Crying out for Change: A Call for a New Child Abuse Hearsay Exception in New York State
Fell, Christopher T., Albany Law Review
According to a 2000 report by the U.S. Bureau of Justice Statistics, nearly seventy percent of all sexual assaults in the country are committed against children. (1) In 1990, a U.S. Department of Health and Human Services task force declared child sex abuse a national emergency. (2) While the age with the greatest proportion of assaults reported was fourteen, more than half of all child victims were under twelve. (3) Of those children under age twelve, four-year-olds were at the greatest risk. (4) According to UNICEF, "5 [to] 10 percent of girls and up to 5 percent of boys [in industrialized nations] suffer penetrative sexual abuse." (5) Up to three times that amount experience some other type of sexual abuse. (6)
In 2007, Child Protective Services (CPS) in the United States investigated 3.2 million cases of suspected child maltreatment. (7) There were 164,831 maltreatment cases reported to New York State Child Protective Services in 2009. (8) 51,348 of those cases were indicated, (9) which means that there was enough evidence to continue the investigation because an investigator believed that the allegations were not unfounded. (10)
Victims of child abuse (11) often do not disclose immediately after the abuse has taken place. (12) Sometimes, victims of abuse keep the events to themselves for many years. (13) For example, in a 1992 report, the National Victim Center & Crime Victims Research and Treatment Center found that only sixteen percent of sexual assault victims ever report the assault to the authorities, or fail to provide a full report. (14) Frequently, the child victim is unaware of the wrongful nature of the conduct or that what has occurred is not "normal." (15) The victim also often experiences feelings of confusion (16) and guilt, a desire to forget the incident, a fear of not being believed, and in many instances, may remain silent as a result of intimidation by the abuser. (17) If victims do eventually disclose the abuse, the disclosure is central to the prosecution's case: "Abusers may leave no physical marks on their victims, and children often do not resist outwardly or physically. Accordingly, there is usually little physical evidence to corroborate the child's allegations, and the child-victim is often the only witness [to the crime]." (18) So if a child discloses the abuse, testimony about what the victim said, to whom it was said, when it was said, and how the victim appeared while saying it, are important for establishing a strong case. (19) However, testimony about the disclosure is generally regarded as hearsay, and hearsay is typically inadmissible unless it fits within a hearsay exception. (20)
Children are unlike any other witnesses or victims. (21) A delayed disclosure and the reason for the delay are part of the story describing an incident of child abuse; each case needs to be told in completion in order for the jury to get a full and fair picture at trial. (22) Victims are often the only witnesses to the crime. (23) Although New York State has a prompt outcry exception to the hearsay rule, which allows the "fact of a complaint" to be admitted into evidence, (24) the exception is insufficient to adequately protect child victims and effectively prosecute perpetrators of child abuse. In order for a child's entire story to be told, this exception must be broadened to include delayed disclosures, as well as the contents of the disclosure statement.
This article proposes a change to the New York State law concerning outcries of abused children. Part II discusses current New York State law about disclosures made by child victims of sexual abuse. Part III discusses child abuse disclosure law in other United States jurisdictions and how it can inform advances in New York State law. Finally, Part IV proposes a new law for New York State that is consistent with the jurisprudential trend in the United States and will more adequately protect child victims from prejudicial exclusion of evidence in sex abuse trials. …