COA allows defendant to take deposition of alleged child sex abuse victim

Following a recent decision that struck down a law limiting when defendants can take the deposition of an alleged child sex abuse victim, the Indiana Court of Appeals has once again allowed a defendant accused of child sex crimes to take the deposition of his accuser.

The case of Steven Church v. State of Indiana, 21A-CR-68, began in March 2020, when Steven Church was charged with two counts of Level 1 felony attempted child molesting and four counts of Level 4 felony child molesting. Less than two weeks later, Indiana Code § 35-40-5-11.5 took effect, limiting Church’s ability to take the deposition of his child accuser unless the prosecutor agreed or “extraordinary circumstances” existed.

Thus, when Church in July 2020 petitioned to depose the alleged child victim, the Marion Superior Court denied his petition, citing the newly-enacted statute. He then filed the instant interlocutory appeal, and the Court of Appeals reversed in his favor.

“Church argues, inter alia, that the trial court abused its discretion in denying his Petition to depose the child victim because the Act impermissibly conflicts with Indiana Trial Rule 26 and Indiana Trial Rule 30, governing discovery and depositions,” Judge Elizabeth Tavitas wrote for a unanimous appellate panel that agreed with Church’s argument. She cited to the recent decision in Sawyer v. State, No. 20A-CR-1446 (Ind. Ct. App. May 19, 2021), which struck down the statute as a procedural law in conflict with the trial rules.

“Here, as in Sawyer, the process prescribed in the Act for a defendant’s deposition is incompatible with that enumerated in the Trial Rules 26 and 30 such that the Act and the Trial Rules cannot both apply to Church. In such a scenario, we are compelled to find that the Trial Rules govern …,” Tavitas wrote, citing Bowyer v. Ind. Dep’t of Nat. Res., 798 N.E.2d 912, 917 (Ind. 2003).

She continued, “because the trial court erroneously resolved the conflict in favor of the Act, we conclude that the trial court abused its discretion in denying the Petition. Accordingly, we reverse and remand.”

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