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State Doesn't Want Alleged Elderly Sex Abuse Victim to Face Accuser

A prosecutor asked that a statement uttered immediately after the alleged sexual assault by Robert Phelan, 57, be admitted as an exception the hearsay rule. Phelan's attorney Howard Wise says the statement in question doesn't qualify.

A Cook County judge will rule next month on whether a statement reportedly made by an elderly sex abuse victim will be allowed in court or barred because it's hearsay.

Robert Phelan, 57, of Oak Lawn is accused of sexually assaulting the 93-year-old dementia patient while she was treated at an Orland Park care facility, where he was working as a nurse, according to prosecutors.

Assistant State's Attorney Mary Lou Norwell asked Judge Colleen Ann Hyland Tuesday at the Bridgeview Courthouse if a statement reportedly made by the woman to another nurse immediately after the alleged assault could be admitted .

According to Illinois law, a jury has the right to weigh statements of hearsay so long as a judge is assured in advance that the witness would be unable to show in court, and that the testimony would be reliable.

According to Norwell, a nurse at the facility observed Phelan in the woman's room on July 24, 2011. The nurse told authorities she saw Phelan touching the woman inappropriately, Norwell said.

The nurse first asked "Are you OK?" and didn't get an answer, Norwell said. The nurse then asked the victim "Did he touch you inappropriately?" according to Norwell.

The response, Norwell said, was "'Did he touch me inappropriately? Yes!" The statement qualifies as an "excited utterance," which is admissible under the hearsay rule, according to Norwell.

However Howard Wise, Phelan's attorney, said the woman's statement doesn't qualify as an exception because it was given as a response to a leading question.

"This is anything but an excited utterance," Wise said. "This is not spontaneous. It's a reflected statement."

Hyland is expected to rule on the issue on Aug. 20.

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