspect abuse because of an unproven but reported incident of sexual abuse of a child two years earlier by Buddy, the mother's live-in boyfriend. The child is sent to a pediatrician who works regularly with the Department of Social Services in detecting and treating sexual abuse. The doctor is briefed on all the information in the case and the suspicions regarding Buddy. He conducts no physical exam, because the symptoms are no longer present. Without any witness present or any recording made, and with very few notes, the doctor interviews the child. He reports that the child told him that "Buddy hurt her bottom with his pee pee," writing this quotation in his notes. The child never repeats a statement of this sort in later interviews.

Buddy is charged with child sexual abuse. The child is not called as a witness by the state; she is found incompetent to testify because she does not understand the oath. The trial judge rejects the defense's objection based on hearsay and Confrontation Clause grounds, and allows the pediatrician to testify to the child's statement to him under the "medical examination exception," the doctor explaining that the inquiry was pertinent to the child's placement in foster care, away from Buddy.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.