Mitchell v. Com., s. 87-SC-753-TR

• Decision Date: 19 October 1989
• Docket Number: 87-SC-754-TRG,Nos. 87-SC-753-TR,s. 87-SC-753-TR
• Citation: 777 S.W.2d 930
• Parties: John Russell MITCHELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 930

777 S.W.2d 930

John Russell MITCHELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 87-SC-753-TRG, 87-SC-754-TRG.

Supreme Court of Kentucky.

Oct. 19, 1989.

J. Andrew White, Louisville, for appellant.

Frederick J. Cowan, Atty. Gen., Elizabeth A. Myerscough, Asst. Atty. Gen., Frankfort, for appellee.

OPINION OF THE COURT

The captioned cases above are consolidated by order of this court and will be disposed of in this opinion. The appellant contends that his convictions for sodomy and incest, allegedly perpetrated against his infant children, must be reversed because of the prejudicial effect of the erroneous admission of testimony by a social worker concerning what was denominated as a child sexual abuse accommodation syndrome.

In three recent cases we have reversed child abuse convictions where evidence was allowed before the jury concerning the child sexual abuse accommodation syndrome.

In Bussey v. Commonwealth, Ky., 697 S.W.2d 139 (1985), we reversed a conviction for attempted sodomy allegedly perpetrated by a father against his infant daughter principally because of the erroneous admission of testimony concerning this syndrome. We said:

"Appellant's first assertion of error, and the primary issue on appeal, concerned the propriety of the trial court's action in admitting psychiatric evidence of the 'child sexual abuse accommodation syndrome.' Dr. Hans Kaak, a psychiatrist, took the stand for the prosecution at trial and testified that in his expert opinion, Karen Bussey exhibited symptoms of what he termed the 'relatively new' concept of child sexual abuse accommodation syndrome. This term, as explained by Dr. Kaak at trial, is what is used to describe a number of symptoms which can be recognized in children who have been sexually abused by someone to whom they are closely related, and includes, among other things, a tendency to be secretive, frightened, and to experience a great deal of guilt. Dr. Kaak was unable to make any direct link between the alleged abuse of Karen by appellant and the symptoms which she exhibited, and acknowledged that the symptoms could not be distinguished from any symptoms that might have resulted from sexual abuse inflicted upon Karen by someone other than her father. There was testimony that Karen had been sexually abused by her uncles.

"Appellant objected to the testimony concerning the sexual abuse syndrome on the grounds that, inter alia, the prosecution did not establish that the syndrome is a generally accepted medical concept, and that the evidence is immaterial since the syndrome as described could have been caused by the prior sexual abuse of Karen by her uncles. We agree. The fact that Dr. Kaak admitted that the syndrome's existence may have resulted from sexual abuse inflicted upon Karen from persons other than the appellant makes it immaterial as to the establishment of the appellant's guilt. As a result, the trial court erred in allowing this testimony into evidence, and appellant's conviction must be reversed. We note also that the record does not reveal any attempt made by the prosecution to establish the credibility of the child sexual abuse accommodation syndrome as a concept generally accepted in the medical community."

Id. at 140-141.

In Lantrip v. Commonwealth, Ky., 713 S.W.2d 816 (1986), we again reversed a conviction because of the erroneous admission into evidence of testimony concerning child sexual abuse accommodation syndrome. We said:

"Appellant also contends the trial court erroneously permitted Richard Welch, who holds a Masters Degree in Clinical Social Work, to testify concerning statements made to him by Amanda and also erred in admitting his testimony concerning what he denominated as 'sexual abuse accommodation syndrome.' Amanda was referred to Richard Welch by the Commonwealth Attorney for an evaluation. He testified that she told him her father engaged in repeated acts of intercourse with her and that she did not report this fact immediately because she was afraid. As indicated, Amanda had previously testified in a similar vein. We find nothing in the record to establish or indicate that the history given to Richard Welch by Amanda was for the purposes of treatment. Instead, it appears she was referred for evaluation. Welch's testimony goes to establish the truth of the matters stated to him because he testified:

'Her behavior subsequent to the incident fulfills the guidelines of the Sexual Abuse Accommodation Syndrome. Few children have been found to exaggerate or invent crimes of sexual molestation.'

"Welch listed five distinct elements of the sexual abuse accommodation syndrome. They were, (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delay in disclosure, and (5) retraction. He said that Amanda fit all of the categories except that she had not retracted her story."

"There was no evidence that the so-called 'sexual abuse accommodation syndrome' has attained a scientific acceptance or credibility among clinical psychologist or psychiatrists. Even should it become accepted by the scientific community that a child who has been sexually abused is likely to develop certain symptoms or personality traits, there would remain the question of whether other children who had not been similarly abused might also develop the same symptoms or traits. If so, the development of these symptoms or traits characteristic of the alleged 'syndrome' would not suffice, per se, to prove the fact of sexual abuse. Under the circumstances of this case it was error to permit the testimony of Richard Welch concerning the statements made to him by Amanda of the testimony that she fulfilled the criteria of the 'sexual abuse accommodation syndrome.' "

Id. at 817.

In Hester v. Commonwealth, Ky., 734 S.W.2d 457 (1987) we again restated our disapproval of testimony relating to a child sexual abuse accommodation syndrome.

In this case, a witness with a degree in social work but who was not a psychiatrist, psychologist, or medical doctor, was permitted over objection to testify in a rambling discourse through 30 pages of the recorded transcript of evidence about the psychological reactions of children who have been subjected to sexual abuse. At no time did she relate her testimony to the appellant or to any of the victims of the alleged abuse. As a matter of fact, this witness had not consulted with any of the children and expressed no opinion whatever as to whether any of them suffered from a child sexual abuse accommodation syndrome.

She testified that this sexual abuse accommodation syndrome was generally accepted by "clinicians" without specifying what clinicians she referred to, but there was no medical testimony of any nature whatever that this syndrome has become a generally accepted medical concept.

In essence, the witness testified that the syndrome consisted of five elements or symptoms, namely, secrecy, helplessness, accommodation, delay in reporting, and retraction. She testified that child sexual abuse begins in secrecy, that the child is usually helpless against an authoritative figure, that this causes the child to accommodate the abuse, that some children do not immediately report the abuse, and after it is eventually discovered or reported will retract the accusation.

There was no testimony that all children who are sexually abused exhibit these symptoms, nor was there testimony that children who have not been sexually abused do not sometimes exhibit some of the elements of the syndrome. There was no testimony that sexual abuse by other persons than the accused could not have produced the same symptoms in the victims.

The child sexual abuse accommodation syndrome is not like a fingerprint in that it can clearly identify the perpetrator of a crime. Even if all of the children of the appellant exhibited some or all of the symptoms of the syndrome, it would not follow that the appellant was conclusively, or even probably, guilty of child abuse. The testimony about the child abuse syndrome, even had it been offered by a psychiatrist or psychologist, and even if it were shown to be a medically accepted concept, was for the most part irrelevant to the issue of the guilt or innocence of the appellant.

In addition, the witness was permitted to testify that before children attain the age of eighteen years, one out of every three girls has been sexually molested, 60% by a family member and 30% of them by a trusted adult. Assuming the truth of this testimony, it is difficult to see the relevance to the issue of appellant's guilt or innocence. It might lead a jury to believe that the odds are fairly high that appellant was guilty since he was a family member and a trusted adult, and 90% of sexual molestations are perpetrated by family members and trusted adults.

This witness also testified in a general way that child molesters often are not perverts but many times are slightly more educated, will have slightly more money, will be a law abiding person, and may be slightly more religious than the average person. Again, assuming the truth of that testimony, it is not relevant to the issue of whether this particular appellant was guilty or innocent of the charge.

We hold that the testimony concerning the so-called child sexual abuse accommodation syndrome was erroneously admitted into evidence because: (1) there was no medical testimony that the syndrome is a generally accepted medical concept, and (2) the testimony had no substantial relevance to the issue of the appellant's guilt or innocence.

Appellant's contention regarding newly discovered evidence is rendered moot by reason of our decision expressed above, and his contention concerning the indefinitness of the dates of the commission of the crimes alleged in the indictment is without merit.

The judgment is reversed for further proceedings consistent with this opinion.

STEPHENS, C.J., and COMBS, LAMBERT, LEIBSON and VANCE, JJ., concur.

WINTERSHEIME...