On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.
In this appeal we consider significant evidentiary issues pertaining to the admissibility of out-of-court statements made by child victims of sexual abuse. The issues presented are whether the trial court properly declined to admit the children's out-of-court accounts to several mental-health professionals of incidents of sexual abuse under either the so-called "medical-treatment exception," Evidence Rule 63(12)(c), or the "tender-years exception," Evidence Rule 63(33), to the hearsay rule.
This suit arose following an investigation by the Division of Youth and Family Services (DYFS) of sexual abuse at Tots 'N Toddlers Day Care Center (Tots 'N Toddlers) in Berlin, New Jersey. That investigation resulted in the revocation of Tots 'N Toddlers' operating license in late 1984 and the arrest of one of its owners, Robert Knighton. The alleged victims were five young boys who had attended Tots 'N Toddlers and were between the ages of one and four years old at the time of the acts of sexual abuse. Plaintiffs allege that from late 1983 through 1984, the children began to exhibit behavioral and physical symptoms, including severe constipation, compulsive masturbation, bruises, sleeping difficulties, and in one child the outbreak of venereal warts, an affliction most commonly transmitted through sexual contact. The children eventually were removed from Tots 'N Toddlers after several of them identified Robert Knighton as the perpetrator of various acts of sexual abuse. Knighton was arrested in September 1984, and shortly thereafter DYFS revoked the license of Tots 'N Toddlers.
Aware that the children could suffer long-term effects from the alleged sexual abuse, the children's parents arranged for
them to receive psychological care. Psychiatrists diagnosed and treated four children for sexual abuse. The fifth child received treatment from a doctor of social work.
The parents of three of the children, individually and as guardians ad litem for their children, instituted a civil action against R.L.N., Inc., Robert Knighton, and his wife, Nancy Knighton, alleging that Robert Knighton had sexually abused the children and that Nancy Knighton had been negligent and had condoned the abuse. They further alleged that DYFS had negligently trained its employees concerning sexual-abuse complaint-investigation procedures. The parents of the other two boys filed a separate suit, alleging, in addition to the claims against the Knightons and DYFS, that a DYFS investigator, Jeffrey Denbo, had slandered and defamed them during the course of the investigation. The trial court granted DYFS's and Denbo's summary-judgment motions, and consolidated the two actions, leaving the Knightons and R.L.N., Inc. as the only defendants.
The trial court held an Evidence Rule 8 hearing in October 1988 to determine the admissibility of the five children's out-of-court statements made to their therapists. At the hearing plaintiffs' counsel informed the court that the children's statements, which described the sexual abuse and identified the perpetrator, constituted plaintiffs' sole proof that Robert Knighton was the person who had sexually assaulted the boys. Plaintiffs asserted that only the therapists' testimony would be available at trial because the children would be traumatized if required to describe the sexual assaults and because several of the children no longer remembered the sexual incidents.
Plaintiffs did not present testimony from either the therapists, parents, or children at the hearing. Instead, plaintiffs described the scope of the therapists' potential testimony through a three-page factual stipulation and a therapist's report on each child. The stipulation and the reports describe the children's physical and emotional symptoms, the nature of the
therapy sessions with the doctors, and the children's statements to the therapists describing the incidents of sexual abuse and identifying Robert Knighton as the perpetrator.
In arguing that the children's hearsay statements should be admitted at trial to prove that defendant Robert Knighton had abused the children, plaintiffs maintained that the statements were admissible under the medical-treatment exception to the hearsay rule, Evidence Rule 63(12)(c), and, alternatively, under the tender-years exception to that Rule that recently had been proposed in State v. D.R., 109 N.J. 348, 537 A.2d 667 (1988).
The court declined to admit the statements pursuant to the medical-treatment exception, finding that plaintiffs' submissions did not provide sufficient information to enable it to determine whether the children had made the statements in good faith. The court explained the requirement:
The good faith that the [c]ourt is called upon to rule on depends on various factors in the particular case. It can involve the question of who made the statement, that is whether the statement was made by the minor to the treating person or whether it was made by someone other than the child. * * * [W]hen and how the statements are made are important, the time period which may have elapsed, * * * what was discussed with the minor child and why * * *.
The court's primary rationale for refusing to admit the statements, however, was based on its conclusion that plaintiffs' factual submissions failed to demonstrate that the portion of the children's statements to the doctors identifying Robert Knighton as the perpetrator of the sexual abuse was "vital" or "necessary" to medical treatment. The trial court also refused to admit the hearsay statements pursuant to State v. D.R., supra, 109 N.J. 348, 537 A.2d 667, reasoning that although that decision had sanctioned the admissibility of certain hearsay statements in child-sexual-abuse prosecutions, no formal rule had yet been adopted and, in any event, the decision's proposed rule applied only to criminal, not civil, cases.
After the trial court's ruling, plaintiffs conceded that if the children's statements were not to be admitted at trial through the testimony of the therapists, they had no other proof that
Knighton had been the abuser. Consequently, the trial court dismissed plaintiffs' case.
A divided Appellate Division affirmed the trial court's evidentiary rulings but unanimously reversed the dismissal of the slander complaint against Denbo. (Plaintiffs had not appealed the dismissal of DYFS.) In an unpublished opinion, the court held that plaintiffs had failed to demonstrate that the children's statements had been made in good faith or that identification of Robert Knighton was relevant to treatment. The court also found that the record did not reveal whether the children had believed that their statements to the therapists would facilitate treatment. The court noted that even if the statements had satisfied those criteria, it would have excluded one child's statement because it had been made to a doctor of social work, not a physician as the Rule requires.*fn1 Finally, the court concluded that Evidence Rule 63(33), the Rule implementing this Court's decision in State v. D.R., supra, 109 N.J. 348, 537 A.2d 667, did not apply, both because the Rule was not in force at the time of the Evidence Rule 8 hearing, and because the Rule, as adopted, did not apply to civil actions.
A separate concurring opinion stressed that the rationale behind Evidence Rule 63(12)(c) is that the declarant knows that he or she is injured and therefore is motivated to describe accurately his or her symptoms and their source. The concurrence concluded that because the children apparently had not considered themselves to be sick, injured, or in need of treatment, the statements had been properly excluded. The opinion, however, noted that a remand would be appropriate to "afford plaintiffs an opportunity to establish the relevance to psychiatric treatment of the abuser's identity and role in the victims'
lives" if admissibility of the abuser's identity were the sole issue.
The dissent concluded that the children's statements were admissible under both the medical-treatment and the tender-years exceptions to the hearsay rule. Regarding the former, the dissent found that identification was relevant to treatment, that young children might understand their need for treatment, and that the inherent reliability of children's accounts of sexual abuse provided further support for admissibility under the exception. The dissent also concluded that the tender-years exception, Evidence Rule 63(33), should apply to this case despite its literal limitation to criminal actions, reasoning that
[i]t is anomalous that a defendant such as the alleged attacker in this case could be sent to jail based upon the child's out-of-court statements, yet the child would remain unrecompensed from the defendant's assets in a parallel civil suit, because the statements would be civilly-inadmissible. I understand there are situations where due process considerations have limited civilly-admissible evidence from criminal ...