specially concurring:
Although I fully concur with the majority opinion, I write separately to voice my disagreement with our dissenting colleague’s conclusion “[t]he applicability of Crawford to section 115 — 10 could not be clearer. Section 115 — 10 is unconstitutional.” 355 Ill. App. 3d at 804, citing In re E.H., 355 Ill. App. 3d 564, 576 (2005).
A statute is facially unconstitutional only if no circumstances exist in which it could be validly applied. Lucien v. Briley, 213 Ill. 2d 340, 344, 821 N.E.2d 1148 (2004). Thus, if a statute permits an unconstitutional procedure, but also allows for a constitutionally correct procedure, the statute is not facially unconstitutional. See Lucien, 213 Ill. 2d at 345.
As recognized by the majority opinion (see 355 Ill. App. 3d at 792), the Crawford Court noted that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of prior testimonial statements.” Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9. While section 115 — 10 does require a judicial determination of the statement’s reliability before the statement is admissible, the section also requires that the child declarant either (1) testify at the proceeding or (2) be unavailable as a witness and corroborative evidence of the act that is the subject of the statement exists. 725 ILCS 5/115 — 10(b)(1), (b)(2) (West 2002). Thus, when the declarant testifies at trial, the hearsay statements admitted under section 115 — 10 do not violate Crawford. See Miles, 351 Ill. App. 3d at 864, 815 N.E.2d at 44. Accordingly, section 115 — 10 clearly provides for the constitutional admission of hearsay statements when the declarant does testify.
Moreover, the Crawford Court further stated that “[w]here non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Hence, where the declarant’s statements are nontestimonial, section 115 — 10 again permits the admissibility of statements that do not violate the confrontation clause. See In re Rolandis G., 352 Ill. App. 3d 776, 784, 817 N.E.2d 183, 190 (2004) (finding the victim’s statements to his mother were properly admitted under section 115 — 10 and did not raise any confrontation-clause issues); see also People v. R.F., 355 Ill. App. 3d 992, 1000-01 (finding Crawford did not apply to the victim’s hearsay statements to her mother and grandmother that were admitted under section 115 — 10).
Although the majority opinion properly did not address the nature of the victim’s testimony since the victim did testify for confrontation-clause purposes, I will address the nature of the victim’s statements to her mother to further demonstrate that section 115 — 10 is facially constitutional.
While the Supreme Court in Crawford did not provide a comprehensive definition of “testimonial,” it did provide some instructive examples. The term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Crawford Court also provided other clues as to what constitutes testimonial statements. For example, the Court noted “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192, 124 S. Ct. at 1364. Additionally, in responding to the special concurrence, the Court stated “[ijnvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse — a fact borne out time and again throughout a history with which the Framers were keenly familiar.” Crawford, 541 U.S. at 56 n.7, 158 L. Ed. 2d at 196 n.7, 124 S. Ct. at 1367 n.7. Thus, “Crawford indicates that governmental involvement in some fashion in the creation of a formal statement is necessary to render the statement testimonial in nature.” In re T.T., 351 Ill. App. 3d 976, 988, 815 N.E.2d 789, 800 (2004); see also R.F., 355 Ill. App. 3d at 1000 (noting Crawford applies only to statements made to governmental officials, not those made to nongovernmental personnel such as family members or physicians).
Here, Lydia questioned the child as a concerned and loving parent. Lydia desired to determine if her child had been sexually abused, and she questioned J.E. to determine the veracity of her suspicions. Lydia’s questions and J.E.’s responses were not prompted by police officers or any other governmental authority, and I conclude the responses elicited were thus nontestimonial in nature. Because J.E.’s statements to her mother were nontestimonial, Crawford is not implicated and admitting these statements under section 115 — 10 is constitutional.
The dissent’s rationale for pronouncing all of section 115 — 10 unconstitutional based upon Crawford is untenable. Its generalization that most child victims are unavailable to testify at trial does not render section 115 — 10 of the Code unconstitutional where the section clearly provides for circumstances in which hearsay statements are constitutionally admissible. Likewise, for the reasons stated in this special concurrence, I disagree with the First District’s finding section 115 — 10 is unconstitutional in E.H., 355 Ill. App. 3d at 576.