dissenting:
I respectfully dissent from the majority opinion on two grounds. First, the majority decision does not correctly apply the standard of review in reaching its holding. Second, the majority opinion errs in its analysis of the requirements of section 115 — 10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10).
This case involves the alleged sexual abuse of a three-year-old girl. The defendant, a 60-year-old man, baby-sat the victim, her nine-year-old brother, and her two-year-old sister. The victim was diagnosed with hymenal trauma consistent with sexual abuse. Prior to trial, the circuit court held a hearing and found the victim not competent to testify. Thereafter, the trial court conducted a hearing pursuant to section 115 — 10 to determine if certain out-of-court statements which the victim had made concerning the alleged sexual abuse could be admitted at trial as an exception to the hearsay rule. Following the hearing, the trial court found that based on its interpretation of section 115 — 10, the victim’s mother could testify at trial concerning statements which the victim had made to her on July 1 and July 14, 1988. The trial court further found that Cheryl Wolff, a therapist, could testify concerning certain statements that the victim made to her on July 14, 1988. The trial court also excluded certain evidence and out-of-court statements that it found did not meet the requirements of section 115 — 10.
The mother testified that on July 1, 1988, when she pulled the victim’s underpants in getting her ready for bed, the victim said, “Don’t do that.” When asked why, the victim responded, “Because Bart [the defendant] does that.” The mother then asked the victim what else the defendant did and the victim answered, “He put his lollipop in my cola.” According to the mother, the victim also said that “Bart *** put his tongue on her mouth— he put his tongue in her cola.” The mother testified that “cola” is a Spanish term for vagina and “lollipop” meant penis. A few minutes later the victim reiterated that Bart had put his tongue on her “privates” and hurt her and added that Bart “put the lollipop in her mouth.” The mother also stated that on July 14, 1988, the victim told her that the defendant had put her head in a toilet and flushed it. Wolff testified that the victim additionally told her that the defendant had put the victim’s head in the toilet. The victim further told her mother that when the defendant had put his “lollipop” in her “cola” he said, “I’m coming, I’m coming.” The victim also told her mother that the defendant had made her “all wet” and “made her go potty.”
In finding the defendant guilty of two counts of aggravated criminal sexual assault, the trial court stated that the “lynchpin of the evidence” against the defendant was the statements the victim made to her mother and Wolff which were admissible pursuant to section 115 — 10. Moreover, the trial court specifically stated that, while it did not believe all of the mother’s testimony, it did believe the truth of the July 1 and July 14, 1988, out-of-court statements that the victim made to the mother.
In reversing the defendant’s conviction, the appellate court stated: “We find that the statements are inadmissible because the facts in the case at bar indicate that there were insufficient safeguards of reliability with respect to the timing of the allegations and with respect to circumstances under which the allegations were made.” (Emphasis added.) (208 Ill. App. 3d at 412.) In affirming the appellate court decision, the majority opinion states, “After carefully reviewing the record, we hold that the State did not adequately establish that the victim’s hearsay statements were reliable within the meaning of section 115 — 10.” (Emphasis added.) (151 Ill. 2d at 43-44.) Both the appellate court and the majority opinion misapplied the standard of review in examining the trial court ruling.
The sole issue presented by this appeal is whether the trial court clearly abused its discretion in admitting the out-of-court statements. The majority opinion, while paying lip service to the correct standard of review, goes on to merely substitute its judgment for that of the trial court. Likewise, the appellate court below in reaching its holding made a de novo factual determination. Rather than playing the role of trier of fact, this reviewing court is limited to addressing the following question: Was the trial court’s determination that the out-of-court statements were sufficiently reliable as to time, content, and circumstances clearly contrary to the manifest weight of the evidence? The answer to this question is no.
Here, a rational trier of fact could have concluded that a five-week delay in the three-year-old victim’s reporting sexual abuse is understandable given her fear of the defendant, who allegedly pushed her head into a toilet and told her not to tell her mother. Further, Illinois courts have consistently recognized that delay in reporting incidents of child sexual abuse is common, and any evidence of delay affects the weight rather than the admissibility of the evidence. (See In re M.M. (1988), 171 Ill. App. 3d 334 (where the court held that the approximately six-month delay affected only the weight, not the admissibility, of the victim’s statements under section 115 — 10); People v. Anderson (1992), 225 Ill. App. 3d 636 (where the child had denied any sexual abuse when interviewed over 20 times over the course of a year by a mental health director).) Accordingly, the trial court, within its discretion, could have concluded that the victim’s statements were sufficiently reliable as to timing.
Next, even the majority opinion finds that the content of the victim’s statements tends to support their reliability. The victim gave consistent accounts of the sexual abuse to her mother on two occasions and the victim’s statements revealed a knowledge of sexual terminology unexpected for a three-year-old child. Additionally, the fact that the victim used Spanish terms in describing the sexual activity indicates that she was not merely repeating what an interviewer may have told her.
Finally, a rational trier of fact could have concluded that the circumstances surrounding the victim’s statements provided sufficient safeguards of reliability. The victim’s statements were spontaneous and were not in response to leading questions. The victim first admitted the sexual abuse to her mother, approximately five weeks after the sexual abuse occurred. Illinois courts have found that child victims of sexual abuse tend to repress the incident and will not likely discuss it with anyone but the mother. People v. Hatfield (1987), 161 Ill. App. 3d 401.
The majority opinion, in analyzing the circumstances surrounding the victim’s statements, places great emphasis on the fact that the victim was interviewed by at least three persons before admitting that she was sexually abused and that the State failed to affirmatively demonstrate that the victim’s statements were not the result of adult manipulation. The majority concludes that this “substantial adult intervention” forces the court to hold that the trial court abused its discretion in admitting the victim’s out-of-court statements. The majority misconstrues the plain language of section 115 — 10. The statute simply requires the trial court to examine the totality of the circumstances surrounding a victim’s statements to determine if they are reliable. Contrary to the majority holding, there is nothing in the statute which requires the State to affirmatively set forth the details of what transpired each time the victim was interviewed by an adult.
In summary, I find that the trial court’s determination was not clearly contrary to the manifest weight of the evidence. Therefore, I dissent.