Doe v. U.S.

Decision Date21 January 1993
Docket NumberNos. 90-3762,90-3763,90-3764 and 90-3765,s. 90-3762
Citation976 F.2d 1071
Parties36 Fed. R. Evid. Serv. 1172 John DOE, et al., Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

George Ripplinger (argued), Ripplinger, Dixon & Johnston, Harold G. Belsheim, Pessin, Baird, Belsheim & Wells, Belleville, Ill., for plaintiffs-appellees, cross-appellants.

Frederick J. Hess, U.S. Atty., Office of U.S. Atty., Crim. Div., Fairview Heights, Ill., Stuart M. Gerson, Office of U.S. Atty. Gen., Anthony J. Steinmeyer, Malcolm L. Stewart (argued), Dept. of Justice, Civ. Div., Appellate Section, Jeffrey Axelrad, Jerome A. Madden, Robin D. Smith, Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., for defendant-appellant, cross-appellee.

Before FLAUM and RIPPLE, Circuit Judges, and WILL, Senior District Judge. *

FLAUM, Circuit Judge.

The plaintiffs in these consolidated cases, two minor children and their parents, allege that during the fall of 1984 the children were sexually molested by unknown parties while in the care of the Scott Air Force Base Day Care Center ("Center"). The plaintiff children, although not related, are referred to as "Alexis Doe" and "John Doe." According to the plaintiffs' theory, while the Center employees did not necessarily perpetrate the abuse, they were negligent in supervising the children, thereby allowing Alexis and John to be abused by an unknown person or persons. Following a bench trial, the court entered judgment in favor of the children and awarded each child $25,000 in damages. Jurisdiction is premised on the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b).

I.

We begin with an abbreviated overview of the facts. At about 8:15 a.m. on September 24, 1984, Alexis' mother took Alexis, then three years old, to the Center. She retrieved her daughter shortly after 3:00 p.m., and during the car ride home Alexis told her mother that an unidentified "purple man" had poked her "gina"--Alexis' word for vagina--with a "scrape." On October 19, 1984, after reading an article in the Scott Air Force Base newsletter discussing allegations of sexual abuse at the Center, John's mother asked three-year-old John whether anyone at the Center had touched him in a "bad way." John responded in the affirmative, and said that a man had touched his penis and a woman had touched his "bombosity"--John's word for buttocks.

After unsuccessfully seeking administrative relief, the parents of Alexis and John ultimately filed suit in district court on behalf of themselves and their children. The complaints, premised on the FTCA, sought damages of $8 million for medical expenses and emotional injuries to the parents and to their children. The district court consolidated the cases, and initially granted summary judgment to the government on the ground that the claim asserted was one "arising out of assault [or] battery," 28 U.S.C. §§ 1346(b), 2680(h), and therefore was not cognizable under the FTCA. We reversed, holding that the claims arose out of a breach of an affirmative duty to the victims even if the persons committing the alleged assaults were government employees, and remanded the case for trial. Doe v. United States, 838 F.2d 220, 225 (7th Cir.1988). The district court then dismissed the parents' claims for their own emotional injuries, but allowed them to remain as plaintiffs to pursue recovery for their children's medical expenses and emotional injuries.

At the bench trial, the district judge permitted the parents to testify as to the out-of-court statements their children made to them regarding the alleged abuse. It is these statements that form the basis of the government's appeal. The government contends that the children's admittedly hearsay statements did not fall within any exception to the general rule against admission of hearsay, and were therefore erroneously admitted. On cross-appeal, the plaintiffs maintain first, that the court improperly dismissed the parental claims for emotional distress, and second, that the damage awards are inadequate. We affirm.

II.

Under the residual, or catchall, exceptions of the Federal Rules of Evidence, see Fed.R.Evid. 803(24), 804(b)(5), the trial court may admit reliable hearsay that does not fall within one of the traditional, enumerated exceptions. These residual exceptions "accommodate ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might nevertheless be sufficiently reliable to be admissible at trial." Idaho v. Wright, 497 U.S. 805, ----, 110 S.Ct. 3139, 3147, 111 L.Ed.2d 638 (1990); see Advisory Committee Note to Rule 803(24). Congress intended that the residual exceptions be used sparingly; although trial judges are given considerable discretion in evaluating hearsay offered thereunder, that discretion is "tempered by the requirement that the exception be reserved for exceptional cases." John E.B. Myers, Child Witness Law and Practice, § 5.37, at 205 (Supp.1991). Despite these admonitions, the residual exception is used with some frequency in child abuse litigation. See, e.g., United States v. Shaw, 824 F.2d 601, 609 (8th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988); see also United States v. Dunn, 851 F.2d 1099, 1101 (8th Cir.1988).

The nation's courts are, unfortunately, awash with child sexual abuse cases; such litigation has been given the dubious label, "tort of the 1990s." See Dick Dahl, Plymouth County Jury Award May Make Child Sexual-Abuse Litigation a New Tort of the 1990s, 1991 Massachusetts Lawyers Weekly, Apr. 15, 1991. The number of children sexually abused each year in the United States has been estimated at between 60,000 and 100,000, Ann Marie Hagen, Note, Tolling the Statute of Limitations for Adult Survivors of Childhood Sexual Abuse, 76 Iowa L.Rev. 355, 357 (1989) (citing L. Karp, Domestic Torts: Family Violence, Conflict and Sexual Abuse 154 (1989)), and even these disturbing statistics are underinclusive because many cases go unreported. Id. Detecting sexual abuse, and convicting its perpetrators, is problematic because of the lack of witnesses, the difficulty of obtaining corroborative physical evidence, and the typical reluctance or inability of the victim to testify against the defendant. Judy Yun, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1745 (1983). In light of these circumstances, the out-of-court statements of the child victim take on exceptional significance; a youngster's hearsay statements in sex abuse cases often constitute the only proof that a crime has occurred. Id. 1

The central issue in such cases typically is whether the proffered hearsay possesses indicia of reliability "equivalent" to the indicia of reliability supporting the traditional exceptions--whether, in other words, "the circumstantial guarantees of trustworthiness" of the hearsay offered under the residual exception are " 'equivalent' to the guarantees that justify the specific exceptions." Huff v. White Motor Corp., 609 F.2d 286, 293 (7th Cir.1979); see Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 2063, 90 L.Ed.2d 514 (1986); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). 2 Idaho v. Wright, supra, recently rejected the view that a mechanized test should be formulated to determine whether a child's out-of-court statement is reliable, and instead adopted a "totality of the circumstances" approach. Significantly, the Court stated that the trial judge may consider any evidence that sheds light on "whether the child declarant was particularly likely to be telling the truth when the statement was made." 497 U.S. at ----, 110 S.Ct. at 3150. Wright identified several factors that trial courts may consider in evaluating the reliability of a child's hearsay statement, including spontaneity, consistent repetition, the mental state of the child at the time the statement was made, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. This list, however, is "not exclusive, and courts have considerable leeway in their consideration of appropriate factors." Id. The Court, at least in the confrontation clause context, limited the relevant circumstances to "those that surround the making of the statement and that render the declarant particularly worthy of belief." Id. 497 U.S. at ----, 110 S.Ct. at 3148. That is to say, "if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial." Id. 497 U.S. at ----, 110 S.Ct. at 3149.

As we previously have recognized, prosecutions based on sexual abuse allegations "place a strain on traditional notions of procedural justice." Nelson v. Farrey, 874 F.2d 1222, 1224 (7th Cir.1989), cert. denied, 493 U.S. 1042, 110 S.Ct. 835, 107 L.Ed.2d 831 (1990). This is especially so in a case such as this, where the alleged abuse left no physical traces, and where the children were extremely young when the abuse occurred. See id. It is against this complex backdrop that we turn to the specifics of this case.

III.
A.

The government contends that the hearsay statements of Alexis and John contain inadequate circumstantial guarantees of trustworthiness to justify admission, and maintains, therefore, that the district court abused its discretion in admitting them. According to the government, without these hearsay statements there is insufficient evidence upon which to base a finding of liability.

At trial, the government argued that the parents should not be permitted to testify as to their children's out-of-court statements because Alexis and John were not competent at the time they...

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