Alleged victim of child molesting won’t testify in abuser’s presence

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An 8-year-old girl who is alleged to be the victim of sexual abuse will not have to testify in the presence of her alleged abuser after the Indiana Court of Appeals determined the trial court erred in denying motions to allow the victim to testify via closed circuit television.

After Delbert McKinney was charged on various felony child molesting allegations, the state moved to exclude his presence during the deposition of his alleged victim, K.N., and to have K.N. testify via closed circuit television. Dr. Shannon Jones, a psychologist who treated K.N., said she had diagnosed the child with post-traumatic stress disorder due to abuse, which included sexual abuse. Jones also said the 8-year-old had the emotional maturity of a toddler or preschooler.

Jones then testified that having K.N. testify in front of McKinney would cause emotional harm and that the child would be “overwhelmed by anxiety” if she had to testify in front of many people. Kayce Clevenger, a psychiatric social worker who also worked with K.N., gave similar testimony, indicating that K.N. could even become physically aggressive in stressful situations.

The Posey Circuit Court, however, denied the state’s motions to exclude McKinney and allow K.N. to testify via closed circuit T.V., finding that based on Jones and Clevenger’s testimonies, there would be little difference in K.N.’s stress level regardless of where she offered her testimony. The court did hold that McKinney would be required to stay 10 feet away from K.N., that an officer of the court would be there to supervise and that McKinney would be removed if he tried to intimidate his alleged victim.

In a Wednesday opinion on interlocutory appeal, the Indiana Court of Appeals reversed the denial of both motions, with Judge Patricia Riley writing for the unanimous panel that “the procedural safeguards of having McKinney sit…ten feet apart from K.N. requires a level of rationalization about fears that is unrealistic for any eight-year-old child… .”

“Directing K.N. to be in the same room with her alleged molester, McKinney, at the pre-trial stage, despite the unequivocal expert evidence that K.N. could potentially experience emotional harm if she testified in the presence of McKinney, was undeniably harmful to K.N. – an eight-year-old, who is diagnosed with PTSD and has a deferred development.”

Further, the appellate court found the state satisfied the requirements of the Protected Person Statute, as it presented evidence that K.N. would be emotionally harmed if she testified in McKinney’s presence.

Thus, the trial court abused its discretion both in allowing McKinney to be in the room and in requiring to K.N. to testify in his presence, rather than via closed circuit television. The case, State of Indiana v. Delbert McKinney, 65A05-1611-CR-2624, was remanded for further proceedings.

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