dissenting:
I strongly dissent from the majority opinion. I also concur in Mr. Justice Harrison’s dissent which demonstrates how the majority is proceeding in the opposite direction from the majority of jurisdictions in the area of expert testimony in child sexual abuse cases. I recognize the good faith attempt on the part of the majority to address a very perplexing area of the law of evidence. The tragic result is that we have severely handicapped the capacity of the judicial system to prosecute adults who commit sexual offenses upon very young children.
Rule 702, M.R.Evid., details the testimony to be allowed by experts:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in *419issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”
In the present case we have the specialized knowledge of Ms. Sandi Burns who is an acknowledged expert in the area of sexual abuse. The extensive testimony on the part of Ms. Bums clearly assisted the trier of fact to understand evidence given by the children and to determine key facts in issue with regard to the charges of sexual abuse.
The testimony sets forth the key professional qualifications on the part of the witnesses who testified in this case as experts in the area of child sexual abuse. Janey was taken by her mother to her pediatrician on the day after her mother observed Jane/s problems. That pediatrician testified that she had special training regarding the diagnosis of sexual abuse in small children, and that she currently was on the Yellowstone Valley Sexual Abuse Team. While she could not recall the exact number of sexual abuse cases with which she had been involved, she estimated a total of 50 to 75 cases. She testified she had been in court proceedings on sexual abuse on 10 or 15 different occasions. She is the medical witness who testified with regard to the bruises and abrasions which were consistent with sexual abuse.
The defendant called a Billings pediatrician who testified as an expert with regard to his examination of the children. He has practiced pediatrics in Billings since 1953. He estimates that he has examined from 25 to 30 children for sexual abuse. He testified he found no evidence of sexual abuse in the two children.
Ms. Sandi Burns testified with regard to her examination and treatment of Janey and Robby. Ms. Bums has been engaged in psychotherapy for approximately ten and one-half years in the Billings area. She has two masters degrees in counseling and psychology from Arizona State University. She is licensed by Montana as a professional counselor, and is licensed nationally as a certified counselor. She has specialized in sexual abuse cases for over ten years, and a majority of her case load consists of the diagnosis and treatment of child sexual abuse. She sees an average of 50 sexual abuse patients a week. She testified that she has handled approximately 1500 cases of child sexual abuse in the past 10 years. Her patients come from all parts of Montana and from out of state. She has taught approximately *42035 to 40 workshops a year for the FBI, social workers, school districts, teachers, counselors and nurses. Ms. Burns was charged with the diagnosis and treatment of both Janey and Robby.
It is apparent from the record that the treatment of medical doctors in sexual abuse cases is limited to caring for the patients until they have physically recovered from any harm. The treatment of the mental and emotional aspects of sexual abuse with minor children is left to such experts as Ms. Burns. Note that the two pediatricians who testified as experts together have not seen one-tenth of the patients seen by Ms. Bums in the past ten years. Their total is less than 150 as compared to Ms. Burns’ 1500 cases. I emphasize this because Rule 702 emphasizes that if specialized knowledge will assist the trier of fact, a witness qualified by knowledge, skill, experience and training may testify. Applying that rationale suggests that Ms. Burns has more qualification by experience than medical doctors who see far fewer cases and spend a limited amount of time with the children.
The majority opinion states that because a therapist does not see a child for treatment unless there has been a claim of sexual abuse, the therapist is arguably predisposed to confirm the abuse, which has a negative impact on the trustworthiness of the hearsay statement. The majority further concludes that the circumstances in which the therapist hears the statement are not generally such that a hearsay statement will possess circumstantial guarantees of trustworthiness. I am shocked that such statements are made in this case. Such statements might have been appropriate in cases where unqualified persons were testifying as to sexual abuse. That is not the case here. In Ms. Burns we have the expert’s expert — the person to whom the pediatrician referred the children for treatment — the person with the best experience to evaluate and treat sexual abuse. If the logic of the majority opinion is applied in other areas, it would appear that we should mistrust the testimony of a medical doctor because his patient was sent to him for diagnosis and potential treatment. The statements are totally unsupportable. Such a conclusion is particularly inappropriate in this case where Ms. Burns is one of the most qualified persons in the area of sexual abuse in the state of Montana.
I.
Did Ms. Burns improperly comment on the credibility of the alleged victims?
*421In Part I of the majority opinion, the majority emphasizes that the credibility of six year old Robby was not called into question by the defendant, and therefore concludes that it was reversible error to allow Ms. Burns to comment directly on Bobby’s trustworthiness. She had testified that Robby was a little, honest, open country boy who appeared to be a pretty trustworthy child and very honest.
Ms. Burns testified to a number of factors which must be taken into consideration before she can reach conclusions with regard to a child abuse victim. She illustrated how Janey initially was unable to talk freely with her, and explained how she established the facts so far as Janey was concerned. Ms. Burns’ testimony demonstrated that fear is one of the weapons frequently used by the adult sexual abuser upon a child victim. It is reasonable to conclude that the inability of Janey to testify in the present case was based upon such fear. That is particularly true because the trial judge found that she was unable to testify because of fear. Ms. Bums testified that Robby was extremely fearful because of threats made by the defendant and her husband. While it is fortunate that Robby was able to testify at trial, we have no assurance he will be able to testify on retrial. As pointed out by Ms. Bums, that may depend upon his mental and emotional state at the time of retrial.
As emphasized by Ms. Burns, experts in this field recognize that children sometimes have difficulty telling their story — they frequently deny the occurrence of the sexual abuse at various times — if the occasions present reasons for them to become fearful, they will refuse to testify, or contradict testimony previously given.
The testimony of Robby which the Court finds so persuasive is a demonstration of the problems in this area. On retrial we have no assurance that Robby will still be able to testify openly. If he is further threatened, or he recalls the previous threats made, he may choose to deny ever having testified as he did. Should that be the case, the person best able to discern the truth is the psychologist-therapist who has met day after day and week after week with the patient, and based upon her experience, as she did in the present case, reached a conclusion regarding the truthfulness of the statements.
We have applied a rule which may be applicable in adult witness cases but is totally inappropriate here. The testimony of Ms. Burns was clearly helpful to the trier of fact to determine whether or not Robby was telling the tmth and whether or not he accurately told what had happened to him and to Janey.
*422In other types of cases we conclude that an expert may testify on aspects bearing on the ultimate fact to be determined by the jury. We recognize that experts can be properly evaluated by the jury. Based upon the extensive knowledge, experience and training of the expert, it seems appropriate under Rule 702, M.R.Evid., to allow the expert to assist the jury to determine the facts in issue. Obviously few jurors have background or experience dealing with child sexual abuse with which to evaluate reactions on the part of child abuse victims.
I conclude that it was not reversible error to allow Ms. Burns to testify as to the credibility of Robby. We should encourage the giving of this essential information to jurors, the triers of fact.
II.
Did the District Court err in allowing Ms. Burns to identify the defendant as the perpetrator of the alleged crimes by testifying as to hearsay statements made to her by the victims during the course of therapy?
In discussing whether or not the evidence was admissible under Rule 803(4), M.R.Evid., the medical diagnosis and treatment exception, the majority emphasized that the reliability of the medical treatment exception is assured because the declarant who seeks medical treatment possesses a selfish motive to tell the truth and we may therefore assume that the declarant was telling the truth. That ignores the wording of our Rule 803(4),. which provides that statements made for either medical diagnosis or treatment are admissible. Statements made for medical diagnosis are not presumably reliable because the declarant may only be attempting to establish a claim, with no intent to seek treatment from that expert witness. In fact, the argument is probably stronger for allowing Ms. Bums, the highly qualified expert, to testify than it would have been for a medical doctor testifying as to diagnosis. We emphasize this because the information was stated by Ms. Burns to be essential to her treatment.
I also disagree with the narrow construction of the majority on the residual exception to hearsay Rule 804(b)(5). In the guidelines contained in State v. J. C. E. (1988), 235 Mont. 264, 767 P.2d 309, we pointed out that the main components of such testimony may well include the following:
“a. Whether the act alleged can be corroborated.
“b. If the child’s statement identifies a perpetrator, whether that identity can be corroborated.”
*423We emphasized that the admissibility of the evidence remains in the discretion of the trial judge.
The majority opinion concludes that because six year old Robby was able to link the defendant to the sexual assault, the identification by the expert through hearsay statements was only cumulative. Unfortunately, we have no assurance that Robb/s testimony will be available on retrial. Because of the extent of Ms. Bums’ expertise and the difficulty of ascertaining the extent to which a young child may have told the truth, I conclude that Ms. Burns’ testimony is clearly the most probative evidence to help the jury evaluate Bobby’s testimony.
Again, I emphasize that we treat these child witnesses as though they were adults. The testimony by Ms. Burns and other experts establishes that it is not appropriate to apply the same standards as are applied to adults.
I conclude that the preliminary protections of Rule 804(b)(5) have been met in this case and that the hearsay was properly admitted. I am disturbed by the conclusion on the part of the majority that it is only in an extraordinary case that hearsay statements by a therapist, concerning either the identify of the perpetrator or the nature of the abuse, possess sufficient circumstantial guarantees to be admissible. There is no factual basis for such a conclusion.
Summary
The tragic result is that we have rather casually reversed a conviction with overwhelming evidence establishing the guilt of the defendant. We have created multiple dilemmas: for the parents of both Janey and Robby the dilemma is whether or not to allow their children to go through the hurtful and frightening process of another trial. The dilemma on the part of the prosecution is whether they will be able to put together sufficient allowable evidence to convict the defendant so as to warrant their insistence that the children and parents go through the painful retrial process.
While our intentions have been of the very best, we have now reversed the convictions as to both defendant Harris and her husband. Defendant Harris has been found guilty by a jury based on overwhelming evidence. Our pursuit of justice leads to strange and tragic results as we reverse.