ALPENA — A mother will be allowed to testify that her young daughter told her the child had seen a man’s private parts in an upcoming Presque Isle County trial.

Typically considered hearsay, the testimony about a 5-year-old child’s out-of-court comment will be permissible because of a so-called “tender years exception” to the hearsay rule, Judge Aaron Gauther ruled in the 53rd Circuit Court in Rogers City.

Ken Kierzek, 67, is accused of inappropriately touching the child and exposing himself to her in late 2018 or early 2019. The child disclosed the alleged abuse to her mother six months later as part of a casual conversation.

The News does not identify alleged victims of sexual assault.

Comments made outside a courtroom typically can’t be admitted in court. State law makes an exception in the case of children younger than 10 if certain criteria are met.

Defense attorney Matt Wojda argued that, because the child did not report the abuse right away and was not kept from doing so by fear, her disclosure did not meet the standards for the exception.

According to statute, for a hearsay accusation of physical or sexual abuse to be allowed under the tender years exception, the abuse must have been reported immediately. A delay in a reporting can be overlooked if it was caused by fear — such as threats made against a parent if the secret is revealed — or by “equally effective circumstances.”

In this case, the child had no fear of the defendant, both parties agreed.

A doctor who examined the child after her disclosure said he thought she didn’t understand that anything wrong had happened, which the prosecution offered as a rationale for her lack of disclosure.

If ignorance were a legitimate argument, Wojda argued, the Legislature could have made a blanket ruling allowing all statements from very young children, all of whom are ignorant of an adult’s perspective of right and wrong.

A child, learning about the world from the adults around her, would not ordinarily have a sense of outrage at their actions, the judge told the courtroom as he considered the admissibility of the mother’s testimony.

“She didn’t even realize she was victimized,” Gauthier said. “So, of course, she didn’t say anything.”

Statements from the child’s mother attesting to the child’s disclosure can be admitted as evidence in court, Gauther decided. The defense will still be able to make objections to the evidence during the trial.

Earlier this month, Gauthier ruled that several concessions would be made when the child testifies — including clearing the courtroom of non-essential people and moving the defendant away from the door when she will enter — and that attorneys may use an anatomically correct doll to help her give her testimony.

Kierzek also faces three counts of first-degree criminal sexual conduct against two girls younger than 10, crimes he is accused of committing between 2004 and 2005, a capital felony which could result in life in prison.

A trial date has not yet been set. The possibility of a plea agreement has not yet been dismissed, attorneys said Monday.

Julie Riddle can be reached at 989-358-5693, jriddle@thealpenanews.com or on Twitter @jriddleX.