Child sex abuse cases are often the most troubling we encounter in the criminal justice system. Few crimes seem to rattle our moral, ethical, and emotional foundations more than those which impact upon, and often forever destroy, a child’s innocence.
In fact, in recent years, we have done everything possible to protect children in those unfortunate situations where an accused abuser is brought to trial. For example, alleged child victims of sexual abuse may testify via one-way closed circuit television (see 725 ILCS 5/106B—5 (West 1996)), and their hearsay statements may be readily admitted through the testimony of other witnesses (see 725 ILCS 5/115—10 (West 1996)). Moreover, courts routinely admit evidence of an accused’s prior uncharged misconduct with the complainant for purposes of demonstrating a relationship with the victim. See People v. Jahn, 246 Ill. App. 3d 689, 705-06 (1993) (prior sexual activity with complainant may be used to show that the parties had a continuing or intimate relationship even though such facts are not in issue).
While the routine use of each of these provisions has been upheld (see, e.g., Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990) (testimony of child victim taken via closed circuit television does not offend Confrontation Clause); Idaho v. Wright, 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990) (hearsay statements of child victim may be admitted provided they are accompanied by particularized guarantees of trustworthiness); Jahn, 246 Ill. App. 3d at 706 (admission of defendant’s prior uncharged misconduct with victim for purposes of establishing continuing sexual relationship approved)), courts still must proceed cautiously when they are used.
In our rush to shield the youngest members of society from reliving what, if proven, are unquestionably the most traumatic events in their short lives, we have gradually begun to impinge upon the fundamental due process rights of criminal defendants.
As will be seen in the coming comments, the reception of evidence in a child sex abuse trial via closed circuit television, the admission of an alleged child victim’s hearsay statements, and the introduction of an accused’s prior uncharged misconduct combine to bring us perilously close, in many cases, to denying a defendant his constitutional right to a fair trial.
By emotionally implementing the rules which govern child sex abuse trials because of the desire to spare a child complainant any more emotional trauma, courts too often straddle the line between a fair trial and an unconstitutional trial.
The purpose of this article is not to advocate against the present evidentiary scheme, for it is a detailed, well-thought method for addressing the particular vagaries of cases where the alleged victims of sexual crimes are children. Rather, this article emphasizes that the evidentiary scheme must be rigorously enforced by the courts of this state to effectuate its purpose while honoring well-established principles of due process.
As the following discussion demonstrates, we must be constantly vigilant when we conduct trials and appellate reviews of child sex abuse cases because no matter how vile an accused’s acts may prove to be, they are dwarfed by the greater systemic evil which would result from a rash of unconstitutional trials.
The Child Shield Act
In Illinois, the taking of an alleged child sex abuse victim’s testimony via closed circuit television is governed by section 106B—5 of the Code of Criminal Procedure (725 ILCS 5/106B—5 (West 1996)), more commonly known as the Child Shield Act. The Child Shield Act provides that in a prosecution for various sex abuse cases involving children under 18, the testimony of the child complainant may be taken by means of one-way closed circuit television if it is taken during the proceeding (725 ILCS 5/106B—5(a)(1) (West 1996)), and the trial court "determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional trauma such that the child cannot reasonably communicate or that the child will suffer severe emotional distress that is likely to cause the child to suffer severe adverse effects" (725 ILCS 5/106B—5(a)(2) (West 1996)).
Thus, at the 106B—5 hearing, the trial court must determine whether a child complainant will be unable to testify in open court in front of the defendant because of the emotional trauma the child will suffer when she faces the accused. In other words, the trial court must determine whether it is acceptable to trade away some of the defendant’s confrontation rights for the child’s emotional protection. It is this determination by the trial court that is crucial to the operation of the Child Shield Act.
The following brief review of Supreme Court precedent demonstrates that the Child Shield Act undoubtedly comports with the Confrontation Clause of the Federal and Illinois Constitutions. However, it is also clear that the Child Shield Act can only be constitutionally applied when the trial court makes a meaningful inquiry at the 106B—5 hearing.
In Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990), the Court examined a Maryland statute which permitted an alleged child victim of sexual abuse to testify via closed circuit television. The Maryland statute and the Child Shield Act mirror each other in every significant provision. Compare 725 ILCS 5/106B—5 (West 1996), with Md.Cts. & Jud.Proc.Code Ann. § 9—102 et seq. (1989). The Maryland statute allowed closed circuit television to be employed if the trial court determined that "testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate." Md.Cts. & Jud.Proc.Code Ann. § 9—102(a)(1)(ii) (1989). The Court began by noting that the Confrontation Clause does not guarantee criminal defendants the "absolute right to a face-to-face meeting with witnesses against them at trial." (Emphasis in original.) Craig, 497 U.S. at 844. Although Maryland’s statute denied defendants the right to meet their accusers face to face, it preserved the remaining elements of the federal confrontation right: "The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies." Craig, 497 U.S. at 851. Thus, the Court held that because the Maryland statute provided for "oath, cross-examination, and observation of witness’ demeanor," it satisfied the Confrontation Clause despite its substitution of closed-circuit testimony for live in-person testimony in an open courtroom atmosphere. Craig, 497 U.S. at 851.
As with the Child Shield Act, the Maryland statute required a hearing by the trial court to determine whether closed circuit television testimony was necessary. With respect to this hearing, the Court held that, "[t]he requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television is necessary to protect the welfare of the particular child witness who seeks to testify." Craig, 497 U.S. at 855.
Additionally, consistent with due process, trial courts had to determine that the child witness "would be traumatized, not by the courtroom generally, but by the presence of the defendant." Craig, 497 U.S. at 857. The Court declined to enunciate the minimum standard of emotional trauma necessary to trigger the closed-circuit procedure; however, the Maryland statute clearly satisfied constitutional scrutiny because it required that a child witness suffer "serious emotional distress such that the child cannot reasonably communicate." Craig, 497 U.S. at 856, quoting Md.Cts. & Jud.Proc.Code Ann. § 9—102(a)(1)(ii) (1989). Thus, as long as trial courts make case-specific findings of necessity, "the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case." Craig, 497 U.S. at 860.
The Child Shield Act was initially found unconstitutional in People v. Fitzpatrick, 158 Ill. 2d 360, 367-68 (1994), because at that time, the Illinois Constitution unambiguously guaranteed defendants the right to meet a witness face to face. See Ill. Const. 1970, art. I, §8. Shortly after Fitzpatrick was filed, Illinois voters, on November 8, 1994, approved a constitutional amendment. See People v. Dean, 175 Ill. 2d 244, 254 (1997). The amendment changed the language of Illinois’ Confrontation Clause to comport with that of the Federal Constitution; defendants in Illinois now are guaranteed the right "to be confronted with the witnesses against" them. Ill. Const. 1970, art. I, §8, amended November 8, 1994. The legislature then repealed the Child Shield Act invalidated in Fitzpatrick and reenacted a substantially similar version. See Dean, 175 Ill. 2d at 254-55. When applying the principles enunciated by the Craig Court to the Child Shield Act and the recently-amended Illinois Constitution, it is abundantly clear that the Child Shield Act passes constitutional muster.
However, it is equally obvious that the linchpin to the Child Shield Act’s constitutional application turns on the effectiveness of the 106B—5 hearing. Consistent with the Supreme Court’s dictates, evidence at the 106B—5 hearing must demonstrate that because of the presence of the defendant and not the courtroom generally, a child complainant would suffer either emotional distress such that he could not reasonably communicate or would suffer severe adverse effects from testifying. See 725 ILCS 5/106B—5(a)(2) (West 1996).
Thus, at the 106B—5 hearing, a trial court must accurately determine that the alleged child victim’s emotional trauma and accompanying inability to reasonably communicate will be caused by the defendant, not by the court, shyness, embarrassment, or a general emotional outpouring. It is incumbent on the State, as the party with the burden of proof, to present sufficient evidence that the appearance of the alleged victim before the accused will render the taking of testimony impossible. Anything less, and any uncertainty as to whether the defendant or the courtroom generally will cause the emotional trauma, is not enough to impede as fundamental a right as that of confrontation. See generally, Coy v. Iowa, 487 U.S. 1012, 1015-1020, 101 L. Ed. 2d 857, 108 S. Ct. 2798, (1988) (discussing the roots of Confrontation Clause rights dating back to Roman and English law).
Admission of a Child Victim’s Hearsay Statements
A second evidentiary issue which constantly surfaces in child sex abuse cases involves the admission of child complainants’ hearsay statements. In Illinois, section 115—10 of the Code of Criminal Procedure (725 ILCS 5/115—10 (West 1996)) creates a statutory exception to the hearsay rule and allows for the admission of statements of a child victim of alleged abuse. The Supreme Court has found the admission of such hearsay to be constitutional, so long as the hearsay statements satisfy "particularized guarantees of trustworthiness." Wright, 497 U.S. at 818-23, 111 L. Ed. 2d. at ___, 110 S. Ct. at 3148-51. In other words, section 115—10 is not a firmly rooted exception to the hearsay rule and must accordingly be strictly enforced. People v. Bridgewater, 259 Ill. App. 3d 344, 348 (1994).
When determining the reliability of a child’s statements for section 115—10 purposes, courts must examine many factors. According to the Wright Court, some of these factors include whether the statements were spontaneously and repeatedly uttered; the mental state of the child; the use of unexpected terminology by a child of similar age; and a lack of motive to lie. Wright, 497 U.S. at 822-23. Additionally, courts in Illinois have considered, inter alia, the alleged victim’s physical condition, his relationship with the accused, and the nature and duration of the alleged abuse. Jahn, 246 Ill. App. 3d at 701; see People v. Zwart, 151 Ill. 2d 37, 43-46 (1992); People v. D.R.R., 258 Ill. App. 3d 282 (1994); People v. C.H., 255 Ill. App. 3d 318 (1993); for a thorough discussion of section 115—10, see P. Baroni and H. Smith, Illinois Criminal Procedure Rule 115—10, 10 DCBA Brief 46 (1997).
Although the admission of such hearsay statements is constitutional, courts must guard against the undue repetition of such statements. Imagine a hypothetical case where a 12-year-old complainant testifies that she was abused by the defendant. Her trial testimony, albeit by closed-circuit television, is detailed, credible, and heart-wrenching. The State then presents two police officers who testify that the child told them that she was abused by the defendant. The victim’s mother then testifies to a conversation she had with her daughter about the abuse perpetrated by the defendant. The victim’s adult sister testifies that she was told about the abuse by her younger sibling as they drove to the store. Finally, a DCFS investigator relates the details of the alleged abuse, as told to her by the alleged victim during an interview. All of this testimony is admissible under section 115—10. Yet, in addition to hearing the credible and emotionally charged testimony of the 12-year-old complainant, the jury heard her story repeated by other, perhaps more, credible witnesses a total of five times. This is a mountain of evidence from under which few defendants, even those with the most skilled counsel, could escape. As with many real cases, in this hypothetical situation, it appears that "the scales of justice have been unfairly tilted by the sheer weight of repetition." People v. Byron, 269 Ill. App. 3d 449, 453 (1995). In no other abuse case are the rules of hearsay evidence so titled in favor of the alleged victim.
As the foregoing illustrates, courts must carefully protect against undue repetition of hearsay evidence in child abuse cases. Simply because a tool such as section 115—10 exists does not mean that it can and should be overused and abused. Defendants’ due process rights must be respected when evidence is admitted under section 115—10; one way to denigrate these rights is to allow for the cumulative admission of hearsay testimony which only enrages the jury because they hear the tale of a defendant’s alleged abuses ad nauseam.
Additionally, repetition of criminal allegations tend to bathe the allegations in the warm glow of truth because many of the repetitive hearsay statements are the products of the State’s investigative process. For example, after an initial complaint is made to a parent, teacher, or friend, subsequent repetitions are made to law enforcement officials and experts hired by the State. Once this entire group of witnesses testifies regarding a child’s allegations, the allegations seem to be more credible than when they were initially made. Thus, courts must guard against the unhindered admission of repetitive allegations of child sexual abuse in order to allow juries to properly focus on the issues at hand.
Admission of a Defendant’s Prior Uncharged Misconduct
A final evidentiary issue often arises in child sex abuse cases. Frequently, the State presents evidence of the defendant’s prior uncharged misconduct, even though those acts are not part of the charged offenses. In order to guard against the high level of prejudice which accompanies such evidence (People v. Davis, 260 Ill. App. 3d 176, 190 (1994) (evidence of prior bad acts carries a high risk of prejudice and generally calls for reversal on appeal)), courts must carefully weigh the prejudicial nature of the evidence against its probative value (People v. Robinson, 167 Ill. 2d 53, 63 (1995) (when the probative value of other-crimes evidence is outweighed by its highly prejudicial effect, a trial court should exclude that evidence)).
It is well settled that evidence of other misconduct is not admissible merely to show a defendant’s propensity to commit crime. People v. Thingvold, 145 Ill. 2d 441, 452 (1991); People v. Pursley, 284 Ill. App. 3d 597, 603-04 (1996). Such evidence is prejudicial because it may lead a jury to convict simply because it believes a defendant is a bad person deserving of punishment. Thingvold, 145 Ill. 2d at 452.
In general, evidence of other misconduct is admissible to prove knowledge, motive, intent, absence of mistake, or modus operandi. People v. McKibbins, 96 Ill. 2d 176, 182 (1983); Jahn, 246 Ill. App. 3d at 705. In fact, evidence of other crimes is admissible if it is relevant for any purpose other than to show the propensity to commit crime. People v. Gilliam, 172 Ill. 2d 484, 514 (1996); People v. Willer, 281 Ill. App. 3d 939, 954 (1996).
In child abuse cases, the State has an additional justification to introduce evidence of a defendant’s prior uncharged misconduct. Evidence of prior sexual activity with the complainant may be used to demonstrate that the victim and the defendant "had a continuing relationship or knew each other even though such facts are not in issue." Jahn, 246 Ill. App. 3d at 705-06; People v. Cregar, 172 Ill. App. 3d 807, 822 (1988). This justification is firmly rooted in our criminal law jurisprudence. In People v. Kraus, 395 Ill. 233, 237 (1946), the court noted that: "...an exception, as well established as the rule, is, that in the trial of a defendant for the commission of a crime involving sex relations, evidence of prior offenses between the defendant and the complaining witness is admissible for the purpose of showing the relation of the parties and to corroborate the testimony of the complaining witness concerning the particular act. It has been held proper to introduce evidence of other offenses between the same parties where the crime charged was adultery, (Crane v. People, 168 Ill. 395,) incest, (People v. Turner, 260 Ill. 84,) and rape (People v. Gray, 251 Ill. 431.)"
In Kraus, the defendant was convicted of a "crime against nature," which, based on the facts, was seemingly some form of child sexual abuse. Because this crime and the earlier-cited crimes all shared the common thread of criminal sexual conduct, the Kraus court approved of the State’s use of prior uncharged misconduct evidence for purposes of demonstrating a relationship between the complainant and the accused in child sex abuse cases. Kraus, 395 Ill. at 234.
As is often the case with hearsay evidence, evidence of prior uncharged misconduct is frequently repeated at trial. Even where the evidence is repeated to the jury on several occasions through other witness’ testimony, the introduction of other sex crimes evidence has been held to be harmless error (see, e.g., People v. Anderson, 225 Ill. App. 3d 636, 650-51 (1992); People v. Branch, 158 Ill. App. 3d 338, 341 (1987)), or not error at all (see, e.g., People v. Schmitt, 204 Ill. App. 3d 820, 828-29 (1990)). The rationale for the admission of repeated evidence of a defendant’s prior bad acts seems to be that limiting a child complainant’s testimony to a single charged incident makes that incident appear isolated in time and also places "an unfair burden on the credibility of the complainant’s testimony." Anderson, 225 Ill. App. 3d at 647-48.
This rationale, however, must be microscopically examined because it seems to unduly emphasize the interests of child witnesses over the due process rights of defendants. While it is important to minimize the emotional trauma that a child will undoubtedly suffer during a trial, the outcome of many sexual abuse cases hinges almost entirely on the credibility of the accuser and the defendant. People v. Bobo, 278 Ill. App. 3d 130, 133 (1996). And children in general are difficult witnesses. Generally, child witnesses are more likely to become confused and upset when then testify in court, and that confusion and trauma undoubtedly increases when they are testifying against someone accused of abusing them. B. Gilleran-Johnson and T. Evans, The Criminal Courtroom: Is It Child Proof?, 26 Loy. U. Chi. L.J. 681, 687 (1995). However, there is a fine line between admitting evidence of a defendant’s prior misconduct with the child for purposes of demonstrating a continuing relationship between the child and the defendant and admitting that same evidence as proof of the defendant’s propensity to commit child sexual abuse. See, e.g., Bobo, 278 Ill. App. 3d at 133 (error to admit evidence of separate acts of sexual misconduct with other children for purposes of demonstrating "intent, guilty knowledge, accident, or absence of mistake" because these factors can be proven with other testimony; this evidence showed only the defendant’s propensity to commit the crime charged).
To demonstrate this point, imagine a hypothetical defendant charged with abusing a child on a specific date. Under the prior relationship exception, the child complainant could testify that the accused abuser molested her not only on the date in question, but for a lengthy period before the abuse was finally discovered or reported. The child’s story can then be repeated when police officers, relatives, doctors, and DCFS experts testify to the damage caused by such repeated abuse. All of this evidence would be admissible as proof of a continuing relationship between the complainant and the accused. But when such evidence is carefully examined in light of the fact that the defendant was charged only with conduct which allegedly occurred on a specific date, evidence of prior uncharged misconduct becomes more prejudicial and less probative. In fact, it becomes much more difficult to differentiate between continuing relationship evidence and propensity evidence; evidence of a prior sexual relationship between the parties really only demonstrates a defendant’s propensity to commit such abuse.
Therefore, in order to ensure that highly prejudicial evidence of other uncharged misconduct is not erroneously admitted, courts must carefully scrutinize the evidence and conclusively determine that it does not demonstrate a defendant’s propensity to commit abuse. It would oftentimes be more consistent with due process to limit the admission of evidence which relates only to the date charged and not to events in the past. In this regard, courts should limit the introduction of other crimes evidence, which generally serves only to inflame the jury’s emotions, lend credibility to the State’s case, and to "diffuse the focus of the proceedings and distract the trier through prolonged explanation of the defendant’s personal history." D. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 Chi. Kent L.Rev. 15, 21-22 (1994) ("[J]urors are more likely to accord prior offenses more weight than they rationally merit as evidence of guilt, and are more likely to return unwarranted convictions based on antagonism against the defendant that results from knowledge of his other offenses.")
While we seek to ensure that child sex abusers are rightly punished for their horrible crimes, our courts must be vigilantly protective of defendants’ due process rights.
Accordingly, it is imperative to allow only such evidence of prior criminal acts with the child victim which clearly does not cross that thin line marked "prejudice."
Because of the unusual nature of cases involving child complainants, taking testimony via closed circuit television, allowing the repeated introduction of the complainant’s hearsay testimony, and admitting evidence of the defendant’s prior uncharged misconduct combine to aid the trier of fact in its determination and to protect the child from further emotional trauma. As this article demonstrates, however, that combination can be utilized in a manner which impacts sharply upon a defendant’s due process rights.
Rather than rushing to convict those accused of harming our children, courts and prosecutors would be well-advised to consider the harm those evidentiary tools can cause to an otherwise fair trial.
Achieving the delicate balance between preserving a defendant’s rights and protecting a child’s well-being is not impossible, but it must be the goal, and not the accidental result, of all child sex abuse cases.
Honorable John J. Bowman is a Presiding Justice of the Illinois Appellate Court, Second District. He received his Undergraduate Degree in 1952 from the University of Illinois and his Law Degree in 1959 from John Marshall. Justice Bowman acknowledges the assistance of his law clerk, Brian M. Ziff, in the preparation of this article.