also dissenting:
Because I believe the evidence shows that the trial court properly found that the child’s unsolicited, out-of-court statements to her mother, Maria, and therapist Cheryl Wolff contained sufficient safeguards of reliability, I respectfully dissent.
In order for a child’s out-of-court statement concerning an act of sexual abuse to be admitted at trial, section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10) requires, inter alia, that the trial court first find that the time, content and circumstances of the statement “provide sufficient safeguards of reliability.”
The majority finds that the content of the child’s statements supports their reliability. As the majority points out, the child’s statements to her mother and Wolff were consistent with each other, were made spontaneously rather than in response to leading questions, and reflected a knowledge of sexual activity which is unexpected and unusual for a three-year-old child. The majority, however, finds that the time and circumstances of the child’s out-of-court statements fail to provide sufficient safeguards of their reliability. Thus, the majority holds that the State failed to satisfy the section 115 — 10 requirements.
Concerning the circumstances element, the majority notes that, before making the statements, the child was interviewed by a police officer, a Department of Children and Family Services (DCFS) worker, and a hospital counselor at Mt. Sinai Hospital, which had a special program for evaluating cases of child sexual abuse. The majority states, “A trial court should not presume from a silent record that suggestive interview techniques were not used.” (151 Ill. 2d at 45.) According to the majority, the State has failed to establish that the child’s statements were not the result of adult prompting or manipulation, and the majority characterizes the circumstances surrounding the child’s statements as “questionable.” 151 Ill. 2d at 46.
The “questionable” circumstances to which the majority refers appear to be no more than that which is mandated by law. Pursuant to the Abused and Neglected Child Reporting Act (Act) (Ill. Rev. Stat. 1989, ch. 23, par. 2051 et seq.), the DCFS has the sole responsibility to receive and investigate reports of child abuse, except where investigations by other agencies may be required with respect to reports alleging, inter alia, sexual abuse. The DCFS may also delegate the performance of the investigation to a law enforcement agency as well as to designated private social service agencies. Ill. Rev. Stat. 1989, ch. 23, par. 2057.3.
I am troubled by the majority’s seeming distrust of those professionals who are mandated by law to investigate allegations of child abuse. Child abuse investigations involving young children are particularly problematic. The investigation process is no doubt hampered by the young victim’s limited language and cognitive skills. That notwithstanding, the investigating agents are charged with the responsibility, and expected, to obtain competent and sufficient evidence for the successful prosecution of an alleged child abuser. At the same time, the investigators must ascertain the nature and extent of the injury to the child in order to provide appropriate social and medical services. In light of this clear and weighty mandate, and in the absence of any supporting evidence, I can neither condone nor join in the majority’s unwarranted characterization of the investigation process conducted by these professionals.
Moreover, section 115 — 10 requires only a finding that the time, circumstances and content of the statement provide sufficient safeguards of reliability. The statute does not require the State to present and to discount every factor which might have influenced the child victim’s statements. Undoubtedly, given the age and early developmental stage of this child, in order for the investigators to elicit the necessary information, they most likely engaged in an interactive, prompting interview approach. However, even if leading questions were used, if appropriate, that fact does not necessarily render their responses untrustworthy. Idaho v. Wright (1990), 497 U.S. 805, 818, 111 L. Ed. 2d 638, 654, 110 S. Ct. 3139, 3148, citing J. Myers; Child Witness Law & Practice §4.6, at 129-34 (1987).
I also disagree with the majority’s statements that the trial court was unable to determine whether the child was questioned in a suggestive manner and encouraged to accuse the defendant of sexual abuse, or that the child’s knowledge of sexual activity was due to sexual abuse or was the result of suggestive interview techniques.
Other than the fact that the legally mandated child abuse investigation occurred and that a hospital counselor also interviewed the child, the majority fails to point to any evidence to support even a presumption that suggestive interview techniques were used. Unless we are to believe that the investigating agents had some interest in seeing this defendant prosecuted, I believe it to be a safe assumption that the person most likely to encourage the child to accuse this defendant was the child’s mother. The mother was available and testified during pretrial proceedings and at trial. Any improper influence on her part could have been determined from her testimony.
Further, I believe that the unique terminology used by the child to describe the events, as well as the extensiveness of her statements, could properly guide the trial court in its determination on the issue of suggestiveness. Unless, of course, we are to conclude that this unique terminology was used by the DCFS worker, the police officer or the hospital counselor, during their various encounters with the child, in some attempt to elicit a statement from the child. Absent some contrary evidence, the fair presumption is that the investigation was not inappropriately suggestive.
I recognize that the position which the majority here takes is not a matter of judicial indifference to the protection of children, but is rather an effort to maintain fairness and objectivity in the administration of justice. However, in its attempt at fairness and objectivity, the majority unfairly casts a shadow of suspicion and distrust on the child protective services process and effectively sets up barriers to. thorough child abuse investigations.
The majority also finds that the timing of the victim’s statements, when viewed with the circumstances surrounding the statements, fails to provide sufficient safeguards of reliability as required by section 115 — 10. The majority acknowledges that the child’s delay in reporting the abuse did not render the statements unreliable. The majority even recognizes that a failure to report the abuse may be the result of feelings of fear and reluctance. The sole factor which the majority finds fatal to satisfaction of the time element is that the child made her statements “only after substantial adult intervention.” 151 Ill. 2d at 46.
I believe it to be without dispute that there is great disparity in the level of mental and intellectual functioning of a three-year-old child as compared to that of an adult, or even to that of an older child. I further believe that it does not require particularized training in the area of childhood development to recognize that a child of three is limited in her perceptions by her life experiences. Thus, I question the ability of a child of such young age, despite precociousness, to even comprehend the nature of sexual abuse, much less the accompanying sense of victimization which usually prompts, in an older person, an immediate, unsolicited report of the incident.
The event which triggers a three-year-old to relate an incident which constitutes sexual abuse differs quite decidedly from that of an older person who is readily able to perceive the impropriety of such conduct and report the offense without prompting. I applaud the majority’s recognition of the impact which fear and reluctance may have on a child’s motivation to report allegations of sexual abuse. However, to attribute fear and reluctance to a three-year-old’s delay in relating the abuse erroneously presumes that the child, in the first place, even perceives that she has been victimized. In this instance, the mere fact that there was “substantial adult intervention” would not defeat the reliability of the child’s statement.
In discussing the rationale which underlies the theory of the hearsay rule, the United States Supreme Court in Idaho v. Wright (1990), 497 U.S. 805, 819, 111 L. Ed. 2d 638, 655, 110 S. Ct. 3139, 3148-49, stated that the safeguards of reliability must be shown from the totality of the circumstances surrounding the making of the statement which deem the person making the statement particularly worthy of belief. The most significant circumstance in consideration of this three-year-old child’s statement is her young age.
Because I believe that the trial court properly exercised its discretion in finding, from the totality of circumstances surrounding the child-victim’s statements, that the child was particularly worthy of belief, I would affirm the trial court’s admission of the statement.