                                 CODE OF VIRGINIA

ADMISSION OF EVIDENCE OF SEXUAL ACTS WITH CHILDREN (§ 63.2-1522)

A. In any civil proceeding involving alleged abuse or neglect of a child
pursuant to this chapter or pursuant to &#xA7; 16.1-241, 16.1-251, 16.1-252,
16.1-253, 16.1-283, or 20-107.2, an out-of-court statement made by a child 14
years of age or younger at the time the statement is offered into evidence,
describing any act of a sexual nature performed with or on the child by another,
not otherwise admissible by statute or rule, may be admissible in evidence if
the requirements of subsection B are met.

B. An out-of-court statement may be admitted into evidence as provided in
subsection A if:

   1. The child testifies at the proceeding, or testifies by means of a
   videotaped deposition or closed-circuit television, and at the time of such
   testimony is subject to cross-examination concerning the out-of-court
   statement or the child is found by the court to be unavailable to testify on
   any of these grounds:
   				a. The child&#8217;s death;
   				b. The child&#8217;s absence from the jurisdiction, provided such absence
   is not for the purpose of preventing the availability of the child to testify;
   				c. The child&#8217;s total failure of memory;
   				d. The child&#8217;s physical or mental disability;
   				e. The existence of a privilege involving the child;
   				f. The child&#8217;s incompetency, including the child&#8217;s inability
   to communicate about the offense because of fear or a similar reason; and
   				g. The substantial likelihood, based upon expert opinion testimony, that
   the child would suffer severe emotional trauma from testifying at the
   proceeding or by means of a videotaped deposition or closed-circuit
   television.

   2. The child&#8217;s out-of-court statement is shown to possess particularized
   guarantees of trustworthiness and reliability.

C. A statement may not be admitted under this section unless the proponent of
the statement notifies the adverse party of his intention to offer the statement
and the substance of the statement sufficiently in advance of the proceedings to
provide the adverse party with a reasonable opportunity to prepare to meet the
statement, including the opportunity to subpoena witnesses.

D. In determining whether a statement possesses particularized guarantees of
trustworthiness and reliability under subdivision B 2, the court shall consider,
but is not limited to, the following factors:

   1. The child&#8217;s personal knowledge of the event;

   2. The age and maturity of the child;

   3. Certainty that the statement was made, including the credibility of the
   person testifying about the statement and any apparent motive such person may
   have to falsify or distort the event including bias, corruption, or coercion;

   4. Any apparent motive the child may have to falsify or distort the event,
   including bias, corruption, or coercion;

   5. The timing of the child&#8217;s statement;

   6. Whether more than one person heard the statement;

   7. Whether the child was suffering pain or distress when making the statement;

   8. Whether the child&#8217;s age makes it unlikely that the child fabricated a
   statement that represents a graphic, detailed account beyond the child&#8217;s
   knowledge and experience;

   9. Whether the statement has internal consistency or coherence, and uses
   terminology appropriate to the child&#8217;s age;

   10. Whether the statement is spontaneous or directly responsive to questions;

   11. Whether the statement is responsive to suggestive or leading questions;
   and

   12. Whether extrinsic evidence exists to show the defendant&#8217;s
   opportunity to commit the act complained of in the child&#8217;s statement.

E. The court shall support with findings on the record, or with written findings
in a court not of record, any rulings pertaining to the child&#8217;s
unavailability and the trustworthiness and reliability of the out-of-court
statement.

HISTORY: 1988, c. 892, § 63.1-248.13:2; 2002, c. 747; 2019, c. 413.