Court Refines Washington Law for
Admitting Medical Purpose Hearsay and Prior Abuse
The Washington Court of Appeals has recently addressed the admissibility of two kinds of evidence often seen in child sex abuse prosecutions: medical purpose hearsay and prior sex abuse of the child by someone other than the defendant. The court did so to guide the retrial of State of Washington v. Kilgore, 26 P.3d 308 (2001).
Medical Purpose Hearsay
After a ten-year-old girl told her mother the defendant had raped her, a nurse practitioner examined the girl at a hospital. The girl told the nurse she knew she was there because the defendant had molested her. The nurse told the girl she was looking at her body to make sure it was healthy. The girl asked the nurse for medical advice.
Division Two of the Court of Appeals found the girl's statements to the nurse admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. It rejected a defense argument that the prosecution had to show the girl spoke out of a desire for treatment-the motive thought to guarantee reliability for such statements. The court said that that motive may be inferred, except when the child is very young or says she does not know the function of the medical personnel to whom she speaks.
The court thus distinguished State v. Carol M.D., 89 Wn.App. 77 (1997). There, the child denied knowing what a therapist did. Her statements to the therapist were held inadmissible.
Prior Sex Abuse
Another person had pleaded guilty to digitally penetrating the girl. The defense offered that in evidence. It did so to rebut the inference the girl's sexual knowledge came from the defendant's molesting her.
The court noted that the rape shield law does not exclude such evidence. It then discussed at length how courts should balance the probative value of such evidence against its prejudicial effect, to decide whether to admit it. Among the factors the court identified were the child's age, the graphic detail of her sexual statements, and whether she had any motive falsely to accuse the defendant.
Copyright © 2003 David S. Marshall
