North Carolina’s “Caylee’s Law”

Tag Archives: child victims

North Carolina’s “Caylee’s Law”

Posted on October 3, 2013 by Jessica Smith

In 2013 North Carolina enacted “Caylee’s Law,” S.L. 2013-52, a statute similar to laws adopted in other states after the high-profile Casey Anthony trial. North Carolina’s law makes a number of changes regarding the reporting of missing, abused or deceased children. This post summarizes the changes, all of which are effective for offenses occurring on or after December 1, 2013.

New Crime: Failing to Report Missing Child By Parent/Care Giver

Elements. A person guilty of this offense:

(1) is a parent or other person providing care to or supervision of a child and

(2) knowingly or wantonly

(3) fails to report the disappearance of a child to law enforcement

G.S. 14-318.5(b).

Punishment. Class I felony. G.S. 14-318.5(b).

Notes.

“Child.” A child is a person less than 16 years old. G.S. 14-318.5(a)(1).

“Disappearance of a child.” A disappearance of a child occurs when the parent or person providing supervision does not know the child’s location and has not had contact with the child for 24 hours. G.S. 14-318.5(a)(2).

Exceptions. The offense does not apply if G.S. 110-102.1 “is applicable.” G.S. 14-318.5(d). As amended by S.L. 2013-52, G.S. 110-102.1 states that child care facility operators, staff, and specified others must immediately report a missing child to law enforcement upon learning that a child under 16 and in their care is missing.

If a child is absent from school, a teacher is not required to report the absence to law enforcement if the teacher reports the absence pursuant to G.S. Ch. 115C Art. 26. G.S. 14-318.5(e).

Multiple convictions and punishments. G.S. 14-318.5(f) provides that this offense is “an offense additional to” other criminal provisions that might apply. This provision creates some conflict with the crime’s punishment provision, stating that the proscribed punishment applies unless the conduct is covered under another provision providing greater punishment. G.S. 14-318.5(b). For a discussion of the meaning of the latter language as used in other criminal statutes, see Jessica Smith: North Carolina Crimes 116 (7^th ed. 2012).

Immunity. Anyone who in good faith reports a child’s disappearance as required is immune from any civil or criminal liability that might otherwise occur. G.S. 14-318.5(g). In any liability proceeding, good faith is presumed. Id.

New Crime: Failing to Report a Missing Child By One Who Suspects Danger

Elements. A person guilty of this offense:

(1) reasonably suspects

(a) the disappearance of a child and

(b) that the child may be in danger and

(2) fails to report those suspicions to law enforcement

(3) within a reasonable time

G.S. 14-318.5(c).

Punishment. Class 1 misdemeanor. G.S. 14-318.5(c).

Notes. The notes above entitled “Child,” “Disappearance of a child,” “Exceptions,” and “Immunity” apply here as well.

Generally. Element (1)(b) requires that the person reasonably suspect that the child “may be in danger.” The statute does not define this term. Its inclusion suggests that there must be some danger to the child other than the general danger associated with a 24-hour disappearance.

Multiple convictions and punishments. The statute provides that “[u]nless the conduct is covered under some other provision of law providing greater punishment, a violation of this subsection is punishable as a Class 1 misdemeanor.” For a discussion of the meaning of this language as used in other criminal statutes, see Jessica Smith: North Carolina Crimes 116 (7^th ed. 2012).

Failing to Report Missing Child Is A Grossly Negligent Omission

Two existing child abuse offenses apply to grossly negligent omissions. G.S. 14-318.4(a4) (Willful Act/Omission Causing Serious Bodily Injury); G.S. 14-318.4(a5) (Willful Act/Omission Causing Serious Mental or Physical Injury). S.L. 2013-52 amends the statute proscribing those offenses to state that failure to report a child as missing as required by new G.S. 14-318.5(b) constitutes a “grossly negligent omission.”

Concealing the Death of a Child Now a Class H or D Felony

G.S. 14-401.22 provides that concealing a person’s death is a Class I felony. Specifically, a defendant is guilty of that offense when with the intent to conceal the death, he or she fails to notify law enforcement of it or secretly buries or disposes of the body. S.L. 2013-52 amends that statute creating a Class H felony version of the crime that applies when the deceased is a child less than 16 years of age. G.S. 14-401.22(a1). If the person violates the statute knowing that the child did not die of natural causes, the offense is a Class D felony. G.S. 14-401.22(e).

False Reports Regarding Missing Children Now a Class H Felony

G.S. 14-225 makes it a Class 2 misdemeanor to willfully make a false, misleading, or unfounded report to a law enforcement officer or agency for the purpose of interfering with the agency’s operation or hindering or obstructing an officer in performing official duties. S.L. 2013-52 creates an enhanced Class H felony version of the offense that applies when the report pertains to a missing child. The new offense applies when a false, deliberately misleading, or unfounded report relates to a:

(1) law enforcement investigation involving the disappearance of a child or

(2) child victim of a Class A, B1, B2, or C felony offense.

G.S. 14-225(b). A child is a person under 16 years old. Id.

Failure to Report Abuse, etc. Now a Crime

G.S. 7B-301 requires any person or institution suspecting that a child is abused, neglected, or dependent or has died from maltreatment to make a report to the local social services department director. It further requires that when a director receives a report of sexual abuse of a juvenile in a child care facility, he or she must notify the SBI. However, the statute does not expressly provide for a criminal penalty for failing to make the required reports. S.L. 2013-52 changes that. Specifically, it enacts new G.S. 7B-301(b) providing that “[a]ny person or institution who knowingly or wantonly fails to report the case of a juvenile . . . or who knowingly or wantonly prevents another person from making a report . . . is guilty of a Class 1 misdemeanor.” This change is significant because it applies to all people who interact with children, including school personnel, medical personnel, family and friends. Additionally, new G.S. 7B-301(c) provides that if a social services director receives a report of sexual abuse of a juvenile in a child care facility and knowingly fails to notify the SBI, the director is guilty of a Class 1 misdemeanor.

Category: Uncategorized | Tags: casey anthony, Caylee's Law, child victims, children, death of a child

Are a Child’s Statements to a Treating Psychologist Admissible Under Hinnant?

Posted on March 20, 2013 by Jessica Smith

Suppose a child victim of sexual abuse is referred to a psychologist for counseling. In the course of treatment the child reveals details about the abuse. If the child doesn’t testify at the later sex abuse trial, are the child’s statements to the psychologist admissible under the Rule 803(4) hearsay exception for statements made for purposes of medical diagnosis and treatment?

In a paper here I addressed many of the challenging evidence issues that arise in child victim cases. And in a blog post here I addressed generally the Rule 803(4) hearsay exception. As noted in that post, under the Hinnant test two inquiries must be satisfied for evidence to be admissible under the Rule 803(4) hearsay exception: (1) that the declarant intended to make the statement in order to obtain medical diagnosis or treatment; and (2) that the declarant’s statement was reasonably pertinent to medical diagnosis or treatment. State v. Hinnant, 351 N.C. 277 (2000). When analyzing the first prong, the trial court must consider all objective circumstances; relevant factors include whether an adult explained to the child the need for treatment and the importance of truthfulness, with whom, and under what circumstances, the child was speaking, the setting of the interview, and the nature of the questions.

The law is clear that if a child makes a statement to a physician during treatment the statement may be admissible under Hinnant. But what about statements made to a psychologist or other mental health care provider in the course of mental health treatment? Hinnant itself held that a child’s statements to a psychologist were inadmissible under the Rule 803(4) exception. In that case the child made the statements to the psychologist about two weeks after an initial medical examination. Noting that no one explained the interview’s medical purpose or the importance of being truthful, that the interview occurred in a child friendly room, and that the interviewer used leading questions, the court held that the statements failed the first prong of the Hinnant test. Turning to the second prong of the test, the court noted that the “nontreating” psychologist did not meet with the child until after the child’s initial medical examination. See also State v. Waddell, 351 N.C. 413, 418 (2000) (criminal case; statements to same psychologist under nearly identical circumstances were inadmissible); State v. Bates, 140 N.C. App. 743, 746–47 (2000) (same). However, neither Hinnant nor the later cases establish a per se bar to admission of a child’s statements to a mental health care provider under the Rule 803(4) exception. Rather, in each the evidence was held inadmissible because the Hinnant test wasn’t satisfied on the facts of the case. And then we have In re Mashburn, 162 N.C. App. 386 (2004). Mashburn was an abuse and neglect case involving a male and a female child. At trial Dr. Harris, the children’s therapist, recounted statements that the children had made to him about the abuse. This evidence was admitted under the Rule 803(4) exception. On appeal, the court easily found the children’s statements admissible: “[T]he children’s statements to Dr. Harris were made for the purpose of diagnosis and treatment. In fact, Dr. Harris diagnosed the children with a myriad of mental health problems, including borderline post traumatic stress syndrome and developmental delay. As a result, he recommended a course of treatment for the juveniles.” Mashburn, 162 N.C. App. at 395. In that case, it’s clear that Harris was the children’s therapist; the decision describes him as such and notes that the female child saw Harris for eighteen therapy sessions. Another unpublished case supports the notion that a child’s statements to a treating therapist may be admissible under the Rule 803(4) exception. In re N.M.H., 183 N.C. App. 490 (2007) (unpublished) (abuse and neglect case; a child’s statements to the child’s therapist during ongoing therapy sessions were admissible; the therapist had been practicing sixteen years, her practice was confined to working with children and families, she was licensed by the state Board, and she had a Bachelor’s Degree and Master’s Degree in Psychology, and had done postgraduate study in child trauma, treatment of emotional and psychological disorders in children, and the treatment of physical abuse, sexual abuse and neglect; the child was not directed by the therapist, all of his actions and statements were spontaneous events, and his statements “went directly to [the psychologist’s] diagnosis of post-traumatic stress disorder”). In fact, at least one unpublished abuse and neglect case suggests that a child’s statements to a psychologist who is not engaged in ongoing treatment of the child may be admissible under the Rule 803(4) exception. In re I.M., 708 S.E.2d 215 (N.C. Ct. App. 2011) (unpublished) (abuse and neglect case; children’s statements to a psychologist during a psychological evaluation done nine months after removal from the home were admissible; the interview was done in a “consultation room” with no toys or play items and the psychologist explained the purpose of the interview, discussed the importance of telling the truth, and took measures to ensure that the children could distinguish between truth and falsehood; through the evaluation, the psychologist formed specific clinical diagnoses for two of the children and very specific impressions regarding the third child’s psychological wellbeing and recommended therapy for all three children). These cases indicate that if the Hinnant test is satisfied, a child’s statements to a psychologist may be admissible under Rule 803(4).

One final note: If the 803(4) exception doesn’t fly, there is always the residual exception. See, e.g., Hinnant, 351 N.C. at 291 (noting that the child’s statements may be admissible under the residual exception). That, however, is the topic for another blog post.

Category: Evidence, Uncategorized | Tags: child victims, hearsay, hinnant, psychologists

Child Victims and the Medical Diagnosis and Treatment Hearsay Exception

Posted on April 30, 2012 by Jessica Smith

Child victim cases often present an array of challenging evidence issues. In a paper here I addressed many of those issues. One common question that folks contact me about is the admissibility of a child’s hearsay statements under Evidence Rule 803(4). This rule creates a hearsay exception for statements made for purposes of medical diagnosis and treatment. An analysis known as a Hinnant test applies when this hearsay exception is at issue. See generally State v. Hinnant, 351 N.C. 277 (2000). Consider this post your Hinnant primer.

Rule 803(4) creates a hearsay exception for “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” N.C.R. Evid. 803(4). Testimony admitted under this exception “is considered inherently reliable because of the declarant’s motivation to tell the truth in order to receive proper treatment.” Hinnant, 351 N.C. at 286. In Hinnant, the North Carolina Supreme Court held that two inquiries must be satisfied for hearsay evidence to be admissible under this exception: “First, the trial court must determine that the declarant intended to make the statement at issue in order to obtain medical diagnosis or treatment. . . . Second, the trial court must determine that the declarant’s statements were reasonably pertinent to medical diagnosis or treatment.” Id. at 289.

The satisfy the first prong, the proponent of the evidence “must affirmatively establish that the declarant had the requisite intent by demonstrating that the declarant made the statements understanding that they would lead to medical diagnosis or treatment.” Id. at 287. When determining whether the requisite intent existed, the trial court considers “all objective circumstances . . . surrounding the declarant’s statements.” Id. at 288. Neither a psychological examination nor a voir dire of the child is necessary to determine whether the child had the requisite intent. State v. Carter, 153 N.C. App. 756, 760-61 (2002). Some factors the court should consider in determining whether a child had the requisite intent are:

whether an adult explained to the child the need for treatment and the importance of truthfulness;
with whom, and under what circumstances, the child was speaking;
the setting of the interview; and
the nature of the questions.

Hinnant, 315 N.C. at 287-88; see also In re Mashburn, 162 N.C. App. 386, 394 (2004); State v. Bates, 140 N.C. App. 743, 745 (2000). An examination that has a dual purpose can satisfy the first prong of the test, provided that one of the purposes is medical diagnosis and treatment. State v. Isenberg, 148 N.C. App. 29, 38 (2001). However, when the witness is interviewed solely for trial preparation, this prong of the test is not satisfied. Hinnant, 351 N.C. at 285.

As to the second prong of the test—that the statements were reasonably pertinent to medical diagnosis or treatment—cases hold that a child sexual assault victim’s identification of the perpetrator is reasonably pertinent to medical diagnosis and treatment. Isenberg, 148 N.C. App. at 38-39; State v. Lewis, 172 N.C. App. 97, 105 (2005). As the courts have explained, this identification is pertinent to continued treatment of the possible psychological and emotional problems resulting from the offense.

Statements made to an individual other than a medical doctor—such as to a family member—may qualify as statements made for the purpose of medical diagnosis or treatment if the Hinnant test is satisfied. State v. McGraw, 137 N.C. App. 726, 729 (2000); see also Commentary to N.C.R. Evid. 803 (“Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.”). However, statements to such persons do not qualify if made after the declarant already has received initial medical diagnosis and treatment. Hinnant, 351 N.C. at 289; see also State v. Watts, 141 N.C. App. 104, 107 (2000). The courts reason that in this situation, “the declarant is no longer in need of immediate medical attention” and thus “the motivation to speak truthfully is no longer present.” Hinnant, 351 N.C. at 289.

That’s the basic law. Here are some cases on point:

Statements Inadmissible:

State v. Waddell, 351 N.C. 413, 418 (2000) (statements to psychologist; interview occurred after the initial medical examination; child friendly room; leading questions; no evidence that child had a medical treatment motive or that anyone explained interview’s medical purpose or the importance of being truthful).
State v. Hinnant, 351 N.C. 277, 289–91 (2000) (statements to a psychologist about two weeks after the initial medical examination; no one explained the interview’s medical purpose or the importance of being truthful; child friendly room; leading questions).
State v. Carter, __ N.C. App. __, 718 S.E.2d 687 (2011) (statement to a social worker during “play therapy” sessions in child friendly room more than two weeks after an initial examination; no evidence child understood that sessions were for medical diagnosis or treatment; social worker did emphasize need for truth).
In re T.C.S., 148 N.C. App. 297, 303 (2002) (statements to social worker; no evidence that child had a treatment motive).
State v. Watts, 141 N.C. App. 104, 108 (2000) (statement to a hospital nurse and two doctors three months after initial medical examination; no evidence that the child had a medical treatment purpose or that importance of truthful answers was explained).
State v. Bates, 140 N.C. App. 743, 746–47 (2000) (statement to psychologist; no evidence of a treatment motive or explanation of the need for honesty; child friendly room; leading questions).
State v. McGraw, 137 N.C. App. 726, 729 (2000) (statements to child’s mother; no evidence of a treatment motive).

Statements Admissible

State v. Burgess, 181 N.C. App. 27, 34-35 (2007) (statements to pediatric nurses before doctor’s examination).
State v. Lewis, 172 N.C. App. 97, 104–05 (2005) (statements to nurses immediately before a physical examination; children understood interviews’ medical purpose; although they occurred in a child friendly room, room was in a medical center; identification of the perpetrator was pertinent to medical diagnosis and treatment).
In re Mashburn, 162 N.C. App. 386, 393-95 (2004) ((1) statements to a nurse during a medical history interview; child had treatment motive; (2) victims’ statements to a mental health professional who diagnosed them with a variety of mental health problems and recommended treatment were admissible).
State v. Thornton, 158 N.C. App. 645, 650-51 (2003) (statements to a clinical social worker in interview conducted the same day as a physical examination; social worker explained the importance of being truthful; non-leading questions).
State v. Isenberg, 148 N.C. App. 29, 36–39 (2001) ((1) statements to a pediatric nurse in a hospital; nurse was in a uniform and explained that the child would see a doctor for a physical examination and instructed her to be truthful; (2) child’s statements to a doctor were admissible; examination occurred in a medical room with medical purpose).
State v. Stancil, 146 N.C. App. 234, 242 (2001) (interviews in the hospital soon after the incident by a psychologist, a certified sexual assault nurse, and a pediatrician; child had a medical motive and returned to see the pediatrician days later due to pain).
In re Clapp, 137 N. C. App. 14, 21-22 (2000) (statements to mother and doctor could have been admitted under this exception; child told her mother of incident that occurred that day and mother took her to a hospital emergency room).

Category: Evidence, Uncategorized | Tags: child victims, hearsay, hinnant, medical

Careful Questioning in Child Sexual Abuse Cases

Posted on March 4, 2009 by Jeff Welty

Further Update: The court has reissued an opinion in this case. On the issue discussed below, it is very similar — at a minimum — to the original opinion.

Update: As of April 1, 2009, the Court of Appeals has withdrawn this opinion. I’ll post again when the new opinion comes out.

The Court of Appeals decided four published cases yesterday, and all of them are interesting. (You can read them all here.) But I want to call particular attention to State v. Streater, in which the defendant was convicted of first-degree rape and first-degree sex offense against his girlfriend’s young daughter. The state alleged that the defendant engaged in vaginal and anal intercourse with the victim while her mother was at work. The defendant denied the charges.

Apparently, the victim told her aunt what happened, the aunt took the victim to DSS to make a report, and DSS, among other things, had a pediatrician examine the girl. The doctor found several vaginal abnormalities suggestive of abuse, but found that the girl’s anal opening was normal. At trial, the prosecutor and the doctor had the following exchange:

Q: Based on the history that you received from [the victim], potentially repeated penetration of the defendant’s penis into the anal area, would you find that inconsistent with your medical findings of no trauma or would you find that consistent with it?

A: I think it was consistent with the findings. She may not, despite having been anally penetrated, she may not have had any physical findings. In many cases it is common to have a normal exam even after an allegation of physical sexual abuse in that area.

After he was convicted, the defendant appealed, arguing that the above-quoted testimony was inconsistent with the North Carolina Supreme Court’s holding in State v. Stancil, 355 N.C. 266 (2002), that “[i]n a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim’s credibility.” The Court of Appeals agreed, and reversed the defendant’s conviction for first-degree sex offense.

This strikes me as a very close case, though the court didn’t seem to think so. The doctor didn’t testify that abuse had, in fact, occurred. He just said that the girl’s allegations were “consistent” with his findings. Imagine that he had said, instead, “well, my findings are not inconsistent with abuse, although they certainly don’t prove abuse. Children heal quickly and it is not uncommon for children who have been abused to have no physical manifestations of the abuse after a week or two.” That would be unquestionably relevant and admissible — and I think that’s the essence of his testimony. As I read the case, I suspect that the Court of Appeals was at least as concerned about the question, which needlessly referred to “the history you received from the [the victim],” as it was about the answer, although the answer certainly could have been phrased more carefully, too.

The defendant’s first-degree rape conviction was affirmed, so from the state’s perspective, this may be a no-harm-no-foul reversal, but it’s certainly a cautionary tale about framing your questions carefully and about preparing your experts to testify carefully in areas where there are a lot of legal pitfalls.

To read more about evidence issues in child victim cases, take a look at SOG faculty member Jessica Smith’s excellent publication here.

Category: Evidence, Uncategorized | Tags: child victims, expert witnesses, sex offenses

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