Vanderbilt Law Review Volume 42 Issue 5 Issue 5 - October 1989 Article 6 10-1989 The Confrontation Clause Applied to Minor Victims of Sexual Abuse Eleanor L. Owen Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Sexuality and the Law Commons Recommended Citation Eleanor L. Owen, The Confrontation Clause Applied to Minor Victims of Sexual Abuse, 42 Vanderbilt Law Review 1511 (1989) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss5/6 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. RECENT DEVELOPMENT The Confrontation Clause Applied to Minor Victims of Sexual Abuse I. INTRODUCTION ......................................... 1512 II. LEGAL BACKGROUND ................................... 1515 A. Historical Interpretation of the Confrontation Clause ........................................ 1515 1. The "Truthfinding" Function ............... 1515 2. "Adequate Indicia of Reliability" as a Measur- ing R od .................................. 1517 B. The Confrontation Clause Applied to the Federal Rules of Evidence .............................. 1519 III. RECENT DEVELOPMENTS ................................ 1521 A. "Child Shield" Statutes ........................ 1521 B. Confrontation in Sexual Abuse Cases ............ 1524 1. Kentucky v. Stincer and Pennsylvania v. R itchie ................................... 1524 2. Coy v. Iowa ............................... 1525 IV. ANALYSIS .............................................. 1527 A. The Reliability Requirement .................... 1527 1. Guarantees of Reliability Through Cross-Ex- am ination ................................. 1528 2. Guarantees of Reliability Through Hearsay Exceptions ................................ 1529 B. State Interests ............................... 1531 C. Preserving the Constitutionality of Child Shield Statutes ...................................... 1532 V. CONCLUSION........................................... 1533 1511 1512 VANDERBILT LAW REVIEW [Vol. 42:1511 I: INTRODUCTION Dramatic increases in reports of child abuse and an even more alarming rise in reports of sexual abuse of children1 have contributed to growing media attention and public awareness of these problems.2 Con- cern for effective prosecution of the abusers, as well as for protection of the minor victims from further psychological trauma,3 has prompted a growing number of states to develop statutory measures that provide special protection from trauma for children during testimony at trial.4 The minor victim reportedly has the most difficulty facing his or her family and the defendant during testimony.5 Creative solutions' to this problem have been developed while balancing protection of the defend- ant's constitutional right to confrontation.7 Typically, these statutes provide for the child to testify via closed-circuit television, by means of videotaped direct testimony, or from behind a screen.8 Such procedures have been deemed necessary by state legislatures primarily for two reasons. First, the state has a strong interest in crimi- nal justice; conviction rates for juvenile sex abuse cases remain "strik- ingly low" while reports of abuse continue to escalate annually.9 Low 1. See Brief for the American Bar Association, Coy v. Iowa, 108 S. Ct. 2798 (1988) (No. 86- 6757) [hereinafter Amicus Brief]; see also AM. Ass'N. FOR PROTECTING CHILDREN, HIGHLIGHTS OF OFFICIAL CHILD NEGLECT AND ABUSE REPORTING 1985, at 3 (1987) (stating that reports of child abuse increased from an annual rate of 669,000 in 1976 to over 1.9 million in 1985, and that in 1985, 12% of all reported maltreatment concerned child sexual abuse). 2. See Watson, Special Report: A Hidden Epidemic, NEWSWEEK, May 14, 1984, at 30, col. 3 (quoting statistics which predict that child molestation will occur this year between 100,000 and 500,000 times); Recent Development, Criminal Law-Right of Confrontation-Screen Used at Trial That Prevents Testifying Child Sex Abuse Victim from Viewing Accused Violates Ac- cused's Sixth Amendment Right to Face-to-Face Confrontation, 20 ST. MARY'S L.J. 219, 220 (1988); see also Vartabedian & Vartabedian, Striking a Delicate Balance, JUDGES J., Fall 1985, at 16, 17. 3. See Casenote, Pennsylvania v. Ritchie: The Supreme Court Examines Confrontationand Due Process in Child Abuse Cases, 34 Loy. L. Ray. 181, 186 (1988) (stating that "[1less than ten percent of the cases reported in any year are ever prosecuted because of the difficulty in obtaining evidence and the trauma to the child caused by the criminal justice system"). 4. See infra note 75 and accompanying text. The policy underlying these "child shield" stat- utes is to provide an atmosphere as comfortable and unthreatening as possible in which the child may testify, while still allowing the defendant to participate fully in the proceeding. 5. See, e.g., Ginkowski, The Abused Child: The Prosecutor's Terrifying Nightmare, CRIM. JUST., Spring 1986, at 30, 31; Vartabedian & Vartabedian, supra note 2, at 18. 6. Ginkowski, supra note 5, at 35. 7. U.S. CONST. amend. VI; see also infra notes 24-28 and accompanying text. 8. See Ginkowski, supra note 5, at 35. 9. See Note, The Revision of Article 38.071 after Long v. State: The Troubles of a Child Shield Law in Texas, 40 BAYLOR L. REV. 267, 267 (1988). Many authorities, however, do not believe that the current number of sexual abuse reports accurately reflects the amount of abuse that is actually occurring. See, e.g., Comment, Children's Testimony in Sexual Abuse Cases: Ohio's Pro- posed Legislation, 19 AKRON L. Rv. 441, 441 n.5 (1986) (reporting that "'[i]tis likely that more than 20,000 felony child molestations occur in Ohio each year: [and that] 2,000 (10%) of these 1989] CONFRONTATION CLAUSE 1513 rates of conviction have been noted by courts and psychologists as due in large part to the child's reluctance or inability to testify in open court.'0 If the child is psychologically able to testify at all, the quality of that testimony may weaken the state's case dramatically." The witness is better able to testify effectively and accurately when a court is au- thorized statutorily to permit these children to testify in unorthodox manners that shield the child from the trauma of testifying face-to-face with the defendant. 2 In addition to facilitating prosecution and conviction, the state has a strong social interest in protecting the psychological welfare of minors who are victims of sexual abuse. Virtually all commentators, judges, prosecutors, and support professionals who deal with child victims ac- knowledge that the pre-existing trauma of the abuse is only exacer- bated 13 by the emotional demands put upon the child during testimony at trial.14 Feelings of guilt, fear, and isolation are among the most com- offenses are reported to law enforcement authorities'" (quoting Ohio State Sen. Lee Fisher, spon- sor of OHIO S. 16 (Jan. 30, 1985) (proposed child shield legislation))). 10. See State v. Sheppard, 197 N.J. Super. 411, 484 A.2d 1330 (Law Div. 1984). There, the state's case-in-chief disclosed: In most cases, prosecutions are abandoned or result in generous plea agreements, either be- cause the child's emotional condition prevents [him or] her from testifying or makes the testi- mony obviously inaccurate or inadequate. One attorney, who had handled 30 to 40 of these cases for the State, was able to complete a trial in only one. In most, while the child victim was able to provide her with information sufficient to support a prosecution and was some- times able to appear with difficulty before a grand jury, [he or] she could not testify in court face-to-face with the accused and other relatives. Id. at 417, 484 A.2d at 1333. 11. See D. WHITCOMB, E. SHAPIRO & L. STELLWAGEN, WHEN THE VICTIM IS A CHILD: ISSUES FOR JUDGES AND PROSECUTORS 17-18 (1985) [hereinafter CHILD VICTIM ISSUES] (noting that "the most frequently mentioned fear was facing the defendant [as] the participation and experience of being in close proximity to the defendant can be overwhelming"). 12. The ABA's amicus curiae brief submitted in Coy v. Iowa argued: Testifying in sight of the defendant may. weaken the state's case. The trauma may contribute to the child "freezing" on the witness stand, fidgeting, stammering, and in general casting false doubt upon his or her credibility and veracity. If the child is unable to testify effectively, the case may be dismissed. Amicus Brief, supra note 1, at 9-10. 13. See, e.g., Ginkowski, supra note 5, at 31 (stating that "[i]ronically, the criminal justice system, supposedly the child protector of last resort, often becomes the perpetrator of child abuse"). 14. See Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Jus- tice System, 15 WAYNE L. REV. 977 (1969). Libai discussed the following elements that adversely affect child witnesses: Psychiatrists have identified components of the legal proceedings that are capable of putting a child victim under prolonged mental stress and endangering his emotional equilibrium: re- peated interrogations . ; facing the accused again; the official atmosphere in court; the acquittal of the accused for want of corroborating evidence . ; and the conviction of a molester who is the child's parent or relative. Id. at 984; see also Amicus Brief, supra note 1, at