Victim in Sex Case Ruled Not Competent

By Debra Lemoine
The Advocate
November 20, 2007

AMITE — A 7-year-old named as a victim in the Hosanna Church sex abuse case is not competent to testify, state District Judge Doug Hughes ruled Monday.

Hughes issued the written ruling Monday in response to a motion by Austin "Trey" Bernard III's attorney to quash the testimony of and videotaped statements given by the girl.

Bernard, 39, of Hammond, is one of seven members of the now-defunct Hosanna Church in Ponchatoula indicted in 2005 on charges of having sex with children as part of occult rituals. His trial is set to begin Monday.

Bernard faces one count of aggravated rape, accused of having sex with the girl in 2002 when she was 2. He faces no other charges at trial, but the investigation included two other alleged victims, both boys.

The girl was 5 years old when she was interviewed by experts at the Child Advocacy Center, the ruling says.

The girl "is unable to distinguish historical fact from fantasy and is unable to appreciate the gravity and importance of a trial and the role of her testimony in it," the ruling says.

Bernard's attorney, Al Bensabat, said he thinks the ruling is correct.

"It's been our position all along," he said.

Bensabat argued in court on Nov. 7 that the child was too young in 2002 to remember accurately what may or may not have happened. Her age also makes her susceptible to suggestion by adults, he said.

The 21st Judicial District Attorney's Office plans sometime today to file a writ seeking review of the decision by the 1st Circuit Court of Appeal in Baton Rouge, Assistant District Attorney Don Wall said.

"We would like to have the option to use her testimony," Wall said. "It doesn't help our case, but it doesn't kill it either."

Wall argued in court on Nov. 7 that the girl's ability to remember accurately is a question of her credibility as a witness, not her competency to be one.

Competency is the child's ability to know truth from lies, he said. Her credibility is an issue for the jury to decide, he said.

Besides the child's testimony, Wall said he has evidence that Bernard confessed during the 2005 investigation to abusing the child.

The prosecutor said he also has statements made by witnesses to the abuse of the girl, including the two boys who were alleged to be victims during the investigation.

The prosecution intends to present evidence that Bernard also abused the boys, from 2000 to 2003, helped other members of the church have sex with these children and had sex with a dog, according to documents the prosecution filed Thursday.

Wall said state law allows the prosecution to present evidence of other crimes to prove the suspect has a lustful disposition toward children.

The defense said all the allegations are false.

"We don't believe they can prove these allegations," Bensabat said when asked about the evidence.



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