State v. Southard

• Decision Date: 01 October 2009
• Docket Number: CA A128253;,SC S055463).,(CC 04FE0347ST
• Parties: STATE of Oregon, Respondent on Review, v. Kermit Eugene SOUTHARD, Petitioner on Review.
• Court: Oregon Supreme Court

218 P.3d 104

347 Or. 127

STATE of Oregon, Respondent on Review, v. Kermit Eugene SOUTHARD, Petitioner on Review.

(CC 04FE0347ST

CA A128253;

SC S055463).

Supreme Court of Oregon.

Argued and Submitted September 17, 2008.

Decided October 1, 2009.

On review from the Court of Appeals.^*

Anne Fujita Munsey, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Anna M. Joyce, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

KISTLER, J.

The question in this case is whether a medical diagnosis of child sexual abuse is admissible scientific evidence. The trial court ruled that it is. After considering testimony regarding that diagnosis, as well as other evidence that defendant had abused his girlfriend's two children, a jury convicted defendant of three counts of sodomy. The Court of Appeals affirmed the trial court's judgment without opinion. State v. Southard, 214 Or.App. 292, 164 P.3d 351 (2007). We allowed defendant's petition for review and now reverse the Court of Appeals decision and the trial court's judgment.

Defendant moved in with his girlfriend, her five-year-old son, and her three-year-old daughter.¹ Afterwards, defendant's girlfriend (mother) was incarcerated for possessing controlled substances, and the state placed her children initially with their maternal grandmother and later with a foster mother. Both mother and the foster mother noticed that the then six-year-old boy began engaging in actions that concerned them. They reported

"that [the boy] had been caught on several occasions with his pants pulled down and trying to get other kids to kiss his penis. Foster Mom described multiple incidents of [his] touching other kids on their bare bottoms. Additionally, [he] would frequently expose himself to adults and children in and out of the home. Mom and Foster Mom shared that [he] frequently grabs his groin area stating that his balls are sticking. Mom and Foster Mom feel this is a habit that has developed for [him]."

While visiting his maternal grandmother, the boy disclosed that defendant made him suck defendant's penis and that defendant had made the boy's younger sister do the same thing. After hearing that information, grandmother spoke with the children's mother, who in turn called the foster mother. She recommended that mother call the Department of Human Services and the police. Those agencies referred both children to the KIDS Center, a nationally accredited medical facility in Deschutes County that examines children to determine whether they have been sexually or physically abused.

In determining whether abuse has occurred, the KIDS Center follows statewide interviewing and medical procedures as well as guidelines established by the American Professional Society on the Abuse of Children. Specifically, a team consisting of a social worker and a physician examine each child who is referred to the center. The social worker receives information from the referring agency and also takes a history from the child's parents or caregiver. After reviewing that history, the social worker conducts a videotaped interview with the child, and the physician conducts a medical examination to see if there is physical evidence of abuse.

In conducting the interview and the medical examination, the social worker and physician ask open-ended questions to avoid suggesting an answer. They also tell the child at the beginning of the interview that "it's okay to correct us, it's okay to say, `I don't know,' it's okay to say, `I don't remember.'" The center follows that protocol because, "[o]therwise, kids won't do that, and they'll acquiesce to possibly what the adult would suggest." The interview is videotaped and peer-reviewed to ensure that the interviewer is asking appropriate, nonsuggestive questions and also to ensure that the interviewer is not "using certain gestures or head motions that [suggest a particular] answer." Based on the child's history, the interview, and the medical examination, the social worker and the physician consult with each other, and the physician diagnoses whether sexual abuse has occurred. Another member of the KIDS Center then reviews their data and conclusion. In some cases, the center consults with other state and national organizations in making a diagnosis.

In this case, the doctor who examined the boy diagnosed him as having been sexually abused. The doctor who examined the girl was unable to diagnose whether she also had been sexually abused. In the course of reaching those conclusions, a social worker spoke with the boy's mother and foster mother, who reported the behaviors (noted above) that had concerned them. The social worker also interviewed the boy, who told her that defendant "made [him] suck on [defendant's] private." The boy described other details about the sexual activity and said that "it would stop when his mom came home." He "described seeing [his sister] sucking on [defendant's] private and recalled that [defendant] `peed on [his sister].'" He added that his sister "sucked on [defendant's] private `a lot more times more than I did, because he told her to.'" The interviewer spoke with the girl, who denied that any sexual contact had occurred.

A physician then conducted medical examinations of each child, which did not reveal any physical evidence of sexual abuse. Dr. Largent, the director of the KIDS Center, later testified that the absence of physical evidence was not surprising. She explained that the type of sexual contact that the boy reported "doesn't leave any physical marks most of the time, nothing that we [can] see." The social worker and physician accordingly considered the boy's statements to them, as well as the history that they had received from the boy's mother and foster mother, in determining whether sexual abuse had occurred. In deciding whether to credit the boy's reports of abuse, they considered whether the boy had used age-appropriate terms to describe the abuse, whether he had provided specific details, and whether the events that he described were consistent with other historical facts. They also considered whether the behaviors that the mother and foster mother had reported were consistent with the reported abuse. Having considered those factors, the physician diagnosed the boy as having been sexually abused.

The state charged defendant with two counts of sodomy regarding the boy and one count of sodomy regarding the girl. Before trial, the defendant filed a motion in limine to preclude the state from introducing "any diagnosis of `sex abuse' on the groun[d] that such evidence is `scientific evidence' under OEC 702 and must be subject to the foundational requirements for such evidence." The trial court held a pretrial hearing to resolve defendant's motion. In addition to the evidence set out above, the state offered evidence at the pretrial hearing that a diagnosis of sexual abuse is generally accepted within the medical community, that there are numerous published, peer-reviewed studies verifying the techniques that the KIDS Center uses to elicit and evaluate the information, and that the KIDS Center follows established guidelines in evaluating the information that it receives.

After considering that evidence, the trial court ruled that the diagnosis of sexual abuse was admissible. At trial, a physician from the KIDS Center testified that, after consulting with the social worker who had interviewed the boy and the director of the KIDS Center, she had diagnosed the boy as having been sexually abused. The state also introduced other evidence that defendant had abused the children, and the jury found him guilty of three counts of first-degree sodomy (two counts regarding the boy and one count regarding the girl). The Court of Appeals affirmed the resulting judgment without opinion. We allowed defendant's petition for review to consider whether, under the circumstances presented here, a diagnosis of sexual abuse is admissible scientific evidence.

On review, both parties agree that a doctor's diagnosis of child sexual abuse is scientific evidence. Because the diagnosis "possesses the increased potential to influence the trier of fact as [a] scientific assertio[n]," the scientific principles on which the diagnosis rests must meet a minimum level of scientific validity for the diagnosis to be admissible. State v. Marrington, 335 Or. 555, 561, 73 P.3d 911 (2003). The parties disagree, however, whether the diagnosis in this case meets that minimum level. Defendant argues that, without physical evidence of abuse, a diagnosis of child sexual abuse is too unreliable and not sufficiently verifiable to be considered scientifically valid.² The state responds that doctors frequently make diagnoses based solely on the history that a patient provides and that the scientific principles on which the diagnosis in this case rests are well established.

The parties' debate invokes familiar principles. Over the past 25 years, this court has considered, in a series of cases, when scientific evidence will be admissible in both civil and criminal proceedings. See, e.g., Marcum v. Adventist Health System/West, 345 Or. 237, 193 P.3d 1 (2008); Jennings v. Baxter Healthcare Corp., 331 Or. 285, 14 P.3d 596 (2000); State v. Brown, 297 Or. 404, 687 P.2d 751 (1984). To be admissible, scientific evidence must meet three criteria: It must be relevant, OEC 401; it must possess sufficient indicia of scientific validity and be helpful to the jury, OEC 702; and its prejudicial effect must not outweigh its probative value, OEC 403. Marcum, 345 Or. at 243, 193 P.3d 1; Jennings, 331 Or. at 301, 14 P.3d 596.

Much of the focus in our cases has been on the second step in the analysis —...