DIVISION OF CHILD ABUSE AND DOMESTIC VIOLENCE
Department for Human Support Services
Cabinet for Health and Family Services
Special Statutory Provisions in the Prosecution of Crimes of Child Sexual Abuse
Investigation of Crimes of Child Sexual Abuse
To minimize further trauma to child victims and to promote thorough and efficient investigations of these crimes, Kentucky statutes mandate specialized procedures for the investigation of reported or suspected sexual abuse of a child. KRS 431.600. Multidisciplinary teams, composed of law enforcement officers and social workers, conduct such investigations. In addition, other members of the multidisciplinary teams may be: Commonwealth's and county attorneys, mental health professionals, medical professionals, victim advocates, educators, and other related professionals. Such teams operate pursuant to protocols and procedures developed by the Kentucky Multidisciplinary Commission on Child Sexual Abuse and promulgated by the Attorney General, as well as pursuant to local protocols as approved by the Kentucky Multidisciplinary Commission on Child Sexual Abuse.
The Involvement of Children in Legal Proceedings
Commonwealth's attorneys, county attorneys and the Cabinet for Families and Children must minimize the involvement of the child in legal proceedings, "avoiding appearances at preliminary hearings, grand jury hearings, and other proceedings when possible." KRS 431.600(6). Commonwealth attorneys and county attorneys are also required by law to familiarize child victims with the proceedings which will be conducted as part of the trial. KRS 431.600(4). If adequate personnel are available, each Commonwealth attorney's and each county attorney's office shall have a child sexual abuse specialist, and each office shall provide for one lead prosecutor on the case. KRS 431.600(3) and (5). When a decision is made NOT to prosecute a case, the Commonwealth's attorney or the county attorney shall explain the decision not to prosecute, and very importantly, they must refer the victim for counseling and other appropriate services. KRS 431.600(7).
Child Witnesses and Their Testimony
The 1996 General Assembly passed key legislation related to the testimony of child victims of sexual abuse. This legislation, which has been strongly pushed by First Lady Judi Patton and sponsored by Senator Jeff Green, required that in certain types of cases, children may testify by videotape or closed circuit television and be spared the psychological hardship of having to confront their perpetrator in the courtroom. KRS 421.350. Such testimony is available for prosecution "including but not limited to" offenses of rape, sodomy, sexual abuse, sexual misconduct, and indecent exposure (KRS 510.040 to 510.150), promoting prostitution (KRS 529.030 to 529.050), permitting prostitution (KRS 529.070), incest (KRS 530.020), endangering the welfare of a child (KRS 530.060), unlawful transaction with a minor (KRS 530.064), use of a minor in a sexual performance (KRS 531.310), promoting the sexual performance of a minor (KRS 531.320), using minors to distribute material portraying a sexual performance by a minor (KRS 531.370), and all dependency proceedings pursuant to KRS Chapter 620. KRS 421.350(1).
In order for the child to testify by videotape or closed circuit television, the crime must have been committed against a child twelve years of age or younger. This important protection can apply to the direct victim of the crime or to a witness to the offense. KRS 421.350(1). Finally, the court will permit such testimony only upon the filing of a motion for such and upon the finding of a compelling need on the part of the child witness, compelling need being defined as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." KRS 421.350(5).
A child may testify outside the courtroom by two different methods. The child may testify by closed circuit television or by recorded videotape for viewing in the courtroom by the court and the jury. KRS 421.350(2) and (3). Under both methods, "only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence the court finds would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony." KRS 421.350(2) and (3). The individuals operating the equipment must be confined from the child's sight and hearing. The court "shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant." KRS 421.350(2) and (3). In addition, for videotaped testimony, the court must fulfill additional requirements to ensure the accuracy of the recording and the identifiability of the voices on it. KRS 421.350.
Child Sexual Abuse Accommodation Syndrome
Courts in some states have permitted the introduction into evidence of expert testimony concerning Child Sexual Abuse Accommodation Syndrome. This Syndrome may be displayed in children who are victims of sexual abuse. They may exhibit secrecy, helplessness, entrapment and accommodation, delay in disclosure, and retraction. However, the Kentucky Supreme Court has consistently ruled that evidence of the Child Sexual Abuse Accommodation Syndrome is inadmissible in Kentucky courts. Hellstrom v. Commonwealth, Ky., 825 S.W.2d 612, 613-614 (1992)(and cases cited therein). In its most recent visitation of the issue, the Kentucky Supreme Court held that expert testimony may not be offered even in rebuttal by the prosecution for the very limited purpose of explaining the psychological dynamics surrounding a recantation. Such testimony would have explained various reasons child victims sometimes recant their testimony, such as threats, imposition of blame, fear of loss of home, and fear of the legal system. Newkirk v. Commonwealth, Ky., 937 S.W.2d 690 (1996).
Testimonial Privileges in Cases of Child Abuse
Only attorneys and members of the clergy are exempted from the mandatory reporting of child abuse or from testifying in court in cases of child abuse. According to Kentucky statute, "neither the husband-wife nor any professional-client/patient privilege, except the attorney-client and clergy-penitent privilege, shall be a ground for refusing to report under this section or for excluding evidence regarding a dependent, neglected, or abused child or the cause thereof, in any judicial proceedings resulting from a report pursuant to this section." KRS 620.050(2). See Mullins v. Commonwealth, 96-SC-836-DG (Ky. Sup. Ct. November 20, 1997).