Notes on Recent Appellate Cases
9/15/93
PARENTAL RIGHTS TERMINATION -- VISITATION. It was all right for the
trial court to restrict a natural mother's visitation to writing
letters screened by the guardian ad litem, because that was in the
child's best interest, the Court of Appeals held. In this case the 12-
year-old boy, the appellate court said, had been abused by his mother
and sexually abused by his mother's second husband, and had
persistently asserted that he did not want to visit with his mother.
Smith v. McPeak, ___ Va. App. ___, ___ S.E.2d ___, 8 VLW 144 (1993).
CHILD ABUSE -- SODOMY, ETC. It was all right for the court to more or
less throw the book at a 37-year-old woman for having oral sex with a
13-year-old boy. It constitutes unlawful carnal knowledge, which is
still a crime in Virginia. (But think of the talk shows!) Shull v.
Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 8 VLW 99 (1993).
NOTES ON RECENT APPELLATE CASES
April 1993
CUSTODY -- PARENTAL ABDUCTION AS FEDERAL "KIDNAPPING" CRIME. The
federal criminal kidnapping statute, 18 USC 1201, has always had an
express exception for the acts of parents, but the federal government
in U.S. v. Sheek (Morgan), 7 VLW 1172 (CA 4, 3/30/93), argued that a
mother whose parental rights had been terminated was no longer a
parent coming within the exception. The Fourth Circuit rejected this
view, adhering to some remaining vestige of the common law principle
that criminal statutes should be strictly construed. Over the dissent
of Judge Hall, it dismissed the indictment of the "terminated" natural
mother.
Notes on Recent Appellate Cases
April 1993
CRIME -- EVIDENCE -- SIXTH AMENDMENT'S CONFRONTATION CLAUSE --
VICTIM'S HEARSAY -- SELF-CORROBORATION. The abhorred crime of child
sexual abuse is so heinous that it produces some extremely interesting
exceptions to the Confrontation Clause of the Bill of Rights. An
absent five-year-old's hearsay accusation that the defendant raped her
was admissible, the Court of Appeals says, because it corroborates
itself. Though the victim did not testify, her grandmother was allowed
to testify in detail as to the little girl's statements describing the
defendant committing this crime. The self-corroboration exception
apparently works thusly (now listen carefully). A rape victim's
complaint corroborates more than her testimony, the Court says; it
also corroborates the occurrence of the rape itself. No reason, the
Court explains, exists to justify limiting "the rule" regarding
admission of a victim's hearsay testimony to corroboration of a
victim's testimony. Hearsay comes in because it corroborates the other
independent evidence of the offense, though complaint alone is not
sufficient evidence of the offense. McManus v. Commonwealth, ___ Va.
App. ___, ___ S.E.2d ___ (4/27/93).
Notes on Recent Appellate Cases
April 1993
CUSTODY -- THIRD PARTY -- NATURAL PARENT PRESUMPTION. A trial court
completely disregarded the presumption in favor of a fit natural
father when it awarded custody of a child to the woman with whom the
child and her mother had lived for some years, and who had continued
to care for the child after the mother moved out, the Court of Appeals
held in Elder v. Evans, ___ Va. App. ___, ___ S.E.2d ___, 7 VLW 1069
(3/9/93). The father did not abandon the child, since he had kept up
moderate contact with her, and contributed financially to her care
until the mother married. That marriage made contact with the child
difficult for the illegitimate father, who had been arguing over
custody of the child with the mother since the child was two years
old.
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