Document Type

Article

Disciplines

International Law

Abstract

It is axiomatic that child sex abuse threatens the vitality of our communities. In recognition of this problem, "[t]he 1980s witnessed a significant increase in the prosecution of child abuse, particularly sexual abuse."2 Whether altruistic or motivated by the dissatisfaction of the constituency, "[ljegislators and judges in several Western countries took up the call for reform and amended time-honored rules of evidence and procedure to facilitate children's testimony and make the court process less trying for young witnesses."3 There are many reasons, however, that a child may not be capable of testifying in the courtroom, and even if deemed competent to testify, compelling a child to take the stand may be injurious to the child's psyche.' In these instances, in order to ensure justice to a legitimately aggrieved child, it may be necessary to allow certain evidence into court that would otherwise be inadmissible.

Although not an exclusive remedy, the analysis of this article will focus on hearsay exception rules in the United States and other foreign jurisdictions. Hearsay exceptions present a delicate problem in that evidence admitted under a hearsay exception has the potential to severely prejudice an accused sex offender if the evidence is unreliable. Contrarily, hearsay exceptions often serve as the only mechanism to admit credible evidence that a child has been abused.

This article will attempt to synthesize rules from myriad jurisdictions and define a standard that most effectively weighs the equities of all interested parties to produce consistent and just results. The second section of the paper will explore the problem of child sex abuse in the United States and other Anglo-American countries, and more specifically, discuss the inherent complexities of pursuing legal action in child sex abuse cases.' In the third and fourth sections, a survey will be conducted of the hearsay admission rules in various jurisdictions, foreign and domestic.' This section will illustrate the three major bodies of law that control the admission of hearsay evidence in child sex abuse cases. First, some jurisdictions have specific statutes relating to hearsay evidence in child sex abuse cases.'" Second, some jurisdictions use a catch-all or residual exception to the traditional hearsay rules to admit hearsay in child sex abuse cases." Lastly, some jurisdictions have no specific statutory scheme and rely primarily on the common law. In the analysis section, the strengths and weaknesses of the current rules will be evaluated and a proposal will be made for a uniform hearsay exception statute.

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