Allison v. State

• Decision Date: 22 May 1986
• Docket Number: No. 72125,72125
• Citation: 179 Ga.App. 303,346 S.E.2d 380
• Parties: ALLISON v. The STATE.
• Court: Georgia Court of Appeals

Page 380

346 S.E.2d 380

179 Ga.App. 303

ALLISON v. The STATE.

No. 72125.

Court of Appeals of Georgia.

Decided May 22, 1986.

Rehearing Denied June 6, 1986.

Certiorari Granted July 16, 1986.

William T. Hankins III, Decatur, for appellant.

Robert E. Wilson, Dist. Atty., J. Tom Morgan, Susan Brooks, Asst. Dist. Attys., for appellee.

POPE, Judge.

Richard Hugo Allison appeals from a jury verdict and judgment of conviction on one count of child molestation. Held:

The trial evidence showed that appellant and his ex-wife had been divorced for three years. There were two daughters, ages seven and fourteen, as issue of that marriage. Their mother was awarded custody and appellant regularly exercised overnight visitation privileges on alternate weekends. The visits took place at his parents' home, where he also resided. The seven-year-old is the alleged victim.

The victim testified that on an unknown number of occasions (the number varied considerably with various recitations of the events) appellant would take her from the bedroom in which she slept with her sister into his bedroom where they would watch television and play "bad games." Using anatomically correct male and female dolls, the victim demonstrated that appellant was nude when these events occurred, that he would take her hand and place it on his penis, and that he would thereafter ejaculate. She was told by her father never to tell anyone, "otherwise, he'll rearrange my mother's face."

Appellant's ex-wife told the victim's pediatrician that appellant slept with the child while nude during his visitation weekends. The doctor became suspicious of possible sexual child abuse and referred the matter to the Cobb County Department of Family and Children Services (DFACS). In a tape-recorded interview with a DFACS social worker, the victim described her father's conduct, at first claiming that the contact of her hand on his penis was accidental, but later stating that he took her hand and caused her to touch him. Following that interview, the matter was referred by DFACS to the police and the instant indictment was subsequently returned.

A friend of the girls testified that she spent the night at appellant's home along with his two daughters on at least twelve occasions. She stated that she awoke one night, went to appellant's bedroom door and saw the victim sit up in bed calling her sister's name. She also observed appellant and was able to tell that he was not wearing any clothes.

Appellant testified that the divorce from his former wife was initially amicable, but that their relationship deteriorated just prior to her remarriage two years ago. He denied ever forcing the victim to sleep in his bed with him and claimed never to have been nude in the child's presence. Appellant denied the allegations of child abuse. He testified that he believed the victim was "very mistaken" and attributed the child's claims to his poor relationship with her mother. His defense at both trials was that the act of child molestation had not occurred and that the victim was "coached" into creating her story. When asked whom he thought was coaching the child, appellant responded, "My ex-wife."

At the conclusion of the defense case, the State sought to call a series of rebuttal expert witnesses consisting of Dr. Braga, a college professor in the field of behavioral sciences, Ms. Aldridge, a child therapist, and Dr. Stark, a clinical psychologist. The purpose of their testimony was to explain the characteristics of "child sexual abuse accommodation syndrome," which the State sought to prove as an identifiable pattern of behavioral characteristics typically exhibited by sexually abused children.

Over objection, the testimony was ruled admissible. The first witness, whose expertise was unchallenged, explained that the syndrome is a pattern of behavior that is exhibited by children who have been the victims of sexual abuse. Five typical behavioral characteristics were identified: (1) secrecy (children are usually not forthcoming with disclosure); (2) helplessness (the child feels he or she can do nothing to prevent the abuse); (3) accommodation (the child attempts to rationalize or accommodate the abuse, e.g., by pretending to be asleep); (4) delayed, conflicting and unconvincing disclosure (the child may at first give information that makes no sense or may be unconvincing); (5) recantation (if disclosure causes disruption in the child's life, he or she may recant an earlier story).

Dr. Braga testified that further indicia of the syndrome are nightmares, regressive behavior, body drawings containing exaggerated or incomplete appendages and pseudomature behavior. He was then asked to assume hypothetically that a child showed the following characteristics: (1) bright student with low school performance; (2) failure to reveal the abuse for a long period of time; (3) aggressive behavior; (4) some confusion in recounting the abusive conduct; (5) pseudomature behavior; (6) knowledge of sex beyond her age; (7) nightmares; and (8) bedwetting. When asked whether a child exhibiting such behavior should be diagnosed as suffering from child sexual abuse accommodation syndrome, the witness responded, "Absolutely."

The next rebuttal witness was Ms. Aldridge, a family therapist who works primarily with sexually abused children. Over objection, the witness was qualified as an expert in child therapy. The victim had been referred to the therapist by the district attorney's office, and she has since had 16 therapy sessions with the child. She described the child's behavior as aggressive, pseudomature; a bright underachiever who has more information about sexual behavior than the average seven-year-old. Her drawings reflect helplessness anger and are remarkable in that the body limbs are omitted.

The third witness was qualified as an expert in clinical psychology. He met with the victim on two occasions at the request of her counselor. A battery of psychological tests was administered and based upon those results as well as upon his observations of the child and discussions with the child's counselor, the witness stated that in his professional opinion the "girl does definitely appear to fall into that syndrome.... In my professional opinion, she has been sexually abused." Thereafter, the jury returned a verdict of guilty.

1. Appellant enumerates as error the admission into evidence of expert testimony as to child sexual abuse accommodation syndrome. We acknowledge that this issue is one of first impression in our appellate courts and we commend both parties for their thorough research and briefing. Through the testimony of Dr. Braga, the State explained that child sexual abuse accommodation syndrome has been identified as a pattern of behavior that is typically exhibited by children who are victims of sexual abuse. Children who have been sexually abused demonstrate significantly distinct characteristics from normal children or children who suffer from different emotional disorders. Dr. Braga cited to several authorities who had published treatises in this area, and also to studies published by the U.S. Department of Health and Human Services and the Institute of Human Development. He gave extensive testimony as to the identifiable characteristics of the abuse syndrome.

In Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981), our Supreme Court decided whether expert testimony concerning the "battered woman syndrome" should have been admitted at trial. The court determined that "[e]xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]" Smith, supra 247 Ga. at 619, 277 S.E.2d 678. Thus, a woman who killed her boyfriend and claimed self-defense, may, as evidence of whether she acted in fear of her life, have an expert describe the "battered woman syndrome," apply that to the facts and conclude that the woman falls within the profile. In Smith the court also observed that it is permissible for the State to offer expert opinion testimony that a child is a victim of "battered child syndrome" and that its injuries were not accidental. Id. at 617, 277 S.E.2d 678.

In Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (1983), the court considered whether expert testimony was permissible with regard to the "battering parent syndrome." The court held that "unless a defendant has placed her character in issue or has raised some defense which the battering parent syndrome is relevant to rebut, the [S]tate may not introduce evidence of the syndrome, nor may the [S]tate introduce character evidence showing a defendant's personality traits and personal history as its foundation for demonstrating the defendant has the characteristics of a typical battering parent." Sanders, supra 251 Ga. at 76, 303 S.E.2d 13.

More recently, a child psychologist testified at a hearing on a petition to terminate parental rights that child abuse experts recognize and classify certain persons as "lethal parents" in order to predict child-abusive behavior. After identifying the recognized characteristics and applying those to the parent, the witness testified that it was probable the child would be a target for the parent's abuse. In the Interest of D.S., 176 Ga.App. 482, 484, 336 S.E.2d 358 (1985). This court was not required to reach the acceptability of the "lethal parent" analysis as it concluded that there was sufficient additional evidence to terminate parental rights exclusive of that testimony.

The above cases involve analogous issues decided by our appellate courts. Since the question now before us is one of first impression, we also look to the authority of other jurisdictions which have considered the admissibility of evidence of child sexual abuse accommodation syndrome.

In State v....