Indiana justices reverse ruling permitting deposition of child sex abuse victims

The Indiana Supreme Court has swiped at a Court of Appeals of Indiana ruling that allowed a defendant accused of child sex crimes to take the deposition of his accuser, concluding that a disputed state statute preventing such depositions does not conflict with the Indiana Trial Rules.

In December, Indiana Supreme Court justices heard oral arguments in the case involving Steven Church, who was charged with two counts of Level 1 felony attempted child molesting and five counts of Level 4 felony child molesting.

Church filed a petition to depose his accuser. But less than two weeks after Church was charged, Indiana Code § 35-40-5-11.5 took effect, limiting his ability to take the deposition of his child accuser unless the prosecutor agreed or “extraordinary circumstances” existed.

The Marion Superior Court denied Church’s petition pursuant to the statute. But the Court of Appeals of Indiana reversed and remanded, holding that the statute impermissibly conflicted with the Indiana Trial Rules.

But the majority justices held fast to the trial court’s ruling on Thursday, granting transfer and affirming the trial court in Steven Church v. State of Indiana, 22S-CR-201.

“Even though the statute has procedural elements, we conclude it is substantive, as it predominantly furthers public policy objectives of the General Assembly, as opposed to judicial administration objectives characteristic of a procedural statute,” Justice Mark Massa wrote for the majority. “Because we also reject (Church’s) other arguments, we affirm the trial court.”

Chief Justice Loretta Rush and Justices Steven David and Geoffrey Slaughter joined Massa, while Justice Christopher Goff concurred with the high court’s conclusion that the trial court properly denied Church’s petition to depose the child victim. However, Goff parted ways with his colleagues on the grounds for sustaining that conclusion.

“In my view, Indiana Code section 35-40-5-11.5 (the Act) is a procedural law in conflict with our trial rules governing pre-trial discovery,” Goff opined in a separate opinion. “But because the Act corresponds with this Court’s long-held concern for child welfare, and because it retains the trial court’s discretion, I would consider the Act, as our precedent permits, an exception to the relevant trial rules.”

In explaining its reversal, the majority began by answering a question of first impression: What event is determinative for the prospective application of a statute?

“Because we ultimately conclude the operative event of a statute — here, seeking a deposition — is determinative, the statute is being applied prospectively to Church,” Massa wrote. “… If Church had sought to depose the child victim in the eight days between being charged and the statute going into effect, there would be a retroactive application.”

The high court also concluded that the statute is substantive because it predominantly furthers legitimate public policy objectives within the Indiana General Assembly’s exclusive purview. Additionally, the statute does not violate the separation of powers, the justices concluded.

“This Court long ago concluded that ‘the power to make rules of procedure in Indiana is neither exclusively legislative nor judicial,’” Massa wrote. “… Because the statute here is substantive and not procedural, we need not explore the constitutional consequences that might arise if the General Assembly enacted a purely procedural statute in conflict with one of our rules.”

Finally, the justices concluded the statute does not violate any of Church’s constitutional rights under the Indiana or United States constitutions.

“The General Assembly — through its exclusive power to enact laws protecting the health and safety of an extremely vulnerable class of citizens — passed this statute to protect alleged child sex-crime victims from unnecessary re-traumatization,” the majority concluded. “This statute is not being retroactively applied to Church. It is not a procedural statute that could conflict with our Trial Rules, nor does it violate the separation of powers enshrined in our Constitution.

“Finally, it does not violate any of Church’s rights under the state and federal constitutions. Having rejected Church’s arguments, we affirm the trial court.”

Justice Goff disagreed that I.C. 35-40-5-11.5 is substantive, opining instead that the plain language of the statute “articulates no express policy of child-victim rights.”

Laying them side-by-side, Goff continued by stating the statute “clearly conflicts” with the trial rules.

“In my view, the Act, which otherwise conflicts with our court rules governing pre-trial discovery, warrants an exception because it harmonizes with our concern for child welfare and because it ultimately retains the trial court’s discretion,” he wrote. “Had the measure advanced a policy not conducive to our own, I likely would have come to a contrary conclusion.”