No. 81-232 

IN THE SUPREBE COURT OF THE STATE OF IIONTANA 

1981 

IN THE MATTER OF J.H., 

a youth. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert M. Kampfer argued, Great Falls, Montana 

For Respondent: 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Barbara Bell argued, Deputy County Attorney, Great Falls, 

Montana 

Cameron Ferguson, Great Falls, Montana 

Bonnie Sutherland, Great Falls, Montana 

Submitted: December 2, 1951 

Decided: M# 4 
. Justice John Conway darrison delivered the Opinion of 

the Court. 

H.H., the father of J.H., appeals a decision of the 

highth Judicial District, in and for the County of Cascade, 

finding that J.H. is a youtn in need of care as an abused or 

neglected child. 

n October 22, 1980, the Department of Social and 

Kel~abilitation Services filed a petition in the District 

Court alleging that J.H. was a youtn in need of care. 

Hearings were held November 18 and December 4, 1980. 

'l'estimony of the child indicated that he had been sexually 

abused by his father a couple of times a month since the age 

of five or six. The boy's mother and a social worker also 

testified about sexual abuse of the son that the father had 

discussed with them. 

The father testified he £el t his sexual contact witn 

his son was beneficial, as exposing him to homosexuality at 

a young aye would make it distasteful for him and prevent 

him from becoming homosexual. He noted that he had "helped" 

many young men in the community with this problem. 

During the December 4, 1980, hearing, the father 

moved to dismiss because he had been declared incompetent to 

proceed in a collateral criminal (deviant sexual conduct) 

action, presumably was not competent to proceed in this 

action, and, therefore, could not adequately protect his 

interests. His motion was denied. 

Prior to the instant case, the boy plead true to 

attempted arson. A dispositional hearing was held, and J.H. 

was placed at Yellowstone Boys Ranch until the age of 

eighteen. Thus, the court determined there was no need for 

a dispositional hearing in this case, and on January 19, 
1981, the court ruled that J.H. was a youtn in need of care 

as an abused or neglected child. The father appeals. 

Five issues are raised on appeal: 

1. May a wife testify about her husband's sexual 

abuse of their son? 

2. Is section 41-3-404(3), MCA, unconstitutionally 

void for vagueness? 

3. Is there sufficient evidence to support the trial 

court's finding that J.H. is a youtn in need of care as an 

aDused or neglected child? 

4. Is it proper to hold a youth in need of care 

proceeding even though the father was unfit to proceed in a 

collateral criminal case? 

5. Should a dispositional hearing have been held? 

SPOUSAL PRIVILEGE 

May a wife testify about her husband's sexual abuse 

of their son? We hold that the wife may testify. 

Section 26-1-802, MCA, provides: 

"Spousal privileqe. A husband cannot be 

examingd-for or aqainst - his wife without her 

consent or a wife for or against her husband 

without his consent; nor can either, during 

the marriage or afterward, be, without the 

consent of the other, examined as to any 

communication 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 or to a criminal action or 

proceeding for a crime committed by one 

against the other." 

The purpose of the spousal privilege is to protect 

the sanctity of the marriage and home. State v. Taylor 

(1973), 163 Mont. 106, 515 P.2d 695. However, once a family 

member has been sexually abused, the sanctity of the home 

and the reason for the rule have been destroyed. 
Sexual abuse of the son by the father is also a 

"special wrong to the wife and has 'particularly and 

directly' affected her in a manner other than that suffered 

by the public in general." Chamberlain v. State (Wyo. 

1960), 348 P.2d 280, 284. Thus, the "wrong" against the 

child is "nothing more nor less than a 'wrong' against the 

other [spouse]." Chamberlain, 348 P.2d at 284. As such, it 

falls into one of the exceptions to the spousal privilege. 

Section 26-1-802, MCA. 

In Chamberlain v. State, supra, the court noted: 

"Each of the states, territories and possessions of our country, as well as the Phillipine Islands, now has statutes relating to 

competency of a spouse to testify against the 

other in criminal cases, but they are not 

uniform. In attempting some general classification of these laws, we find statutes of 

several jurisdictions making the spouse competent, but not compellable, to testify; a 

few states where they may be compelled to 

testify; and a large majority where such 

testimony is permissible when the accused is 

charged with violence or crime against the 

other spouse. Witnin the last group are some 

states which allow the testimony when the 

crime, violence or injury is committed 

against a minor child of the witness. It 

also appears that about one-fourth of the 

jurisdictions have statutes which read substantially the same as our own statute. See 

2 Wigmore on Evidence, 3d ed., S488 and 1957 

Supp. 

"In 97 C.J.S. Witnesses S101, p. 504, it is 

said: 

"'Under statutory exceptions permitting 

husband or wife to testify against the other 

in a prosecution for a crime committed by one 

against the other, the right of one spouse to 

testify against the other exists in cases of 

violence against the person, and has by some 

authorities been limited to such offenses, 

such authorities construing statutes of this 

character as merely declaratory of the common 

law, although other authorities take the view 

that under such statutory exception a wife is 

competent to testify against her husband in a 
prosecution for any crime of his by which she 

is particularly and directly injured or 

affected, the statutue being construed as 

rendering one spouse competent against the 

other in the latter's prosecution for any 

offense against the marriage relation or 

status, although holding one spouse incompetent to testify against the other where the 

crime is clearly one not against the person 

or property of the other, or even against the 

marital status. 

"'Statutes permitting either spouse to 

testify against the other in all cases in 

which an injury has been done by either 

against the person or property of either are 

not limited to cases wherein there is a 

physical injury the the person of a spouse, 

but includes prosecutions for crimes 

especially injuring one spouse, although 

involving no physical injury.' 

"In 8 Wigmore on Evidence, 3d ed., S2239, p. 

251, commenting on the exception to the rule 

of exclusion which was recognized at common 

law, it is said: 

I1 1 * * * Just how far the concession went, in 

concrete cases, was never precisely settled. 

It was given varying definition at different 

times; it certainly extended to causes 

involving corporal violence to the wife; and 

it certainly did not extend to all wrongs 

done to the wife. In modern statutes the 

spirit of the exception has usually been 

invoked to establish the exception for both 

husband and wife in all causes involvina d a 

"crime against the other", or a "personal 

wrong".' (Emphasis supplied.)" 348 P.2d at 

282-283. 

Since 1960, the time of the Chamberlain opinion, 

there has been a continual growth in the jurisdictions 

recognizing an exception in cases such as this. See: 

People v. Gibson (1957), 152 Cal.App.2d 149, 312 P.2d 705; 

Jordan v. People (1966), 161 Colo. 54, 419 P.2d 656; 

Balltrip v. People (1965), 157 Colo. 108, 401 P.2d 259; 

State v. Whitaker (1975), 112 Ariz. 537, 544 P.2d 219; 

United States v. Allery (8th Cir. 1975), 526 F.2d 1362; 

Commonwealth v. Maroney (1964), 414 Pa. 161, 199 A.2d 424; 
Garcia v. State (Tex.Crim.App. 1978), 573 S.W.2d 12. 

In a majority of child abuse cases, a parent is the 

perpetrator. Evidentiary Problems in Criminal Child Abuse 

Prosecution, 63 Geo. L. J. 257, 258 (1974). Often, spouses 

are the only witnesses in these cases. To discourage sexual 

or other abuses of children, spouses should be allowed to 

testify against each other in child abuse proceedings. See, 

United States v. Allery (8th Cir. 1975), 526 F.2d 1362, 

1366-1367. 

In any event, part of the testimony the father finds 

objectionable concerns husband-wife communications with 

third parties present. Other "objectionable" testimony 

involves the wife's feelings, rather than actual husbandwife communications. Both are exceptions to the spousal 

privilege. Thompson v. Steinkamp (1947), 120 Mont. 475, 187 

P.2d 1018; State v. Houchin (1967), 149 Mont. 503, 428 P.2d 

971; cf ., State v. Roberts (1981), - Mont . - , 633 P.2d 

1214, 38 St.Rep. 1551. 

Thus, we hold that the wife may testify about the 

husband's sexual abuse of their son. 

11. CONSTITUTIONALITY OF SECTION 41-3-404, MCA 

Is section 41-3-404(3), MCA, unconstitutionally void 

for vagueness? 

Section 41-3-404(3), MCA, provides: 

"(3) In all civil and criminal proceedings 

relating to abuse, neglect, or dependency, 

none of the privileges related to the 

examination or treatment of the child and 

granted in Title 26, chapter 1, part 8, 

except the attorney-client privilege granted 

by 26-1-803, apply." 

The father claims that it is unclear whether section 
41-3-404(3), MCA, allows parents to testify in youth in need 

of care proceedings, and it is therefore unconstitutionally 

void for vagueness. We find no vagueness in the above 

statute. It provides that, with the exception of the 

attorney-client privilege granted under section 26-1-803, 

MCA, no exceptions are granted in civil and criminal 

proceedings related to abuse, negligence or dependency 

actions. 

Having found previously that under section 26-1-802, 

MCA, that a wife may testify against her husband in a sexual 

abuse hearing, we have, therefore, determined that the above 

statute is not unconstitutionally void due to vagueness. 

111. SUFFICIENCY OF THE EVIDENCE 

Is there sufficient evidence to support the trial 

court's findings that J.H. is a youth in need of care as an 

abused or neglected child? We find sufficient evidence. 

Findings of fact of the trial court shall not be set 

aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. 

Testimony here indicates that there had been a pattern of 

abuse by the father in the home. Further, the father 

believes his actions are beneficial, and he consequently has 

no incentive to change. We therefore conclude that the 

findings of the trial court were not clearly erroneous and 

that J.H. is a youth in need of care as an abused or 

neglected child. 

IV. FATHER'S COMPETENCE 

Due to the unusual nature of this case, it is 
necessary to point out that the testimony given by the 

father in this matter was at a hearing to determine whether 

his son was abused and neglected. The father was present 

with counsel, and at the end of the proceedings requested 

through counsel that he be allowed to make a presentation to 

the court. The father was sworn and testified, giving some 

sixty-three pages of testimony concerning the family 

situation. No objections were made to this testimony. 

The trial judge had an opportunity to observe the 

father and weigh his testimony as it concerned the hearing 

with regard to the son. While the father claims that since 

he had been declared unfit to proceed in a collateral 

criminal action, he is also unfit to proceed in this civil 

action, the record in no way indicates that he has been 

declared an incompetent. In fact, the record does not 

reveal any loss of status which would prevent him from 

proceeding in this matter. In addition, section 53-21- 

141(1), PICA, provides that, "[ulnless specifically stated in 

an order by the court, a person involuntarily committed to a 

facility for a period of evaluation or treatment does not 

forfeit any legal right or suffer any legal. disability. . ." 

There is nothing in the record to indicate that the father 

was declared unfit to proceed in anything except the 

criminal proceeding. Therefore, he retains his right to 

proceed in a civil action. 

Further , the party asserting incompetence has the 

burden of proving it, Hodges v. Hodges (1967), 150 Mont. 

413, 435 P.2d 784, and a person is presumed competent to 

testify unless the court finds otherwise. See, Rule 601, 

Mont.R.Evid. Thus, with no affirmative showing of 
incompetence to proceed in this civil action, we presume the 

father was competent. 

Finally, the father could have requested a guardian 

ad litem to be appointed if he felt his attorney was not 

properly representing him. See, Rule 17(c), M.R.Civ.P. 

Therefore, we hold that it was proper in this case to 

proceed with the youth in need of care proceeding despite 

the fact that the father was declared unfit to proceed in a 

collateral criminal action. 

V. DISPOSITIONAL HEARING 

Should a dispositional hearing have been held? We 

hold that a hearing should have been held, but failure in 

this case to hold one was harmless error. 

Montana statute, section 41-3-404(4)(b), MCA, clearly 

mandates a dispositional hearing: 

"If the court determines that the youth is an 

abused, neglected, or dependent child, the 

court shall set a date for a dispositional 

hearing and order any necessary or required 

investigations. The dispositional hearing 

shall be scheduled as soon as practicable. 

The court may issue a temporary dispositional 

order pending the dispositional hearing. The 

temporary dispositional order may provide for 

any of the forms of relief listed in 41-3- 

403(2) ." 

In this case one dispositional hearing had already 

been held in the arson case, and J.H. was placed at 

Yellowstone Boys Ranch. Since the trial court held that 

J.H. was a youth in need of care, it is unlikely that he 

would have been removed from Yellowstone Boys Ranch even if 

a second dispositional hearing had been held. Failure to 

hold a dispositional hearing cannot be condoned by this 

Court, but in this case the error was harmless. 
A£ f irmed . 

We concur: 

A-4, &&d na 

Chief Justice