Clark v. Com.

• Decision Date: 30 November 1999
• Docket Number: Record No. 1425-97-4.
• Citation: 31 Va. App. 96,521 S.E.2d 313
• Parties: Jack Enic CLARK v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

521 S.E.2d 313

31 Va. App. 96

Jack Enic CLARK v. COMMONWEALTH of Virginia.

Record No. 1425-97-4.

Court of Appeals of Virginia, Richmond.

November 30, 1999.

Peter D. Greenspun (Peter D. Greenspun & Associates, P.C., on briefs), Fairfax, for appellant.

John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON and WILLIS, JJ., and COLE, Senior Judge.

COLE, Senior Judge.

Jack Enic Clark was convicted by jury trial of one count of sodomy and one count of statutory rape. On November 8, 1996, two months before trial, appellant moved for, inter alias, disclosure of the complaining witness' prior medical records and an independent medical examination ("IME") of the complaining witness. At a November 15, 1996 pretrial hearing, appellant argued that he had a due process right to present evidence in his favor. Specifically, appellant contended that the IME was necessary to defend the statutory rape charge and "extremely important" to adequately address and explain the physical findings of the sexual assault nurse examiner ("SANE"). Appellant informed the trial court that the complaining witness has "made prior complaints," and the prosecutor pointed out that the complaining witness had a pelvic examination "in the early part of 1995." Following argument, the trial court ruled that it did not have authority to require the complaining witness to submit to such tests and that to do so would place a tremendous chill on reporting and prosecution of such criminal activity. Appellant contends the court erred in denying his motion to require the complaining witness of a sexual assault to submit to an IME.

The following month, during a December 13, 1996 pretrial hearing pursuant to Code § 18.2437.7, often referred to as the "rape shield law," the prosecutor acknowledged that the complaining witness made a complaint that her "adoptive step-father" sexually abused her, resulting in a 1995 pelvic examination.¹ Whether a trial court has the authority to require an alleged victim of a sexual assault to submit to an IME is an issue of first impression in Virginia; therefore, we look to other jurisdictions for guidance.

FEDERAL CASES

Although the federal courts have yet to address whether a trial court may require a complaining witness to submit to a physical examination, the United States Supreme Court addressed whether the government could require a criminal defendant to submit to a surgical procedure to remove a bullet that was alleged to be evidence of the crime. See Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). Applying the balancing test put forth in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court ruled the surgical procedure unreasonable under the Fourth Amendment. See Winston, 470 U.S. at 763-66, 105 S.Ct. 1611.

In Gilpin v. McCormick, 921 F.2d 928 (9th Cir.1990), the United States Court of Appeals for the Ninth Circuit addressed Gilpin's unsuccessful request for a psychiatric examination of an eleven-year-old female and a twelve-year-old female he was convicted of sexually assaulting. Gilpin argued that the examinations were "necessary to indicate the presence or absence of Rape/Trauma Syndrome (RTS)." Id. at 930. Gilpin argued that because "Montana has permitted the state to have an expert examine a complainant and offer her opinion at trial," it was "a denial of due process to refuse" his request for "the reciprocal opportunity." Id. at 930-31. The Ninth Circuit found no reciprocal authority or denial of due process, noting that the Montana cases upon which Gilpin relied involved situations where the complainant "volunteered to be examined by a psychiatrist" and that, under Montana law, an examination could not be compelled unless "a party's mental or physical state is in conrequire

troversy." Id. at 931. According to the

court, "[e]ven were Gilpin not to base his petition on lack of reciprocity, this circuit has never held that the defense may compel witnesses to be examined." Id.

The court concluded its analysis as follows:

We are fully aware of widespread public concern over child sexual assault and abuse cases and the passions they arouse. Appellant invokes the specter of pliant children being hectored by psychiatrists and social workers into traducing scores of innocent adults with the stain of child abuse. But new constitutional rights cannot be found for every new passion that may drive criminal prosecutions. It is clear that Montana's refusal to compel child sexual assault victims to undergo psychiatric examination does not violate constitutional due process.

Id. at 931-32.

The United States Court of Appeals for the Fifth Circuit has held that a federal trial "court has broad discretion in determining whether to compel a witness to undergo a psychtricio examination." United States v. Raineri, 670 F.2d 702, 709 (7th Cir.1982). "In exercising this discretion the court must consider the infringement on a witness' privacy, the opportunity for harassment, and the possibility that an examination will hamper law enforcement by deterring witnesses from coming forward." Id.

STATE CASES

Numerous states have addressed the issue of whether a trial court can order a complaining witness to submit to a physical examination. Most states addressing the issue have found to varying degrees that a trial court has discretion to order such an examination. One of the earliest opinions on the issue originated from the Alabama Court of Criminal Appeals. See Lanton v. State, 456 So.2d 873 (Ala.Ct.App.1984). In that case, "the child had been examined by a physician not a gynecologist." Id. at 874. The trial judge denied the defendant's motion for a physical examination of the thirteen-year-old alleged rape victim by a competent gynecologist.

[The] physician testified as a defense witness that she could not determine whether or not the prosecutrix had engaged in sexual intercourse because the victim was too tense. The defendant alleged in his motion that he "has reason to believe an examination by a competent gynecologist would reveal that said ... [prosecutrix] has not engaged in sex."

Id.

Noting the absence of law on the issue, the court held that such a determination is "`a matter of judicial discretion with the trial court, to be exercised only in cases of extreme necessity.'" Id. at 873-74. The court held that the "`granting or refusal of an order for a physical examination of the prosecutrix... will not be reversed except for a manifest abuse of such discretion.'" Id. at 874 (quoting C.J.S. Criminal Law § 80 (1952)).

In People v. Nokes, 183 Cal.App.3d 468, 228 Cal.Rptr. 119, 123-27 (1986), a magistrate refused to order a physical examination of the defendant's son in a sexual abuse case. The son had not been examined by a physician. A trial judge later reversed the magistrate and dismissed the information. In reversing the trial court and upholding the magistrate's decision, the California Court of Appeals held that whether to order the examination "was within the discretion of the magistrate." Id. at 125. The court approved the manner in which the magistrate balanced the magnitude of the intrusion upon the complaining witness with the possibility of gaining exculpatory evidence. See id. at 122, 125. Although the Court of Appeals held that "the method of examination may have been reliable in the abstract," it further noted that "the reliability of the examination with respect to defendants' right to present an affirmative defense was virtually nonexistent." Id. at 126.

In Turner v. Commonwealth, 767 S.W.2d 557 (Ky.1988), the Kentucky Supreme Court held that the defendant, "as a matter of due process and fairness, was entitled at least to have the alleged victim examined by an independent gynecologist in preparation for trial." Id. at 559. The defendant, Turner, was convicted of raping his four-year-old daughter. A gynecologist examined the complaining witness in response to a request by the Department of Social Services. The gynecologist testified that the complainant had healed injuries to her hymenal ring at five locations or positions. See id. at 558. Because of the healing, the gynecologist could express no opinion about the age of the injuries. Although the gynecologist acknowledged that small girls sometimes do things that can rupture the hymenal ring, "she expressed the opinion that some of the injuries to the alleged victim were caused by penile penetration." Id. at 559. The Kentucky Supreme Court explained:

Perhaps in the case of sexually active females a vaginal examination, remote in time from an allegation of sexual abuse, would reveal little of probative value as to whether sexual assault had occurred, but in the case of a four-year-old child, evidence of tears in the hymenal ring was a significant circumstance, and testimony that penile penetration caused the injury was a significant incriminating factor.

In this case, the alleged victim was only four years old. The physical examination of the child by an independent expert might have permitted the appellant to offer evidence to contradict that offered by the Commonwealth as to whether there were, in fact, any injuries to the hymenal ring. If such an injury was found, the examination by an independent expert may have enabled appellant to contradict testimony for the Commonwealth that the location of the injuries indicated the probability of penile penetration. In any event, the examination of the alleged victim by an independent expert and consultation with that expert as to the results of the examination would have been of material assistance to the appellant in his cross-examination.

Id. at 559.

Noting the need to balance the accused's rights with those of the complaining witness, the court explained: `

In a case such as this, the critical question is whether the evidence sought by the appellant is of such importance

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