AMITE -- A judge says prosecutors may use statements by two boys that they were sexually abused by the minister and other members of a little church in Ponchatoula, even though those witnesses now say that wasn't true.

WWL-TV

Judge Doug Hughes rejected attorney Al Bensabat's request to throw out the earlier statements as evidence when Austin "Trey" Bernard III goes to trial Nov. 26 on charges of aggravated rape of a juvenile less than 12 years old.

Two of the three alleged victims, now 21 and 17 years old, say they were never abused and would swear to that, Bensabat told Hughes on Tuesday.

Their earlier statements were part of the reasons Bernard and others were arrested in May 2005. Defense attorneys for three of the other defendants have made similar statements.

Bensabat said he will ask the state 1st Circuit Court of Appeal in Baton Rouge to overrule Hughes.

A hearing Nov. 7 will be about the third witness, a girl who is now 8 years old. Bensabat told the judge he believes the child is not competent to testify because she was at most 3 years old at the time of the alleged abuse. Her age makes her susceptible to suggestions from adults, and because of her age and the amount of time that has passed, she probably does not remember what happened, he said.

Assistant District Attorney Don Wall told the judge that investigators have not interviewed the 21-year-old but have talked to the 17-year-old, who may testify that he was never abused.

But, earlier, they made a half-dozen statements saying they had been abused, he told the judge.

In an interview after the hearing, he said the boys' statements were made to state and local social workers, and their psychiatrist and doctors at Children's Hospital in New Orleans.

Before a 2004 change the Legislature made to the state code of evidence, earlier statements contradicting court testimony could be used only to impeach a witness -- not as evidence against a defendant.

Bensabat says that because the alleged abuse took place from 2000 to 2002, the earlier statements cannot be used.

Wall argued that the change does not affect illegal actions, only how cases are prosecuted, so the statements may be used.

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Information from: The Advocate, http://www.2theadvocate.com

(Copyright 2007 by The Associated Press. All Rights Reserved.)