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Testimony by Children in Sexual Abuse Cases

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A child under the age of 12 may be permitted not to testify, but have their prior out of court statements admitted at trial.

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By Attorney Elisabeth K.H. Pasqualini, Sex Crimes Defense Attorney, Harrisburg, PA

Under the Tender Years Hearsay Act, an out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in the provisions relating to criminal homicide, assault, kidnapping, sexual offenses, burglary and other criminal intrusion, and robbery, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if the court finds, in an in camera hearing, that the evidence is relevant and that the time, content, and circumstances of the statement provide sufficient indicia of reliability, and the child either testifies at the proceeding or is unavailable as a witness.

A Child May Be "Unavailable"

In order to make a finding that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child's ability to reasonably communicate. In making this determination, the court may observe and question the child either inside or outside the courtroom and hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting. 

What does "Unavailable" Mean?

The evidence was sufficient to support the trial court's determination that a child sexual assault complainant was unavailable to testify as a witness such that the child's prior out-of-court hearsay statements could be admitted under the Tender Years Hearsay Act; the child's foster mother testified that the child had nightmares for several nights after court appearances, that the child became anxious and hid her face when she learned she had to attend court proceedings, and that simply being outside of the courthouse had a negative effect on the child.  Unavailable does not mean that the child is physically not present.  It may mean that the child may suffer severe psychological trauma if required to testify in court.

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