People v. Holloway

People v. Holloway, No. 80088

NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket No. 80088--Agenda 7--November 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JEROME
HOLLOWAY, Appellee.
Opinion filed June 19, 1997.

JUSTICE MILLER delivered the opinion of the court:
Following a bench trial in the circuit court of Cook County,
defendant, Jerome Holloway, was convicted of criminal sexual
assault (Ill. Rev. Stat. 1991, ch. 38, par. 12--13) and sentenced
to a prison term of six years. The appellate court reversed and
remanded for a new trial. 275 Ill. App. 3d 736. We granted leave to
appeal (155 Ill. 2d R. 315) and now affirm the judgment of the
appellate court.
Defendant was charged by indictment with having committed two
counts of aggravated criminal sexual assault against his daughter,
C.H., when she was 11 years old. Prior to trial, defendant objected
to the admission of hearsay statements made by C.H. to her cousin,
Erin Dalzell, when C.H. was 13 years old. The court ruled the
hearsay statements admissible under section 115--10 of the Code of
Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-
-10).
The evidence presented consisted of the testimony of C.H.,
Erin, and Dr. Sharon Ahart. Based on this evidence, the trial court
found defendant guilty of two counts of aggravated criminal sexual
assault and sentenced defendant to two concurrent six-year terms.
The court subsequently vacated its original judgments and entered
a finding of guilty of two counts of criminal sexual assault.
Defendant was again sentenced to two concurrent six-year terms.
The appellate court reversed the convictions and remanded the
cause for a new trial. 275 Ill. App. 3d 736. The appellate court
found that Erin's testimony concerning what she had been told by
C.H. should not have been admitted under section 115--10(a)(2) of
the Code of Criminal Procedure because C.H. was over the age of 12
when she told Erin of the alleged assault. 275 Ill. App. 3d at 737.
Section 115--10 states in relevant part:
"(a) In a prosecution for a sexual act perpetrated
upon a child under the age of 13 *** the following
evidence shall be admitted as an exception to the hearsay
rule:
(1) testimony by such child of an out of court
statement made by such child that he or she complained of
such act to another; and
(2) testimony of an out of court statement made by
such child describing any complaint of such act or matter
or detail pertaining to any act which is an element of an
offense which is the subject of a prosecution for a
sexual act perpetrated upon a child." Ill. Rev. Stat.
1991, ch. 38, pars. 115--10(a)(1), (a)(2).
The appellate court found the statute to be ambiguous. 275
Ill. App. 3d at 742-43. The court noted that the legislature
enacted section 115--10 to lend credibility and assistance to the
testimony of child victims by creating a hearsay exception. 275
Ill. App. 3d at 744. The court believed that section 115--10 allows
out-of-court statements of a sexual assault only when the child was
under the age of 13 at the time of the outcry. 275 Ill. App. 3d at
744-45. Thus, the appellate court held that Erin's testimony should
have been excluded from the trial. 275 Ill. App. 3d at 745. The
court reversed defendant's convictions and remanded the cause to
the trial court for a new trial. 275 Ill. App. 3d at 745. We
allowed the State's petition for leave to appeal. 155 Ill. 2d R.
315(a).

I. FACTS
Defendant traveled to Rosemont, Illinois, in November 1987 to
visit his former wife and their three children. At trial,
defendant's oldest daughter, C.H., testified that she came home
from school on a Thursday around 3 or 3:30 in the afternoon and
observed defendant sitting on a couch watching television. C.H. had
not seen defendant in over a year. Although C.H.'s younger twin
sisters were in the apartment complex, C.H. testified that they
were not in the unit at that time.
C.H. testified that she sat on the couch next to defendant.
According to C.H., defendant began to touch her thighs and buttocks
in an uncomfortable manner. C.H. moved to the floor. Defendant then
made derogatory comments about her mother and called C.H. "a bad
girl," telling her that she would pay for what she had done. C.H.
stated that defendant then slapped her twice.
C.H. testified that defendant tied her hands above her head
and stuck an object into her mouth. Defendant next pulled down his
pants. C.H. observed that defendant had a birthmark on his
buttocks. C.H. stated that defendant subsequently assaulted her
both vaginally and orally. When the telephone in the apartment
began to ring, defendant stopped and untied C.H. Defendant
allegedly threatened that he would hurt her even more and would
kill her sisters and mother if she ever told anyone what had
happened. C.H. indicated that the phone rang for anywhere between
2 and 10 minutes. Defendant told her to answer the phone. C.H.
could not recall who was on the telephone. C.H. stated that
defendant then watched her shower, making sure that she washed her
entire body. She claimed that she did not see her father during the
rest of his visit.
In August 1990, C.H., then almost 14 years old, hosted a
sleep-over party with her cousins Erin and Lindsey at her house.
C.H. testified that she was not very involved with her cousins at
the sleep-over. Upon prodding by Erin, C.H. told her cousins about
defendant's alleged attack nearly three years earlier. The cousins
convinced C.H. to tell her mother and stepfather. C.H. stated that
she then went to her parents' room, woke up her stepfather and told
him about the incident. C.H. claimed that, because of impaired
hearing, her mother did not wake up at that time.
Fifteen-year-old Erin testified that in August 1990, she
stayed overnight at C.H.'s house. She stated that C.H. appeared to
be "dazing off" and was very quiet. Erin stated that C.H. avoided
the issue when asked what was wrong. Erin testified that C.H.
eventually said that she was having nightmares about her father,
and that her father had touched her. Erin stated that she then told
C.H. to tell her mother. On cross-examination, Erin testified that
she was very close to C.H. between 1987 and 1990, and that C.H. had
never before told Erin of the incident nor, to her knowledge, had
C.H. awakened screaming during this time.
Dr. Sharon Ahart, a board eligible pediatrician, testified
that on August 16, 1990, C.H. told her that defendant penetrated
her both vaginally and orally. According to Dr. Ahart, C.H. denied
that anyone else touched her in her vaginal area. Dr. Ahart stated
that although she did not use the term "penetration" in her medical
report, she had found evidence of trauma to C.H.'s vagina that had
been caused by sexual penetration. This finding was based on C.H.'s
medical history, Dr. Ahart's own physical examinations, and C.H.'s
statements to her that she had been abused. Dr. Ahart could not
determine the object which had penetrated C.H. solely from her
physical examination.
Defendant presented the testimony of Lieutenant Lee Mayer of
the Rosemont police department. Mayer stated that he interviewed
C.H. on August 17, 1990, after she had complained to her parents.
Mayer testified that C.H. did not tell him that defendant touched
her legs or buttocks, called her mother derogatory names, or
watched her shower and told her to wash her entire body. Mayer
testified on cross-examination by the State that C.H. told him
during the interview that defendant put his penis in her vagina and
mouth.
Defendant testified next. He stated that he came to Illinois
in November 1987 to pursue a reconciliation with his former wife
and to see his children. He testified that he arrived in Chicago
around 7 or 7:30 p.m. on Thursday, November 15, and that his former
wife and their three children met him at the airport. Defendant
stated that, because of the time of his arrival, it was impossible
for him to have been at the apartment at 3 or 3:30 on that
afternoon, which is the time C.H. said the incident occurred.
Further, defendant stated that he went to the mall with C.H., his
twin daughters, and his niece Lindsey on Friday evening. At the
mall, the girls took a group picture at a coin-operated photo
booth. Defendant asserted that this photo proved that C.H. saw
defendant after the alleged incident. The photo was not dated and
C.H. claimed that she did not remember when the photo was taken.
Defendant testified that, after he returned from the mall with
his children, he and his ex-wife argued and defendant was asked to
leave the house. Defendant returned to the house for about five
hours on Sunday, November 18. After this, defendant spent a couple
of days with some of his friends before returning to California.
Defendant claimed that he was never alone with C.H. during his
November visit. According to defendant, he did not return to
Illinois until December 1990, after the charges had been filed
against him.
As additional evidence, defendant stated that the birthmark
C.H. claims to have seen during the assault was well-known in the
family because his grandfather had the same birthmark. The family
had allegedly discussed defendant's birthmark numerous times while
he was still married and defendant stated that he had shown the
birthmark to all of his children.

II. DISCUSSION
A. Outcry Admissibility When Declarant Over 12
In construing section 115--10, we must ascertain and give
effect to the intent of the legislature. Varelis v. Northwestern
Memorial Hospital, 167 Ill. 2d 449, 454 (1995). When possible, the
intention of the legislature should be determined from the language
of the statute. Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). In
the instant case, though the parties' interpretation of the statute
differs based on their respective definitions of the phrase "such
child" in sections (a)(1) and (a)(2), both defendant and the State
assert that the language of section 115--10 is clear and
unambiguous.
The State believes that "such child" in sections (a)(1) and
(a)(2) refers to a child who was under the age of 13 when a sexual
act was perpetrated regardless of the age of the child at the time
the child made an outcry. Defendant maintains that the phrase "such
child" in sections (a)(1) and (a)(2) refers only to the phrase
"under the age of 13" as used in section (a) and that the child,
therefore, must have been under the age of 13 at the time of the
outcry for the statements to be admissible under the hearsay
exception.
While the State's interpretation has merit, the defendant's
construction of the statute also is reasonable. When a statute can
be reasonably interpreted in two different ways, it is ambiguous.
People v. Jameson, 162 Ill. 2d 282, 288 (1994). Once a statute is
found to be ambiguous, it is appropriate to look beyond its plain
language to ascertain legislative intent. People v. Ross, 168 Ill. 2d 347, 352 (1995).
Section 115--10 was originally passed in response to the
difficulty in convicting persons accused of sexually assaulting
young children. This difficulty occurs because children's testimony
in sexual assault cases is often inadequate. Problems in proof may
result when the lesser developed cognitive and language skills that
children have hinder them in adequately communicating the details
of an assault. The legislature sought to create a hearsay exception
to allow into evidence corroborative testimony that the child
complained to another person about the incident.
During discussion of the bill, Representative Jaffe asserted
that the bill "deals with corroboration that a child has been
sexually molested and testimony that *** [the child] complained of
such an incident." 82 Ill. Gen. Assem., House Proceedings, March
25, 1982, at 87 (statements of Representative Jaffe). Additionally,
in speaking to an amendment to lower the age from children under
the age of 18, as originally introduced, to children under the age
of 13, as finally passed, Representative Stearney questioned
whether the age of 17 was "rather high" and whether there was any
need for corroboration of a 17-year-old. 82 Ill. Gen. Assem., House
Proceedings, March 25, 1982, at 88 (statements of Representative
Stearney).
It appears that the legislature, in providing for the
admission of evidence of outcry statements as exceptions to the
hearsay rule in certain cases, was concerned with the ability of
the victim to understand and articulate what happened during the
incident and the reluctance many victims have relating the details
of the incident at trial. Evidence of an outcry statement made to
another by a child under the age of 13 would corroborate the
testimony of a child who, by reason of age, may be reluctant or
unable to clearly express the details of the incident. The State's
interpretation would measure the applicability of the statute based
solely on the age of the victim at the time of the assault without
regard to the age of the child at the time of a subsequent outcry.
The importance of allowing hearsay testimony of an outcry, however,
is not dictated by the age of the victim when the assault occurs.
Instead, it is dictated by the victim's ability to adequately
testify to the alleged incident. We believe that the legislature
addressed these concerns by limiting the admission of hearsay
statements under section 115--10 to those statements made by a
child under the age of 13.
In 1993 and 1994, the legislature enacted amendments to
section 115--10(a). The 1993 amendment increases the list of crimes
perpetrated against young children in which the hearsay exception
is allowed. The 1994 amendment expands coverage to certain mentally
retarded persons--showing the legislature's desire to rectify
difficulties when the complainant has an impaired ability to
testify. See 725 ILCS 5/115--10(a) (West 1994). The State's
contention that these amendments show the legislature intended an
expansive statute allowing hearsay testimony when the declarant is
over the age of 12 reads the amendments too broadly.
We note also that our holding today is consistent with the
prior opinions of our appellate court. People v. E.Z., 262 Ill.
App. 3d 29, 34 (1994) (child must be under the age of 13 at the
time the statement is made in order to hold hearsay statements
admissible under section 115--10); People v. Bridgewater, 259 Ill.
App. 3d 344, 349 (1994) (age limit applies to the time the
statement was made as well as to the time when the abuse allegedly
occurred).
Following the decisions in E.Z. and Bridgewater, the
legislature attempted to pass an amendment that directly addressed
the age at which the outcry must occur in order to be admissible as
a hearsay exception. In 1995, the House of Representatives passed
a bill that would have amended section 115--10 to increase the age
of the victim of a sexual assault for which a hearsay statement
could be admitted from under 13 years of age to under 15 years of
age. 89th Ill. Gen. Assem., House Bill 160, 1995 Sess.
The bill also provided that the hearsay statement would not be
inadmissible because the child was 15 years of age or older when
the statement was made. 89th Ill. Gen. Assem., House Bill 160, 1995
Sess. The Senate amended the bill to make the statement admissible
only if the outcry was made within one year of the incident. 89th
Ill. Gen. Assem., House Bill 160, 1995 Sess. The legislature could
not agree on the amendment; therefore, the bill did not become law.
89th Ill. Gen. Assem., House Bill 160, 1995 Sess.
The legislature's attempt to amend section 115--10 could be
viewed as an attempt by the legislature to change the law in
response to the appellate court's decisions in Bridgewater and E.Z.
Because the legislature did not amend section 115--10 to address
the question of when an outcry statement can be admitted as a
hearsay exception, however, we are left with the statute in its
current form.
Based on the foregoing, we agree with the interpretation of
the language of the present statute reached by the appellate court
in Bridgewater and E.Z. If there is to be a change in the age in
which an outcry statement is to be made in order to be admissible
under section 115--10, it must be made by the legislature.
We further note that our holding is consistent with the
language of statutes adopted in many other states. See, e.g., Fla.
Stat. Ann. 90.803(23) (West Supp. 1997) (child must be age 11 or
under at time of statement); Ind. Code Ann. 35--37--4--6 (Michie
1994) (for hearsay statements to be admissible, the child must be
under the age of 14 at time of trial); Minn. Stat. Ann. 595.02(3)
(West Supp. 1988) (child must be under the age of 10 at time of
statement); Mo. Ann. Stat. 491.075 (West 1996) (child must be
under the age of 12 at time of statement); Ohio R. Evid. 807
(Anderson 1996) (child must be under the age of 12 at time of trial
or hearing); 42 Pa. Cons. Stat. Ann. 5985.1 (West Supp. 1996)
(child must be age 12 or under at time of statement). At least 12
other states, by statute, limit the admissibility of outcry
statements in a similar way.
For the reasons mentioned, we believe that the legislature
intended that for an outcry statement to be admissible as a hearsay
exception under section 115--10 the victim must have been under the
age of 13 at the time the statement was made.

B. Guilt Beyond a Reasonable Doubt
Defendant contends that, without the hearsay testimony
concerning the statements made by C.H., the evidence was
insufficient to prove him guilty beyond a reasonable doubt. During
the trial, the court found C.H.'s testimony credible and
believable, Dr. Ahart testified to evidence of trauma to C.H.'s
vagina, and Lieutenant Mayer corroborated the major aspects of
C.H.'s testimony. We find that this evidence, if believed by the
trier of fact, was sufficient to support a finding of guilt beyond
a reasonable doubt. Following People v. Taylor, 76 Ill. 2d 289,
309-10 (1979), we do not suggest any implication as to defendant's
guilt or innocence that would be binding on retrial. Our finding is
intended only to protect defendant from being subjected to double
jeopardy.

III. CONCLUSION
For the foregoing reasons, we find that hearsay statements
made by a declarant over the age of 12 concerning sexual abuse that
occurred when the declarant was under the age of 13 are not
admissible under section 115--10 of the Code of Criminal Procedure.
Additionally, we find that the evidence remaining after the
exclusion of the hearsay testimony warrants a new trial. We affirm
the decision of the appellate court reversing the circuit court and
remanding the cause to the circuit court for a new trial.

Affirmed.

CHIEF JUSTICE FREEMAN, dissenting:
I strongly disagree with the majority's overly restrictive
interpretation of section 115--10, an evidentiary rule primarily
designed to facilitate prosecutions of sexual acts committed
against children under 13 years of age by providing for admission
of those victims' outcry statements as statutory exceptions to the
hearsay rule. Under the majority's holding, section 115--10 now
automatically precludes the admission of a child's outcry statement
concerning sexual acts committed upon her when she was under 13
years of age, if she chances to reach 13 years of age either by the
time of her outcry or by the time for her trial testimony about
that outcry (see Ill. Rev. Stat. 1991, ch. 38, par. 115--10(a)(1)).
Quite anomalously, however, under the majority's interpretation,
her outcry statements could be admitted through the testimony of a
third person, if she does not testify, so long as she was under 13
years when she made her statements (see Ill. Rev. Stat. 1991, ch.
38, par. 115--10(a)(2)). In reaching its conclusion that the
statute is ambiguous, the majority merely pays lip service to the
established rules of statutory construction and struggles mightily
to rationalize unwarranted judicial legislation that serves only to
subvert clear public policies. The resulting interpretation of
section 115--10 is not only internally inconsistent, but illogical
in terms of the majority's own stated premises. Further, the
interpretation is likely to produce absurd results in prosecutions
of sexual acts perpetuated on pre-adolescent children. Accordingly,
I must dissent.
Section 115--10(a) states that "[i]n a prosecution for a
sexual act perpetuated upon a child under the age of 13, including
but not limited to prosecutions for violations of Section 12--13
through 12--16 of the Criminal Code of 1961," certain testimonial
evidence shall be admitted as an exception to the hearsay rule.
Ill. Rev. Stat. 1991, ch. 38, par. 115--10(a). Subsection (a)
essentially sets out the type or character of criminal prosecutions
in which the hearsay may be allowed. As such, the terms of
subsection (a) are not personally descriptive of the victim so much
as they characterize a particular type of criminal sexual conduct
which is the subject of prosecution under section 115--10.
When one reads the plain language of section 115--10(a)(1) and
(a)(2) then, in its entirety, giving the term "such child" its
ordinary meaning, it becomes clear that the term was intended
merely as a short-hand reference to the victimized individual. The
majority posits, however, that it is equally reasonable for the
expressly stated 13-year limitation concerning the victim's age
found in subsection (a) to apply, implicitly, at every juncture
where the term "such child" is employed within section 115--10. The
result then is that not only must the prosecution itself concern a
sexual act upon a child under 13 years, but the child must have
made the subject out-of-court statement as well as testify to it,
if she so chooses, before she reaches 13 years of age. Where an
enactment is clear and unambiguous, the court is not free to depart
from the plain language and meaning of the statute by reading into
it exceptions, limitations, or conditions that the legislature did
not express, nor is it necessary for the court to search for any
subtle or not readily apparent intention of the legislature. People
v. Woodard, 175 Ill. 2d 435 (1997). Notably, the two "consistent"
appellate decisions cited by the majority (Bridgewater, 259 Ill.
App. 3d 344, E.Z., 262 Ill. App. 3d 29) do not address the
necessary correlative restriction flowing from their holdings that
the child must also testify before reaching 13 years in order for
admission of the outcry.
In my view, transposing the crime victim's age limitation to
every instance where "such child" appears in section 115--10
represents an overly rigid and, therefore, less reasonable response
to the statute's plain language, to say nothing about the fact that
transposing the age limitation results in not one, but a trio of
implications. In my view, section 115--10, in this respect, is not
capable of two equally reasonable interpretations and is therefore
not ambiguous. Even assuming, however, that the provision is
ambiguous as drafted, I disagree with the conclusions drawn by the
majority from its review of the provision's legislative history to
support construction.
Section 115--10 was clearly enacted to put statutory teeth
into an accepted common law hearsay exception for outcry or
complaint by victims of rape. See People v. Leamons, 127 Ill. App.
3d 1056, 1068 (1984). The basis for admission of outcry evidence at
common law was to establish that the victim did, in fact, speak out
regarding the sexual assault, thereby refuting any presumption
arising from evidence of her silence that nothing untoward
occurred. See People v. Damen, 28 Ill. 2d 464, 472-73 (1963). There
was no fixed or definite period of time within which the complaint
must have been made, but a complaint was properly shown without
inconsistent or unexplained delay. Damen, 28 Ill. 2d at 473. Under
the common law rule, for the statement to be admissible, the
complainant had to be a witness and therefore subject to cross-
examination. Only the fact of the outcry or complaint was
admissible, but not the details of the offense or the identity of
the perpetrator.
Section 115--10 in its earliest form extended this common law
exception for outcry complaint, limited to the fact that it
occurred, to outcry complaint by child victims of sexual offenses
in general. This early form of the statute assumed that the child
victim would testify at trial and be subject to cross-examination.
The 1988 version of the statute, in effect at the time of trial in
the instant matter, allowed for admission of the child's outcry
through the testimony of a third person if the child did not
testify, and also allowed for admission of details concerning the
offense, as well as the identity of the perpetrator. Significantly,
the amended 1994 version, effective after the instant case, further
expanded the scope of the statute beyond prosecutions for sexual
offenses to a variety of offenses, and included as well acts
committed against certain institutionalized mentally retarded
persons.
Legislative debate surrounding the enactment of section 115--
10 indicates that the rationale which supports the traditional
common law hearsay exception in rape cases also supports section
115--10. See 82 Ill. Gen. Assem., House Proceedings, March 25,
1982, at 87 (statements of Representative Jaffe) (bill "deals with
corroboration that a child has been sexually molested and testimony
that *** [she] complained of such an incident"). That is, such
hearsay is admissible to corroborate the fact of an assault as
subsequently reported.
The majority, nonetheless, seizes upon a single comment by
Representative Stearney as an indication that the intended
significance of allowing such hearsay is for the limited purpose of
corroborating the trial testimony of young child victims. See slip
op. at 6 ("Representative Stearney questioned whether the age of 17
was `rather high' and whether there was any need for corroboration
of a 17-year-old"). There is absolutely no indication, however,
that Representative Stearney's question was directed towards the
victim's age at the time of her trial testimony rather than her age
at the time that the sexual acts were perpetuated on her. 82 Ill.
Gen. Assem., House Proceedings, March 25, 1982, at 88 (statements
of Representative Stearney). Neither is there indication that the
Representative's question was directed to the age of the victim as
a hearsay declarant. (Actually, there is negative indication that
a declarant's age was under discussion.) In fact, it should be
presumed that Representative Stearney's question concerned the age
of the victim at the time of the sexual offense since that was the
aspect of the statute which actually was amended as a result of the
debate.
That Representative Stearney might question the need for
corroboration under the statute in the case of a individual
victimized at age 17 comports with the hearsay's significance as
corroborative evidence of a sexual offense perpetuated sometime
previously on a young child. Very young children are often too
frightened to report or testify about such offenses, which are
oftentimes committed by relatives or friends. Cf. People v. Soler,
228 Ill. App. 3d 183, 199 (1992); People v. Foley, 206 Ill. App. 3d
709, 716 (1990). Society now recognizes that sexually abused
children are often secretive about the abuse they suffer, and that
they may be severely conflicted concerning the abuse and delay
reporting it for considerable periods of time. Cf. People v.
Dempsey, 242 Ill. app. 3d 568, 579 (1993); People v. Pollard, 225
Ill. App. 3d 970, 976 (1992); People v. Wasson, 211 Ill. App. 3d
264, 270 (1991). A young child is often likely not to disclose such
abuse until years after it occurs or begins, thereby causing
questions to arise regarding the veracity of the child. Admitting
an outcry statement by such a child, provided the prosecution
proves that it is reliable and trustworthy, in the process
envisioned by section 115--10(b) allows the prosecution an
opportunity to corroborate sexual abuse against a young child that
might have occurred sometime previous to the victim's unfortunately
tardy report to adults or authorities.
Representative Stearney could be expected to recognize that
the same difficulties of proof would not more likely attend the
sexual abuse of an individual aged 17 years. A 17-year-old
individual, as opposed to a child under 13 years old, is more
likely to immediately report commission of such acts to adults and
authorities, thereby generating the likelihood of other forms of
corroborative evidence (witnesses, physical evidence) besides
hearsay. Thus, the admissibility of hearsay statements in
prosecutions of sexual acts committed against older teens is a less
critical matter.
Contrary to the majority, I do not read the legislative
commentary cited as reflecting necessarily any underlying concern
with the ability of the victim to adequately testify at trial. Slip
op. at 6. In my view, also, section 115--10(a)(2) clearly manifests
the legislature's intent that evidence of a victim's outcry serve
a purpose beyond corroboration of a possibly inarticulate and
reluctant young child's trial testimony. Such intent is manifest
because subsection (b) allows admission of testimony concerning a
victim's outcry regardless of whether she provides it herself. The
majority faults the State's interpretation for failing to measure
the statute's applicability with regard to the age of the child at
the time of a subsequent outcry. Yet, the majority measures the
statute's applicability with regard to the age of the child at the
time of trial though the child need not testify, and then fails to
explain any significance for the arbitrary age requirement of
"under 13 years" it imposes on the child at the time of her outcry.
I disagree with the majority's view that the importance of
allowing hearsay testimony of an outcry or complaint of a sexual
offense is dictated necessarily by the victim's ability to
adequately testify at trial. Slip op. at 6. The importance of
allowing hearsay testimony of an outcry or complaint of a sexual
offense is dictated by the victim's ability to adequately and
immediately report the offense. This was the important
consideration underlying this hearsay exception at common law, and
I see no indication of its change with enactment of the exception
into statutory law.
Furthermore, rather than facilitate prosecutions, the
majority's restrictive interpretation of section 115--10 is
conducive of absurdities. For example, due possibly to judicial
delay or outright procedural manipulations by a defendant, a child
could be precluded from providing testimony of an outcry she made
when she was under 13 years old, if she happens to turn 13 years
old by the time the case is tried or retried following an appeal.
In sum, in cases of children and teens sexually victimized
when under 13 years of age, the fact that they were not likely to
have adequately and immediately reported such offenses is an
important concern which I believe the legislature considered in
providing, statutorily, for admission of these types of outcry
statements. The statute was designed to admit this evidence,
regardless of either the victim's age at the time of trial or the
fact of her specific chronological age at the time of her outcry,
provided that the court finds in camera that the time, content, and
circumstances of her outcry provide sufficient safeguards of
reliability, and she either testifies then or there is other
corroborative evidence of the criminal act (see Ill. Rev. Stat.
1991, ch. 38, par. 115--10(b)).
Any issue regarding the trustworthiness of the hearsay
statements made by a child victim after she turns 13 years old is
addressed by the proviso that testimony regarding the hearsay shall
only be admitted if: (1) the court finds in a hearing conducted
outside the presence of the jury that the time, content, and
circumstances of the statement provide sufficient safeguards of
reliability; and (2) the child either testifies at the proceedings,
or is unavailable as a witness and there is corroborative evidence
of the act which is the subject of the statement. These reliability
criteria assure admission of the out-of-court statements in
compliance with the strictures found in Idaho v. Wright, 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990) (holding relevant
factors are the totality of circumstances surrounding the making of
the statement and which render the declarant particularly worthy of
belief).
In conclusion, I do not agree with the majority's apparent
view that the legislature intended for this hearsay exception to be
limited to cases where third persons testify to the victim's outcry
statements made when she was under 13 years of age, or where she
happens to be under 13 years of age at the time that she testifies
to them. Given the prevailing environment concerning these crimes
against children, and what we as a society have learned about these
forms of childhood victimization, the only reasonable
interpretation of the statute is that it means what it says and no
more. This court should not turn a blind eye to the nature of
childhood sexual abuse and prevailing public policies concerning
such offenses.