Opinion
No. 81SA533
Decided January 10, 1983.
Appeal from the District Court of Chaffee County, Honorable O. Edward Schlatter, Judge.
Dennis E. Faulk, District Attorney, Steven B. Rich, Deputy District Attorney, for plaintiff-appellant.
Opland Musat, P.C., L. Richard Musat, for defendant-appellee.
En Banc.
The People appeal the dismissal of charges of sexual assault on a child.
Section 18-3-405, C.R.S. 1973 (1978 Repl. Vol. 8).
The Chaffee County District Court concluded at the close of the preliminary hearing that insufficient competent evidence had been adduced to support a finding of probable cause after it had stricken testimony of the defendant's wife under the husband-wife privilege statute. See section 13-90-107, C.R.S. 1973. We do not agree that her testimony should have been stricken, and we therefore reverse.
The defendant was charged with sexually assaulting his wife's eleven-year-old sister. At the preliminary hearing, the investigating police officer testified that he had interviewed the victim twice within a few hours after the assault. She told him that the defendant and his wife had been out with her parents and she was spending the night at the home of her sister and the defendant. About two o'clock in the morning, the defendant came home and told the victim to come to his bedroom. Although the girl was frightened, she acquiesced. The defendant forced her to take her clothes off, and he then attempted to have intercourse with her. The victim told the police officer that this had happened on two previous occasions.
The defendant's wife testified that when she got home the victim was crying, shaking, and hysterical and told her that the defendant had forced her to go to his bedroom. Mrs. Corbett then went to the bedroom and found the defendant in bed naked and found the victim's panties on the floor beside the bed. She then took her sister to the hospital.
After the wife's testimony on direct examination, the defendant moved to have her testimony stricken on the basis of the marital privilege. The court reserved its ruling until the conclusion of cross-examination and redirect examination. It then granted the motion and ordered the case dismissed, holding that although with the wife's testimony there was sufficient evidence to establish probable cause, there was not sufficient evidence once her testimony was stricken. The only other evidence presented at the preliminary hearing was the uncorroborated hearsay testimony of the police officer.
The trial court's conclusion that the wife's testimony must be stricken was based upon section 13-90-107(1)(a), C.R.S. 1973, which states:
"A husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other nor to a criminal action or proceeding for a crime committed by one against the other." (emphasis added).
The point argued in the court below was whether the defendant's actions in sexually assaulting his wife's sister constituted a crime against the wife. The trial court reviewed a number of our cases that had held spousal testimony to be admissible on the ground that the crime committed by one spouse was a crime against the other, but found none precisely in point. See, e.g., Jordan v. People, 161 Colo. 54, 419 P.2d 656 (1966), cert. denied, 386 U.S. 992 (1967) (indecent liberties with stepdaughter); Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965) (murder of stepson); O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543 (1932) (murder of stepdaughter); Wilkinson v. People, 86 Colo. 406, 282 P. 257 (1929) (rape of stepdaughter); Schell v. People, 65 Colo. 116, 173 P. 1141 (1918) (bigamy); Dill v. People, 19 Colo. 469, 36 P. 229 (1894) (perjury in an affidavit in a divorce action).
We do not believe it necessary to engage in a detailed analysis of the prior case law concerning what constitutes "a crime committed by one against the other," because the legislature has enacted a statute dealing with the precise issue before us. The Child Protection Act of 1975 deals with the reporting of child abuse and the provision of protective services to the child. Section 19-10-101 et seq., C.R.S. 1973 (1978 Repl. Vol. 8 and 1982 Supp.). Section 19-10-112 provides as follows:
"The privileged communication between patient and physician and between husband and wife shall not be a ground for excluding evidence in any judicial proceeding resulting from a report pursuant to this article."
The legislature has thus clearly indicated that the marital privilege cannot be invoked to exclude a spouse's testimony in a case involving child abuse. That the conduct involved here is child abuse is beyond peradventure. Section 19-10-103(1)(a)(II), C.R.S. 1973 (1982 Supp.), defines child abuse as, inter alia, "[a]ny case in which a child is subjected to sexual assault or molestation, sexual exploitation, or prostitution."
As a result, we believe the trial judge erred in striking the testimony of the wife. Because he held that with the testimony of the wife there was probable cause, we remand to the district court for trial on the merits.
JUSTICE QUINN specially concurs and JUSTICE ERICKSON and JUSTICE DUBOFSKY join in the special concurrence.