South Carolina Dept. of Social Services v. Doe

• Decision Date: 11 November 1986
• Docket Number: No. 0913,0913
• Citation: 355 S.E.2d 543,292 S.C. 211
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. John DOE, Appellant. . Heard

Page 543

355 S.E.2d 543

292 S.C. 211

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. John DOE, Appellant.

No. 0913.

Court of Appeals of South Carolina.

Heard Nov. 11, 1986.

Decided March 30, 1987.

Jane-Ashley Myrick McMillan, Greenville, for appellant.

Timothy L. Brown, Greenville, for respondent.

Donna Mosely-Coleman, Greenville, guardian ad litem, for Jane Doe, a minor under the age of fourteen years.

BELL, Judge:

This appeal presents the important question of whether hearsay evidence is admissible to prove that a parent has sexually abused his child. The family court held there is a "child abuse" exception to the rule against hearsay and admitted the evidence. We reverse.

The Department of Social Services commenced this action pursuant to Section 20-7-650(H), Code of Laws of South Carolina, 1976, as amended, seeking a determination that it had reasonable cause to initiate child protective services. The Department alleged that one John Doe had sexually abused his three and a half year old daughter by performing oral sex on her and fondling her genital area. In his answer, Doe denied all allegations of sexual abuse.

The family court judge ruled in limine that the Department could use out of court statements allegedly made by the child to third parties to prove a case of sexual abuse. After hearing the matter, the court entered an order finding Doe had sexually abused the child. The court also concluded that, without the hearsay evidence, the alleged event could not have been established.

I.

Hearsay consists of out of court statements offered in evidence to prove the truth of the matter asserted. Yaeger v. Murphy, 354 S.E.2d 393 (S.C.Ct.App.1987). As evidence derived mediately through a person who has no direct knowledge of the facts to which he testifies, hearsay is inferior to evidence derived immediately through one who testifies from personal knowledge and observation.

The rule against hearsay provides that statements made out of court, without an opportunity for cross examination of the declarant and without the sanction of an oath, shall not be received as evidence in judicial proceedings. Haselden v. Standard Mutual Life Association, 190 S.C. 1, 1 S.E.2d 924 (1939). "The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross examination." 5 J. Wigmore, Evidence in Trials at Common Law § 1362, at 3 (rev. ed. 1974); see also Jones v. Charleston & Western Carolina Railway, 144 S.C. 212, 142 S.E. 516 (1928) (reason for rule of exclusion is that hearsay is not subject to ordinary tests required by law for ascertaining its truth, the declarant not being subject to cross examination in presence of a court of justice).

Any man of experience who has heard tales told by one man against his neighbor, behind his back, and again told, when placed face to face, and new views are suggested by the man he had accused, and possibly belied--any one that has known such occurrences, will readily conceive ... of the justice, reason, and necessity of applying, to every witness, this ... test of the truth of his narration. Experience has proved that it is, of all others, the most effective, the most satisfactory, and the most indispensable test of the evidence narrated on the witness's stand. * * * * I know of no disagreement among the expounders of evidence upon the importance of the cross-examination.

State v. Campbell, 30 S.C.L. (1 Rich.) 124, 126-27 (1844).

Despite the importance of testing evidence by cross examination, the law recognizes exceptions to the rule against hearsay. Cf. Haselden v. Standard Mutual Life Association, supra (courts exclude hearsay unless proffered statements are within certain definite and well recognized exceptions). Experience teaches that certain classes of hearsay are substantially more trustworthy than hearsay in general. Moreover, in some cases hearsay may be the best or the only evidence available, so that the choice is between reasonably trustworthy hearsay and no evidence at all. Thus, where there is difficulty in obtaining other equally probative evidence and in the particular circumstances of the case there are sufficient guarantees that it is trustworthy, hearsay may be admitted as an exception to the general rule of exclusion. Sugden v. Lord St. Leonards, (1876) 1 P.D. 154, 241 (Jessel, M.R.); Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217 (1977); State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985); South-West School District v. Williams, 48 Conn. 504 (1881); Overseers of Westfield v. Overseers of Warren, 8 N.J.L. 249 (1826); Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955); 5 J. Wigmore, supra, §§ 1421, 1422; Randall, Survey of South Carolina Law--Evidence, 16 S.C.L.Rev. 197, 198 (1963) (reason underlying most exceptions to hearsay rule is that some strong necessity exists for use of hearsay evidence and some safeguard exists as to its credibility). This justification for allowing exceptions to the rule rests on what are commonly called the principles of necessity and trustworthiness. See 5 J. Wigmore, supra, § 1420.

In this case, the judge allowed the child's out of court statements to third persons to be presented as evidence of the truth of the matter asserted. This evidence was not admitted under any of the well recognized exceptions to the rule against hearsay. Instead, the judge created a new exception for statements made by a very young child who is the alleged victim of sexual abuse by a family member. In his own words, the judge created this "child abuse" exception

because of the almost impossible burden of proof were the Hearsay Rule to be strictly adhered to. * * * * Now, the Appellate Court needs to realize that if we are to address this concern, sexual abuse of very young children by a family member where there's no physical evidence of abuse, there really is only one way that we can do it and that is to rule the way I have just ruled. To do otherwise would be to cast young victims of sexual abuse by family members into a situation [in] which they have no protection at all from the State and it is my belief that society has a duty to protect people in this position who do not have the ability to protect themselves. I make this ruling without any implication that in this particular case I would find any statements that might have been made by the alleged victim to be credible at all....

In other words, the judge admitted the hearsay primarily on the principle of necessity without regard to its trustworthiness.

Like the family court judge, we have a deep concern for the problem of child sexual abuse. Nevertheless, the law does not permit us to sustain his ruling.

II.

Although the problem of abused children is as old as human history, ¹ no South Carolina cases recognize a "child sexual abuse" exception to the rule against hearsay. In this respect, South Carolina is not unique. As was pointed out in Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986), thirty-three states and the federal courts have codified their rules of evidence in recent years. Each of these codifications includes the hearsay rule, and each delineates numerous exceptions to the rule. None of them includes a "child sexual abuse" exception. Among the seventeenremaining states which retain common law rules of evidence, none has created a common law exception for out of court statements of children in sexual abuse cases. Id.

The proposed Uniform Rules of Evidence of the National Conference of Commissioners on Uniform State Laws contain the hearsay rule and thirty recommended exceptions. They do not include an exception for out of court statements by children. The leading treatises on evidence--Wigmore, Jones, and McCormick--do not recognize an exception for out of court statements by children. Binder's Hearsay Handbook, a respected practitioner's manual, does not recognize a "child abuse" exception. Id.

Some legislatures have recently enacted statutes permitting hearsay evidence in child abuse cases, but we agree with the observations of the Haber court on this legislative trend:

It is hard for a legislator, who must periodically run for reelection, to vote against a proposed statute that makes it easier to convict persons accused of child abuse, because of the danger that an opportunistic opponent and an unsophisticated electorate may interpret such a vote as being soft on crime in general, or soft on child-abusers in particular. Politically, the safest thing for a legislator to do is to vote in favor of such a statute, regardless of its merits, and leave it to the courts to deal with the ramifications of its enactment.

Commonwealth v. Haber, 351 Pa.Super. at 82, 505 A.2d at 275 n. 1. In any event, the South Carolina General Assembly has not enacted a statutory exception, so we must decide this case according to the principles of the common law.

III.

The general absence of a class exception for "child abuse" hearsay in the common law of evidence is no happenstance. There is no reason to believe the out of court statements of young children are substantially more trustworthy than other types of hearsay.

Certainly in this case there were serious reasons to question the reliability of the child's statements. At the time the statements were made, the child was caught in the middle of a custody dispute incident to her parents' divorce. She was suffering from the emotional confusion of her parents' separation. Her statements were made while she was in the mother's custody and cut off from the father. The Department's own witnesses conceded the child's stories were influenced by her mother and grandmother. They were made to persons known by the mother to be potential witnesses in the litigation. They were uncorroborated by the circumstantial evidence....