State v. Drab, 88-2565
| Decision Date | 28 June 1989 |
| Docket Number | No. 88-2565,88-2565 |
| Citation | 546 So.2d 54,14 Fla. L. Weekly 1545 |
| Parties | 14 Fla. L. Weekly 1545 STATE of Florida, Petitioner, v. Dennis DRAB, Respondent. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for petitioner.
Mitchell J. Beers of Beers & Herman, P.A., Palm Beach Gardens, for respondent.
Jean Hottenstein, Guardian Ad Litem, West Palm Beach, for A.L.D., a child.
The state seeks to prohibit a second, compelled gynecological examination of an eight-year-old child, who, it is alleged, was the victim of a sexual battery perpetrated by respondent, Dennis Drab, her adoptive father.
We take it as a given, supported as it is by common sense as well as by the record, and reinforced by the Response filed by the Guardian Ad Litem, that a further, intimate, physical examination is not in the best interests of this child. We are also persuaded that the results of such an examination at this late date would be of little probative value. Further, respondent, Drab, takes issue not with the qualifications of the original examiner nor with the specifics of his physical observations, but rather with the conclusions drawn therefrom. Nevertheless, we are required to determine whether an accused has a right to require the victim of his alleged sexual battery to undergo a physical examination.
In State v. Smith, 260 So.2d 489, 491 (Fla.1972), the supreme court, in an opinion quashing an order requiring that witnesses submit to an eye examination, pointed out that neither the common law nor the rules of criminal procedure authorize a court "to grant a motion compelling witnesses to submit to a physical examination of any sort." By way of dicta, however, the opinion adds: "Even assuming, that in some rare instance, justice may require some type of physical examination of a witness, more must be shown than in the case sub judice." Id.
The issue considered in Dinkins v. State, 244 So.2d 148 (Fla. 4th DCA 1971), was whether the court had the power to require the prosecutrix in a rape prosecution to submit to a psychiatric examination for the purpose of furnishing a possible basis of impeachment.
There we said:
Our attention has not been directed to any authority in this jurisdiction, whether statute, rule or precedent, giving the court power to require the prosecutrix in a rape prosecution to submit to a psychiatric examination for the purpose of furnishing a possible basis of impeachment. A number of eminent writers have advocated the desirability of the court possessing and mandatorily exercising such power. These writers and their respective works are discussed at length in the opinion by the Supreme Court of California in the case of Ballard v. People, 1966, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, and in an annotation entitled "Requiring Complaining Witness in Prosecution for Sex Crime to Submit to Psychiatric Examination" in 18 A.L.R.3d 1433. See also State v. Clasey, 1968, 252 Or. 22, 446 P.2d 116. By statute, F.S.1969, section 801.161, F.S.A., courts of this jurisdiction have discretionary power, upon motion of a defendant charged under the Child Molester Act, to order a psychiatric examination of the complaining witness before trial. Cf. Wilk v. State, Fla.App.1969, 217 So.2d 610. But the statute is not reasonably susceptible of being construed as a statutory grant of power to the court to require the prosecutrix in a rape case to submit to psychiatric examination before trial upon request of the defendant.
The qualifications of the text writers whose works on this subject are listed in the above citations are such that w...
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...clearly outweighs the possible harmful consequences to the alleged victim. [Id. at 260-61, 604 A.2d 89.] D.R.H. quoted State v. Drab, 546 So.2d 54, 56 (Fla.Dist.Ct.App.), review denied, 553 So.2d 1164 (Fla.1989) for the holding that a compelled examination is not justified merely because of......
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