63.2-1522 - Admission of evidence of sexual acts with children. - Virginia Statutes

§ 63.2-1522. Admission of evidence of sexual acts with children.

A. In any civil proceeding involving alleged abuse or neglect of a childpursuant to this chapter or pursuant to §§ 16.1-241, 16.1-251, 16.1-252,16.1-253, 16.1-283 or § 20-107.2, an out-of-court statement made by a childthe age of twelve or under at the time the statement is offered intoevidence, describing any act of a sexual nature performed with or on thechild by another, not otherwise admissible by statute or rule, may beadmissible in evidence if the requirements of subsection B are met.

B. An out-of-court statement may be admitted into evidence as provided insubsection A if:

1. The child testifies at the proceeding, or testifies by means of avideotaped deposition or closed-circuit television, and at the time of suchtestimony is subject to cross examination concerning the out-of-courtstatement or the child is found by the court to be unavailable to testify onany of these grounds:

a. The child's death;

b. The child's absence from the jurisdiction, provided such absence is notfor the purpose of preventing the availability of the child to testify;

c. The child's total failure of memory;

d. The child's physical or mental disability;

e. The existence of a privilege involving the child;

f. The child's incompetency, including the child's inability to communicateabout the offense because of fear or a similar reason; and

g. The substantial likelihood, based upon expert opinion testimony, that thechild would suffer severe emotional trauma from testifying at the proceedingor by means of a videotaped deposition or closed-circuit television.

2. The child's out-of-court statement is shown to possess particularizedguarantees of trustworthiness and reliability.

C. A statement may not be admitted under this section unless the proponent ofthe statement notifies the adverse party of his intention to offer thestatement and the substance of the statement sufficiently in advance of theproceedings to provide the adverse party with a reasonable opportunity toprepare to meet the statement, including the opportunity to subpoenawitnesses.

D. In determining whether a statement possesses particularized guarantees oftrustworthiness and reliability under subdivision B 2, the court shallconsider, but is not limited to, the following factors:

1. The child's personal knowledge of the event;

2. The age and maturity of the child;

3. Certainty that the statement was made, including the credibility of theperson testifying about the statement and any apparent motive such person mayhave to falsify or distort the event including bias, corruption or coercion;

4. Any apparent motive the child may have to falsify or distort the event,including bias, corruption, or coercion;

5. The timing of the child's statement;

6. Whether more than one person heard the statement;

7. Whether the child was suffering pain or distress when making the statement;

8. Whether the child's age makes it unlikely that the child fabricated astatement that represents a graphic, detailed account beyond the child'sknowledge and experience;

9. Whether the statement has internal consistency or coherence, and usesterminology appropriate to the child's age;

10. Whether the statement is spontaneous or directly responsive to questions;

11. Whether the statement is responsive to suggestive or leading questions;and

12. Whether extrinsic evidence exists to show the defendant's opportunity tocommit the act complained of in the child's statement.

E. The court shall support with findings on the record, or with writtenfindings in a court not of record, any rulings pertaining to the child'sunavailability and the trustworthiness and reliability of the out-of-courtstatement.

(1988, c. 892, § 63.1-248.13:2; 2002, c. 747.)