People v. Bowers

Chief Justice ROVIRA

concurring in part and dissenting in part:

Section 13-25-129, 6A C.R.S. (1987), provides in relevant part that the hearsay statement of an unavailable child is admissible in evidence if the court finds in an in camera hearing that the “time, content, and circumstances of the statement provide sufficient safeguards of reliability,” and that “there is corroborative evidence of the act which is the subject of the statement.” The majority holds that the trial court erred in concluding that there was corroborative evidence of the acts that were the subject of K.B.’s statements. In view of our definition of “corroborative evidence” in Stevens v. People, 796 P.2d 946 (Colo.1990), and the legislature’s concern over the difficulty of prosecuting sexual-abuse offenses, I do not agree with the majority’s unduly narrow definition of “corroborative evidence.” Moreover, I do not agree with the majority’s holding that Colorado Rules of Evidence 104(a) and 1101(d)(1) are inapplicable. While I join in Parts II, III and IV of the majority opinion, I respectfully dissent to Part V.

*528I

CRE 104(a) provides in relevant part that “[Preliminary questions concerning ... the admissibility of evidence shall be determined by the court_ In making its determination it is not bound by the rules of evidence except those with respect to privileges.” Similarly, CRE 1101(d)(1) provides in relevant part that the rules of evidence do not apply to “[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.” In the context of subsection 13-25-129(l)(b)(II), the determination of what facts constitute “corroborative evidence” unquestionably falls under the scope of CRE 104(a) and CRE 1101(d)(1). Thus, under a plain reading of the rules, a trial judge in a section 13-25-129 proceeding is not bound by the rules of evidence, including the evidentiary rule prohibiting hearsay, in determining whether the corroboration requirement of section 13-25-129 has been satisfied. Accordingly, a trial judge in making preliminary findings of fact “has considerable discretion ... under CRE 104(a) in resolving preliminary questions concerning the admissibility of evidence” and “ ‘must be permitted to evaluate [hearsay] statements for their evidentiary worth as revealed by the particular circumstances of the case.’ ” People v. Montoya, 753 P.2d 729, 732-33, 735-36 (Colo.1988) (quoting Bourjaily v. United States, 483 U.S. 171, 180, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987)).

A

The majority begins its analysis of section 13-25-129’s corroborative-evidence requirement by “acknowledging] ... that the Colorado Rules of Evidence state that a trial court is not bound by the rules of evidence, except with respect to privileges, in determining preliminary questions concerning the admissibility of evidence,” maj. op. at 523 (citing CRE 104(a); CRE 1101(d)(1)). In reaching its conclusion that the rules of evidence do not provide the “controlling evidentiary standards of admissibility,” the majority adds:

Where, however, the General Assembly has enacted a statutory scheme that creates a special rule of evidence for a particular category of cases and the eviden-tiary rule is not otherwise included in the Colorado Rules of Evidence, and where the statutory scheme includes a procedural protocol for determining the admissibility of evidence offered under the statute, the Colorado Rules of Evidence clearly contemplate that questions relating to admissibility of evidence offered under any such statute should be determined in accordance with the statutory scheme. See CRE 1101(e) (Rules of Evidence apply in special statutory proceeding only to extent “that matters of evidence are not provided for in the statutes which govern procedure therein.”).

Maj. op. at 523-524 (emphasis added).

I can agree with the majority’s analysis to the extent that the majority asserts only that admissibility of evidence which is explicitly governed by a statutory rule of evidence may not be controverted by the Colorado Rules of Evidence and, conversely, that the rules of evidence apply in section 13-25-129 proceedings to the extent they do not conflict with the provisions of section 13-25-129. While section 13-25-129 is not a “special statutory proceeding” as contemplated by CRE 1101(e), the principle of CRE 1101(e) is applicable — that is, the rules of evidence “apply to the extent that matters of evidence are not provided for in the statutes which govern procedure therein,” CRE 1101(e). However, that simple proposition does not justify the majority’s conclusion that CRE 104(a) and CRE 1101(d)(1) are inapplicable to section 13-25-129 proceedings. Nor does its application meet the People’s argument that, under CRE 104(a) and CRE 1101(d)(1), the trial court is not bound by the rules of evidence and thus may consider any evidence, including hearsay evidence, in the determination of “preliminary questions concerning ... the admissibility of evidence,” CRE 104(a) (emphasis supplied).

The standard for admitting into evidence a child-victim’s hearsay statements, as provided in section 13-25-129, comprises two *529“evidentiary antecedents,” People v. Montoya, 753 P.2d 729, 732 (Colo.1988): first, that the proponent of the hearsay statements demonstrate that the statements contain “sufficient safeguards of reliability,” § 13-25-129(l)(a); and, second, that if the child-victim is unavailable as a witness, “there is corroborative evidence of the act which is the subject of the statement,” § 13-25-129(l)(b)(II). See maj. op. at 522; Stevens v. People, 796 P.2d 946, 951 (Colo. 1990) (plurality opinion); People v. Diefenderfer, 784 P.2d 741, 748-51 (Colo.1989). Each of these evidentiary antecedents to admissibility — the reliability requirement and the corroboration requirement — raises a “preliminary question[ ] ... concerning the admissibility of evidence,” CRE 104(a) (emphasis supplied).

The majority implicitly acknowledges that the reliability requirement concerns a “preliminary question” of admissibility. See maj. op. at 520-522. In reviewing the trial court’s findings concerning the reliability of K.B.’s statements, the majority recognizes that a trial court may consider a child-victim’s statements, even though they are hearsay, in making the determination of whether the statements are reliable. See maj. op. at 520-522.

The corroboration requirement, like the' reliability requirement, is an “evidentiary antecedent” to admissibility under section 13-25-129 and raises a “preliminary question” of admissibility, as contemplated by CRE 104(a) — that is, the question of whether “there is corroborative evidence of the act which is the subject of the statement” must be answered before a child-victim’s hearsay statements may be admitted into evidence. People v. Montoya, 753 P.2d 729 (Colo.1988), is instructive. In Montoya, we stated that the “evidentiary antecedents for admitting a co-conspirator’s [hearsay] statement ... consist of establishing that there was a conspiracy of which the defendant and the declarant were members and that the declarant made the statement during the course and in furtherance of the conspiracy.” Id. at 732. We subsequently held that each of these “evidentiary antecedents” were preliminary questions concerning admissibility, as contemplated by CRE 104(a), and that a trial court in answering these preliminary questions was not bound by the rules of evidence and could consider “any other evidence” in addition to the co-conspirator’s hearsay statement. Id. at 736.

The majority mistakenly construes the evidentiary antecedent of corroborative evidence in subsection 13-25-129(l)(b)(II) as an ultimate question of the admissibility of a child-victim’s hearsay statements. However, by its terms section 13-25-129 provides that'the ultimate question of the admissibility of a child-victim’s hearsay statements cannot be answered by satisfying the reliability requirement alone or the corroboration requirement alone. Rather, as the majority recognizes, maj. op. at 522, the hearsay statements become admissible only upon satisfaction of both evidentiary antecedents.

Section 13-25-129 does not specify how a trial court should determine preliminary questions concerning the admissibility of hearsay statements of child-victims. Because determining preliminary questions of admissibility is a “matter[] of evidence [that is] not provided for in the statute[] which governfs] procedure therein,” CRE 1101(e), Colorado Rules of Evidence 104(a) and 1101(d)(1) are applicable in determining preliminary questions of admissibility in section 13-25-129 proceedings. Accordingly, a trial court in making its determination on the preliminary question of whether “there is corroborative evidence” is not bound by the rules of evidence, including the evidentiary rule prohibiting hearsay, see CRE 104(a); CRE 1101(d)(1), and it may consider a child-victim’s hearsay statements in making its determination of whether the corroboration requirement is satisfied.

While the majority apparently abjures the- application of CRE 104 and CRE 1101(d)(1) in section 13-25-129 proceedings and directs trial courts to “look to” section 13-25-129 and not the rules of evidence for the “controlling evidentiary standards of admissibility,” section 13-25-129 contains no provision that would serve the same function as CRE 104. Because of the need *530for a procedure to guide trial courts in determining preliminary questions of admissibility and because of the absence of such a procedure in section 13-25-129, I would permit the rules of evidence — and in particular CRE 104(a) — to supply the missing evidentiary procedure.

B

The majority also asserts that CRE 104(a) and CRE 1101(d)(1) are inapplicable because “[s]ection 13-25-129(1) not only states that the hearsay exception therein created applies only when the child’s out-of-court statement is ‘not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay,’ but also requires an in-limine admissibility hearing and sets forth explicit conditions of admissibility with respect to any statement offered under the statute.” Maj. op. at 524. The majority reads too much into subsection 13-25-129(1).

The language in subsection 13-25-129(1) upon which the majority relies merely indicates that section 13-25-129 is a hearsay exception of last resort. Only if a proponent of a child’s hearsay statement cannot bring the statement into evidence using well-established hearsay exceptions may the proponent then turn to section 13-25-129, which we have called a “residuary rule[].” People v. Diefenderfer, 784 P.2d 741, 752 (Colo.1989). While the language in subsection 13-25-129(1) certainly excludes the use of the hearsay exceptions contained in the rules of evidence once section 13-25-129 is invoked, the exclusionary language cannot realistically be read to discard CRE 104(a) and CRE 1101(d)(1) in section 13-25-129 proceedings.

I do not find support for the majority’s conclusion that subsection 13-25-129(1) requires an in-limine admissibility hearing and imposes “explicit conditions of admissibility with respect to any statement offered under the statute,” maj. op. at 523. Neither the requirement of an in-limine hearing nor the imposition of conditions of admissibility suggests that the legislature intended to exclude the applicability of CRE 104(a) and CRE 1101(d)(1). I find more indicative of the legislature’s intentions that section 13-25-129 does not provide a procedure by which a trial judge is to determine preliminary questions of admissibility. The absence of such a procedure strongly suggests that the trial judge is to apply the rules of evidence, specifically CRE 104(a) and CRE 1101(d)(1), in determining preliminary questions of admissibility in section 13-25-129 proceedings. See CRE 1101(e); Pruett v. Barry, 696 P.2d 789, 794 (Colo. 1985) (“rules of evidence apply in ‘special statutory proceedings[ ]’ ... to the extent that they are not in conflict with statutory requirements for such proceedings ”) (emphasis supplied).

II

In Stevens v. People, 796 P.2d 946 (Colo. 1990), a majority of this court in separate opinions held that “ ‘corroborative evidence,’ as contemplated by section 13-25-129, is any evidence, direct or by proof of surrounding facts and circumstances, that tends to establish the act described by the child in the statement occurred.” 796 P.2d at 952; id. at 957 (Lohr and Quinn, JJ., concurring). The majority now states that the majority in Stevens considered only the “general sense” of the term “corroborative evidence” and “did not attempt to determine the precise scope of the corroborative-evidence requirement, nor did [it] delineate the various forms of corroborative evidence that might satisfy the statutory requirement.” Maj. op. at 522-523. As reformulated by the majority, “corroborative evidence” comprises “evidence, direct or circumstantial, that is independent of and supplementary to the child’s hearsay statement and that tends to confirm that the act described in the child’s statement actually occurred.” Maj. op. at 525. I do not agree that the legislature intended such an unduly constrained definition of “corroborative evidence” in the context of section 13-25-129.

A

Section 13-25-129 does not define “corroborative evidence,” nor does the Washington child hearsay statute, Wash.Rev.Code *531§ 9A.44.120 (1989), upon which Colorado’s statute was based. Stevens, 796 P.2d at 951 (plurality opinion); see Comment, Confrontation of Child Victim-Witnesses: Trauma, Unavailability, and Colorado’s Hearsay Exceptions for Statements Describing Sexual Abuse, 60 U. of Colo.L. Rev. 659, 667 (1989). As the majority notes, this court and other authorities have stated that “corroborative evidence” “connotes evidence independent of and supplementary to a fact and tending to strengthen or confirm that fact,” maj. op. at 524 (citing, inter alia, People v. Martinez, 1-87 Colo. 413, 416, 531 P.2d 964, 965 (1975), Black’s Law Dictionary 311 (5th ed. 1979)); but see Davis v. People, 176 Colo. 378, 382, 490 P.2d 948, 950 (1971). However, in view of the well-recognized difficulty in prosecuting child-abuse offenses, and especially sexual-abuse crimes, I do not believe that the legislature intended to follow the narrow definition of “corroborative evidence” found in the cases cited by the majority.1 I believe that section 13-25-129 would be rendered lifeless under the majority’s unduly narrow definition of corroborative evidence.

In enacting the child hearsay statute, the legislature was aware that sexual-abuse crimes are difficult to prosecute in large part because of the lack of evidence corroborative of sexual abuse. As we have noted, “[sjeldom can acts of sexual abuse be physically corroborated, and usually the only evidence directly implicating the attacker is the child’s hearsay statements.” Stevens, 796 P.2d at 952 (plurality opinion) (citing People v. District Court of El Paso County, 776 P.2d 1083, 1085 n. 1 (Colo.1989)). This view is widely shared among courts and commentators. See, e.g., Miller v. State, 517 N.E.2d 64, 69 (Ind.1987); State v. Swan, 114 Wash.2d 613, 623, 790 P.2d 610, 615 (1990); Myers, Bays, Becker, Berliner, Corwin & Saywitz, Expert Testimony in Child Sexual Abuse Litigation [hereinafter “Child Sexual Abuse Litigation ],” 68 Neb.L.Rev. 1, 37 (1989)2; R. Eatman & J. Bulkley, Protecting Child Victim/Witnesses: Sample Laws and Materials, at 9, Nat’l Legal Resource Center for Child Advocacy and Protection (1986); Berliner, The Child Witness: The Progress and Emerging Limitations, in Papers from a National Policy Conference on Legal Reforms in Child Sexual Abuse Cases, at 99 (1985); Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L. Rev. 1745, 1749-50 (1983); Oates, Gyler & Adler, The Hospital Child Abuse Team, in *532Child Abuse: A Community Concern, at 27 (K. Oates 1982).

B

I agree with the majority’s assertion that a proponent of a child-victim’s hearsay statements cannot satisfy section 13-25-129’s corroboration requirement merely by offering a child-victim’s hearsay statements for the truth of the matters asserted. As the majority notes, this would render meaningless section 13-25-129’s corroboration requirement.3 See maj. op. at 525.

However, the recognition that a child-victim’s hearsay statements may not be admitted solely on the basis of the truth of the matters asserted does not warrant the imposition of a prophylactic rule that a child-victim’s hearsay statements may never be considered at the corroboration phase of section 13-25-129. Indeed, given the legislature’s knowledge of the difficulty of prosecuting sexual-abuse cases because of the lack of corroborative evidence, I find it highly implausible that the legislature would have enacted a statute designed to make prosecution of child-abuse cases easier while imposing an admittedly impossible standard for the prosecutor to reach in the overwhelming majority of sexual-abuse cases. In particular, I do not believe that the legislature would impose a requirement that corroborative evidence cannot under any circumstances include a child-victim’s statements — or any inferences that might validly be obtained from the statements— especially in view of the statement of a Senate sponsor of section 13-25-129 that it “would be very difficult” for a child-victim to describe certain sexual acts “particularly given the terms that they use.” Hearings on S.B. 11, at hr. 14. Moreover, the legislature’s decision to omit any procedure to guide a trial judge in determining preliminary questions of admissibility strongly suggests that it intended that the trial judge, pursuant to CRE 104(a), would consider a child-victim’s hearsay statements “ ‘for their evidentiary worth as revealed by the particular circumstances of the case,’ ” People v. Montoya, 753 P.2d 729, 735-36 (Colo.1988) (quoting Bourjaily v. United States, 483 U.S. 171, 180, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987)). See Part I, supra, at 514-516.

As a plurality of the court stated in Stevens, a “ ‘ “stubborn insistence on corroboration that is impossible to obtain” ’ should not defeat the essential purposes of the child hearsay statute.” 796 P.2d at 952 (quoting Swan, 114 Wash.2d at 641, 790 P.2d at 624 (quoting State v. Jones, 112 Wash.2d 488, 496, 772 P.2d 496, 500 (1989))). We must liberally construe “corroborative evidence,” as used in section 13-25-129, “in order that the true intent and meaning of the general assembly may be fully carried out.” § 2-4-212, IB C.R.S. (1980). In construing an almost identical child hearsay statute on which section 13-25-129 was based, the Supreme Court of Washington held that “to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse. Such evidence ... includefs] a *533child victim’s precocious knowledge of sexual activity_” Swan, 114 Wash.2d at 623, 790 P.2d at 615 (footnote deleted); accord Jones, 112 Wash.2d at 495-97, 772 P.2d at 500. I am of the opinion that the Swan court’s holding correctly reflects our legislature’s intent in requiring “corroborative evidence” under subsection 13-25-129(l)(b)(II).

A child-victim’s statement, when used to demonstrate the child’s precocious knowledge of sexual anatomy and sexual acts, is not hearsay. E.g., In re Jean Marie W, 559 A.2d 625, 629 (R.I.1989); see, e.g., McCormick on Evidence § 250, at 741-42 (Cleary 3d ed. 1984); see also CRE 801(c) (hearsay is statement “other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”); Prudential Ins. Co. of Am. v. Sommers, 148 Colo. 212, 221, 365 P.2d 544, 549 (1961) (out-of-court statement offered for some purpose other than proving the truth of the matter asserted is not hearsay).

Psychologists and social workers specializing in child psychology have agreed that a child’s precocious knowledge of sexual acts and sexual anatomy, even more so than posttraumatic stress symptoms, strongly suggests that the child has been sexually abused.

While some of the behaviors observed in sexually abused children are consistent with a number of problems, others are more strongly associated with personal or vicarious sexual experience. Examples of behaviors that have greater specificity of sexual abuse include age-inappropriate knowledge of sexual acts or anatomy, sexualization of play and behavior in young children, the appearance of genitalia in young children’s drawings, and sexually explicit play with anatomically detailed dolls.
The presence in a young child of behaviors commonly observed in sexually abused children can be probative of abuse. Evidence of the behaviors is relevant because it has a tendency to prove that abuse occurred. Children with behaviors associated with sexual abuse — particularly sexual reactions— are more likely to have been abused than children without such behaviors. This conclusion does not ignore the fact that approximately twenty percent of sexually abused children demonstrate no observable behavioral reactions. Absence of behaviors does not disprove abuse, but presence of behaviors increases the likelihood of abuse. Evidence of behaviors is seldom dispositive, but evidence need not be dispositive to be logically relevant and admissible.
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Probative value declines as sexual behaviors and medical evidence decrease in proportion to nonsexual behaviors. When the only evidence consists of a number of ambiguous, nonsexual behaviors, the evidence may lack any probative value, or probative worth may be outweighed by the potential for unfair prejudice or jury confusion.
When a child demonstrates no sexual behaviors, but does evidence signs of serious anxiety or posttraumatic stress disorder, expert testimony may still be relevant. In this scenario, however, testimony serves only to establish that the child may have experienced some type of traumatic event. Such testimony is not specific to sexual abuse.

Child Sexual Abuse Litigation at 62-64 (emphasis supplied; footnotes omitted). Dr. Jon Conte, an associate professor at the School of Social Service Administration at the University of Chicago, has stated:

Behaviors sometimes exhibited by sexually abused children are rarely caused by any event other than sexual abuse. Sexual behavior with peers, toys, or animals; sexual language or knowledge that is new or atypical for a given child; or physical trauma to the genitals are all most likely to be caused by sexual abuse. Only in rare cases of severely disturbed children would it be likely to find such behaviors in the absence of actual sexual contact between the child and someone else.

A Look at Child Sexual Abuse 25-26 (1986); accord Benedek & Schetky, Prob*534lems in Validating Allegations of Sexual Abuse. Part 1: Factors Affecting Perception and Recall of Events, 26 J. of the Am.Acad. of Child and Adolescent Psychiatry, at 912-15 (1987), reprinted in Annual Progress in Child Psychiatry and Development [hereinafter “Child Psychiatry ”], at 629 (S. Chess, A. Thomas & M. Hertzig 1988) (“Although adolescents are presumed to be knowledgeable about erections and ejaculations and may use those words, such descriptions coming from a 3-year-old should wave a red flag.”); C. Walker, B. Bonner, & K. Kaufman, The Physically and Sexually Abused Child: Evaluation and Treatment 115, 142 (1988); S. Sgroi, Handbook of Clinical Intervention in Child Sexual Abuse 39-79 (1982); see also In re Nicole V, 71 N.Y.2d 112, 122, 524 N.Y.S.2d 19, 23, 518 N.E.2d 914, 918 (1987) (citing testimony of therapist as corroborative evidence: “She found it significant that Nicole repeated her claims to various people over a period of time in a consistent manner because ... children ‘do not have the skill at lying that adults do’ and thus ‘cannot be consistent [about lying] for a period of several months to several different people.’ ”) (brackets in original).

As the majority states, one of the concerns raised in the Senate Judiciary Committee’s discussion of the bill creating section 13-25-129 was that a “ ‘very imaginative’ ” child should not be permitted to convict an innocent person. Maj. op. at 524 (quoting Hearings on S.B. 11, supra note 1; see State v. Hunt, 48 Wash.App. 840, 847-48, 741 P.2d 566, 571 (1987) (corroboration requirement protects against fabricated or imagined allegations when defendant is unable to cross-examine child-victim). However, the Senate Judiciary Committee was also made aware, see Hearings on S.B. 11, at hr. 14, that the available information regarding children is that most young children, especially children as young as K.B., the victim in this case, are unable to “imagine” or fabricate stories of explicit sexual activities without having been exposed to such activities, see, e.g., In the Interest of O.E.P., 654 P.2d 312, 318 (Colo.1982) (“A child of three years is hardly adept at the type of reasoned reflection necessary to concoct a false story relating to a bizarre sexual experience implicating the child’s mother.”); Bodine v. State, 737 P.2d 1072, 1075 (Alaska App.1987) (court concluded that, given child’s age of five years old at the time of the sexual assault, “the maturity and accuracy of the detail in her description of the offense provided intrinsic assurance of the reliability of her statement”), cited in Murray v. State, 770 P.2d 1131, 1138 (Alaska Ct.App.1989); State v. Robinson, 153 Ariz. 191, 202, 735 P.2d 801, 812 (1987) (“Without parental manipulation or exposure to adult sexual acts, neither of which even was alleged in this case, five-year-old girls lack the knowledge and experience necessary to fabricate and graphically describe the types of sexual abuse alleged here.”); Jones, 112 Wash.2d at 497, 772 P.2d at 500-01 (“[Child-victim] has described and demonstrated with particularity acts of sexual gratification that even the most imaginative adult might not conceive in a vacuum of personal experience.”).

In this case, K.B.’s statements indicate that K.B. possessed knowledge of sexual acts and sexual anatomy that three-and-a-half-year-old children could not have obtained “ ‘in a vacuum of personal experience,’ ” Swan, 114 Wash.2d at 631-32, 790 P.2d at 620 (quoting Jones, 112 Wash.2d at 497, 772 P.2d at 500). While watching her brother’s diaper being changed, K.B. stated that the defendant had a penis like her brother’s, “but it’s bigger and he hurts me with it.” K.B. repeated this statement to Officer Schroer. When her babysitter’s mother asked her where her father hurt her, K.B. pointed to her vaginal area. In Schroer’s presence, K.B. undressed two anatomically correct dolls, and placed the man doll on top of the girl doll with the man doll’s penis on the girl doll’s vagina. More than a month later in therapist Freeman’s presence, K.B. demonstrated the identical sexual act with a different set of anatomically correct dolls. K.B. indicated to Schroer that the defendant placed his “honey” in her mouth, and “peed” in her mouth.

*535All of these statements may be used, independent of the truth of the matters they assert, to show K.B.’s precocious sexual knowledge. This knowledge, which is a “classic symptom of child abuse,” Swan, 114 Wash.2d at 633, 790 P.2d at 620, accord Nicole V., 71 N.Y.2d at 121, 524 N.Y. S.2d at 23, 518 N.E.2d at 918, strongly suggests that K.B. was sexually abused. K.B.’s precocious sexual knowledge, combined with the corroborative evidence that the defendant had numerous opportunities to commit the sexual abuse against K.B. in the absence of eyewitnesses, see, e.g., Idaho v. Wright, — U.S. -, 110 S.Ct. 3139, 3152, 111 L.Ed.2d 638 (1990), is sufficient “to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief” that the sexual abuse that was the subject of K.B.'s hearsay statements occurred. See Stevens, 796 P.2d at 953 (plurality opinion); id. at 957 (Lohr and Quinn, JJ., concurring). The Supreme Court of Washington and other courts that have considered this issue have held that precocious sexual knowledge — obtained from a child’s hearsay statements— constitutes corroborative evidence. See, e.g., Swan, 114 Wash.2d at 631-33, 790 P.2d at 620; Jones, 112 Wash.2d at 497, 772 P.2d at 500; Murray, 770 P.2d at 1138; Nicole V., 71 N.Y.2d at 121-22, 524 N.Y.S.2d at 23-24, 518 N.E.2d at 918-19.

I would permit trial courts to consider a child-victim’s hearsay statements “ ‘for their evidentiary worth as revealed by the particular circumstances of the case,’ ” Montoya, 753 P.2d at 735-36 (quoting Bourjaily, 483 U.S. at 180, 107 S.Ct. at 2781). In this case, the trial judge could reasonably find that K.B.'s precocious sexual knowledge, combined with the corroborative evidence that the defendant had the opportunity to commit the sexual abuse against K.B., satisfied section 13-25-129’s corroboration requirement.

Ill

The majority’s approach to construing section 13-25-129’s corroboration requirement fails to recognize probative evidence of sexual abuse that is not hearsay. In so doing, the majority creates unnecessary limitations in sexual-abuse prosecutions.

First, although the majority is unwilling to accept as corroborative evidence a child’s precocious sexual knowledge, it is willing to accept corroborative evidence — posttrau-matic-stress evidence — that is less probative4 of sexual abuse. See maj. op. at 525.

Second, the majority states that an example of corroborative evidence is “medical or scientific evidence.” See maj. op. at 525. However, the majority is unwilling to accept well-known medical and/or scientific evidence that children are unable to fabricate details of sexual acts or sexual anatomy. Nor does the majority explain how K.B., a three-and-a-half-year-old child, could consistently sustain, over a period of six months, allegations against her father that detailed sexual acts and sexual anatomy.

Additionally, while the majority states that “competent and relevant expert opinion[] tending to establish the commission of the [abusive] act described in the child’s statement” is another example of corroborative evidence, maj. op. at 525, the majority’s holding would prevent a child-psychology expert from testifying, on the basis of a child-victim’s statements, that the child may have been sexually abused based on the child’s precocious knowledge of sexual acts and sexual anatomy.

In short, with its unduly narrow approach to construing section 13-25-129, the *536majority has failed to effectuate the legislature’s intentions in enacting section 13-25-129, and has misconstrued what evidence may constitute corroborative evidence. Contrary to the majority’s view, permitting a trial judge to consider K.B.’s hearsay statements and permitting the use of K.B.’s precocious knowledge of sexual acts and sexual anatomy as corroborative evidence promote, rather than diminish, the legislature’s intention to ensure that a child-victim’s allegations are the product of her experiences and not her imagination.

Accordingly, I respectfully concur in part and dissent in part.

I am authorized to state that Justice VOLLACK joins in this concurrence and dissent.

. The majority's reliance on a hearing held by the Senate Judiciary Committee, which was considering the bill proposing section 13-25-129, is misplaced. The hearing is at best ambiguous concerning how "corroborative evidence" should be defined. The same senator on whose statements the majority relies for the proposition that "corroborative evidence” includes only evidence independent of a child-victim’s hearsay statements stated that:

[I]n these cases generally [the child-victims'] life experiences have not [inaudible] that they can fabricate these types of experiences. And if you look at the testimony they give and the terms they use to describe these kinds of actions — and you don’t get this kind of stuff on TV — you can make up an entire murder scene at a pretty early age from what you’ve seen on TV. This kind of a sexual crime, unless you’re watching the TV other than most children do, would be very difficult for you to describe and particularly given the terms that they use....

Hearings on S.B. 11 Before the Senate Comm, on the Judiciary [hereinafter “Hearings on S.B. 11 ”], 54th Gen. Assembly, 1st Sess., Audio Tape No. 83-3, at hr. 14 (Jan. 19, 1983) (statement of Sen. Soash). These statements suggest that corroborative evidence may be derived from a child-victim’s hearsay statements. Moreover, one of the Judiciary Committee members stated, "I was just wondering ... how this really works in practicality, you know, just hearing the words but I don’t know how it works.” Id.

. In Child Sexual Abuse Litigation, the authors stated:

There is often no physical evidence of child sexual abuse. There are several reasons for lack of physical findings in sexually abused children. Many abusive acts, such as fondling, kissing, fellatio, cunnilingus, or the use of the child in pornography leave no marks. Even full penile penetration may not damage the hymen. Some sexual offenders suffer from erectile and/or ejaculatory dysfunction. Severe injuries to the genitalia of sexually abused children are rare. Healing of injuries in the genital area may be complete and rapid, so that no physical evidence remains when the child comes to the medical examination.

68 Neb.L.Rev. at 37 (footnotes omitted).

. The majority's concern regarding the effect to be given the statute is more persuasive than its assertion that to permit in any way a child-victim’s hearsay statements to be “corroborative evidence" violates the "bootstrapping” rule.

It is highly questionable whether the "bootstrapping” prohibition is applicable in the context of section 13-25-129. The "bootstrapping” prohibition was adopted to prevent the proponent of a presumptively unreliable hearsay statement of a co-conspirator from satisfying the requirements of the co-conspirator hearsay exception, see, e.g., CRE 801(d)(2)(E), on the basis of the hearsay statement itself. See, e.g., Glosser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942); People v. Montoya, 753 P.2d 729, 734-35 (Colo.1988). At the corroboration phase of section 13-25-129 proceedings, the child-victim’s hearsay statements have already been found to contain "sufficient safeguards of reliability.” Consequently, the statements do not "lift [themselves by their] own bootstraps to the level of competent evidence,” Glasser, 315 U.S. at 75, 62 S.Ct. at 467 — rather, they have satisfied any "competence” objection because they have been found to be constitutionally reliable.

Moreover, the efficacy of the "bootstrapping” rule was significantly diminished by the holding in Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987), that Fed.R.Evid. 104(a) "superseded” Glosser's "bootstrapping” rule.

. Child Sexual Abuse Litigation at 62-64. One social scientist has stated:

One of the difficulties in conducting research on the effects of trauma is that the traumatic event may be embedded in a long series of stressors. Physical and sexual abuse of children, for example, are often associated with parental separations, financial hardship, parental substance abuse, and foster placement. Similarly, after the death of a family member, families often break up, change associates, or relocate. It may be difficult to discriminate the effect of the traumatic event itself from the effects of preexisting or ensuing stressors.

Lyons, Posttraumatic Stress Disorder in Children and Adolescents: A Review of the Literature, in Child Psychiatry, at 462 (1988).