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Published: Friday, 10/12/2007

High court allows 5-year-old s statements in Hancock County rape case

BLADE COLUMBUS BUREAU

COLUMBUS Statements alleging sexual abuse made by a child under the age of 10 during the course of medical treatment and diagnosis may be admitted at trial regardless of whether the child was deemed competent at the time, the Ohio Supreme Court ruled yesterday.

The court unanimously reinstated a Hancock County rape conviction of Dennis Muttart, 31, that had been overturned by the Lima-based 3rd District Court of Appeals.

The Supreme Court ruled that the statements of the 5-year-old girl in this case as repeated by medical professionals in court were an exception to the general rule preventing someone from repeating hearsay evidence that came from a third person. The court found that such testimony did not violate Muttart s Sixth Amendment right to confront his accuser.

Justice Maureen O Connor noted that the court was aware that a parent or child could provide false information to medical professionals.

Although physicians and psychotherapists are not infallible when diagnosing abuse, we believe that their education, training, experience, and expertise make them at least as well equipped as judges to detect and consider those possibilities, she wrote.

Muttart is serving three consecutive life sentences at the Toledo Correctional Institution for varying counts of raping a child under the age of 13. Hancock County Court of Common Pleas had allowed the medical professionals to testify about what the girl told them during his 2003 trial.

But the Lima appeals court determined that the statements could be admitted as evidence only after a judicial determination that the child was competent at the time she made them. Ohio law presumes that a child under the age of 10 is not competent to testify.

Despite this decision, the appeals court overturned just one of the three rape convictions, determining that the count dealing with vaginal rape was the only one in which the child s testimony was crucial.

The Supreme Court agreed to hear the appeal to settle disputes from multiple appeals courts on the issue.



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