What is the role of an outcry witness in proving the continuous sexual abuse of a young child?

Abstract

The Houston Court of Appeals (First District) recently heard Fernandez v. State. Its ruling provides clear definitions of what role an outcry witness can play in proving allegations of continuous sexual abuse of a young child. Tex. Code Crim. Pro art. 38.072, Section 2 has come to be known as the “outcry statute.” It creates an exception to the hearsay rule in cases involving allegations of sexual assault of a child who is younger than 14 years of age. Pursuant to that statute, a trial court may admit a child/complainant/victim’s out-of-court statements that describe the alleged offense suffered by the child, provided that such statements were made to the first adult person to whom the child made a statement regarding the offensive conduct. There may be more than one outcry witness, provided that said witnesses testify about different events. In order to qualify for the outcry witness hearsay exception, a party offering an outcry statement must provide written notice to the opposing party in which the party who intends to offer such evidence identifies the name of the outcry witness(es), including a summary of the witness(es)’ testimony. Tex. Code Crim. Pro art. 38.072, Section 2 (b)(1).