Com. v. Dunkle

• Citation: 602 A.2d 830,529 Pa. 168
• Parties: , 60 USLW 2517 COMMONWEALTH of Pennsylvania, Appellant, v. Neil F. DUNKLE, Appellee.
• Decision Date: 22 January 1992
• Court: United States State Supreme Court of Pennsylvania

Page 830

602 A.2d 830

529 Pa. 168, 60 USLW 2517

COMMONWEALTH of Pennsylvania, Appellant, v. Neil F. DUNKLE, Appellee.

Supreme Court of Pennsylvania.

Submitted May 6, 1991.

Decided Jan. 22, 1992.

[529 Pa. 170] Kenneth A. Osokow, Dist. Atty., for appellant.

Ronald C. Travis, Williamsport, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

We are called upon to decide whether the trial court erred in permitting expert testimony about the behaviors exhibited by children who have been sexually abused was error in a case in which the appellee was charged with sexual abuse of a minor. Additionally, we must decide whether the expert testimony was properly admitted to explain why sexually abused children may not recall certain details of the assault, to explain why they may not give complete details, and to explain why they may delay reporting the incident. Finally, we address the issue raised by the appellee in his cross-appeal concerning the propriety of admitting prior incidents of a sexual nature that occurred between the appellee and the victim.

We hold that expert testimony concerning typical behavior patterns exhibited by sexually abused children should not have been admissible in the case before us. We also hold that it was error to permit an expert to explain why sexually abused children may not recall certain details of the assault, why they may not give complete details, and why they may delay reporting the incident. Lastly, we hold that the trial court did not err in permitting testimony about prior sexual incidents between the appellee and the victim.

FACTUAL AND PROCEDURAL HISTORY

The appellee, Neil Dunkle, was charged with rape, indecent assault, corruption of minors, simple assault and criminal attempt to commit involuntary deviate sexual intercourse. Following a jury trial, he was found guilty of all charges except rape and was sentenced to not less than two years, nor more than four years on one count and a concurrent sentence not less than 18 months nor more than three years on another count. The acts for which he was convicted concerned a sexual assault upon his teenage stepdaughter.

These charges arose out of a complaint made by the appellee's stepdaughter that in April of 1983, the appellee entered her bathroom while she was showering and, after forcing her to the floor, sexually assaulted her, forced her to engage in oral intercourse, and raped her.

During the trial, the Commonwealth called Susan Slade to testify as an expert witness. In reliance on Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985), appeal denied, and over the objection of the defense, the trial court permitted her to testify. Ms. Slade (who is not a psychiatrist or a psychologist) testified about behavior patterns that occurred in children who had been sexually abused. Additionally, she testified about why a victim would delay reporting an offense, why a victim might be unable to recall exact dates and times of an alleged offense, and why victims of sexual abuse omitted details of the incident when they first told their story. At no time during her testimony did the expert witness relate any of her testimony to the child in question.

According to the complaining witness, the appellee had assaulted her in April, 1983. The victim did not report the offenses to anyone in authority until April 1986. Additionally, there was testimony that the victim omitted details of the assault when she first reported the incident and was unable to recall specific dates and times.

In addition to the expert testimony, there was testimony by those who knew the victim concerning changes in her behavior after the alleged assault occurred. There was also testimony that the appellee had often watched the victim while she was showering by peering through a moveable panel inside his closet. The victim also testified that the appellee had fondled her breasts while she pretended to be asleep.

Following the conviction, the appellee appealed and the Superior Court reversed, holding that the expert's testimony was used to buttress the credibility of the victim in violation of Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). We granted the Commonwealth's petition for allowance of appeal to address the issue of whether the expert witness should have

been permitted to testify. We also granted appellee's cross-petition to address the issue of whether appellee's prior sexual misconduct toward the victim, which consisted of spying on her and fondling her breasts, should have been admissible.

DISCUSSION

In order for us to adequately explain our reasoning, we divide this opinion into three sections; the first dealing with the testimony concerning the behavior patterns of sexually abused children--the so-called "Child Sexual Abuse Syndrome." The second section of the opinion addresses the testimony about why children delay reporting incidents of child abuse. The third section discusses prior sexual incidents between the appellee and the victim.

TESTIMONY ABOUT THE "CHILD SEXUAL ABUSE SYNDROME"

Testimony concerning typical behavior patterns exhibited by sexually abused children is also referred to as the "Sexually Abused Child Syndrome," "the Child Abuse Syndrome," and the "Child Sexual Abuse Accommodation Syndrome") ¹.

This Court has long recognized that in order for an expert to testify about a matter, the subject about which the expert will testify must have been "sufficiently established to have gained general acceptance in the particular field in which it belongs." Commonwealth v. Nazarovitch, 496 Pa. 97, 101, 436 A.2d 170, 172 (1981), quoting Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (D.C.1923) (the so-called "Frye standard"). In its brief, the Commonwealth refers to the "Child Abuse Syndrome." This syndrome is an attempt to construct a diagnostic or behavioral profile about sexually abused children. The existence of such a syndrome as either a generally accepted diagnostic tool or as relevant evidence is not supportable. Several commentators note that the so-called "sexual abuse syndrome" is not specific enough to sexually abused children to be accurate.

The principal flaw with the notion of a specific syndrome is that no evidence indicates that it can discriminate between sexually abused children and those who have experienced other trauma. Because the task of a court is to make such discriminations, this flaw is fatal. In order for a syndrome to have discriminant ability, not only must it appear regularly in a group of children with a certain experience, but it also must not appear in other groups of children who have not had that experience. ²

According to the literature on the subject, there is no one classical or typical personality profile for abused children. ³ The difficulty with identifying a set of behaviors exhibited by abused children is that abused children react in a myriad of ways that may not only be dissimilar from other sexually abused children, but may be the very same behaviors as children exhibit who are not abused. "Researchers have been unsuccessful in their attempts to find common reactions that children have to sexual abuse. In fact, research has indicated that children react in incredibly diverse ways to sexual abuse." ⁴ As another commentator aptly notes:

[O]ne cannot reliably say that a child exhibiting a certain combination of behaviors has been sexually abused rather than, for instance, physically abused, neglected, or brought up by psychotic or antisocial parents. Although future research may support identification of victims by their behaviors, such identification is currently not possible. ⁵

In the case sub judice, the expert testified that the "victim usually experiences initially a lot of fear of the offender, a lot of anger towards the alleged offender." The "victim is usually very confused," "the children initially feel very very guilty." The expert also testified that the "child is usually very confused over the relationship." The child "frequently expresses many of the positive things that weren't in the relationship." "Child victims of sexual abuse usually have a very low self esteem." Additionally, "children frequently withdraw after the disclosure of sexual abuse, they will isolate themselves [and] not want contact with other people." "[T]hey are not performing as well as they did at school, they are disassociating themselves with common practices or common friends at the school, they're [sic] grades frequently will fall, they have [an] inability to concentrate on their school work."

While all of these behavior patterns may well be typical of sexually abused children, even a layperson would recognize that these behavior patterns are not necessarily unique to sexually abused children. They are common to children whose parents divorce ⁶ and to psychologically abused children. ⁷

In one study about children whose parents divorce, the author described many behaviors exhibited by children of divorced parents. ⁸ "Some clung to the remaining parent, whimpering or crying when the parent left...." ⁹ "Regression was a common response among the youngest children." ¹⁰ "Lapses in toilet training and increased masturbatory activity were noted." ¹¹ The author also noted a marked rise in aggression, guilt, bewilderment and macabre fantasy. ¹²

In another study of sexually abused children, the authors remark that all maltreated children may react similarly--whether the victims of sexual abuse or another type.

The degree to which sexually abused children differ from other maltreated children or children from chaotic and violent households may be small (Erickson & Egeland, 1987; Wolfe & Mosk, 1983; Wolfe, Wolfe, & LaRose, 1986). In the best study to date (Erickson & Egeland, 1987; Erickson, Egeland, & Pianta, 1989), 267 children were followed prospectively and 60 to 86 were identified as...