Steward v. State

• Decision Date: 23 June 1995
• Docket Number: No. 65S04-9506-CR-677,65S04-9506-CR-677
• Citation: 652 N.E.2d 490
• Parties: Bobby Joe STEWARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 490

652 N.E.2d 490

Bobby Joe STEWARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 65S04-9506-CR-677.

Supreme Court of Indiana.

June 23, 1995.

Jeffery L. Lantz, Jon Aarstad, Evansville, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., for appellee.

DICKSON, Justice.

In prosecutions for child molesting, is child sexual abuse syndrome, profile, or pattern evidence admissible to prove that child abuse occurred? To address this important question, we grant transfer.

Defendant Bobby Joe Steward was convicted of two counts of child molesting, one involving victim S.M. and the other involving victim A.M. In his appeal from the convictions, the defendant presented multiple issues. Our Court of Appeals affirmed the defendant's conviction for molesting A.M. but reversed the conviction relating to S.M. because the trial court unconstitutionally excluded evidence of allegations claimed to have been made by S.M. that she had been molested by others, proffered by the defendant to offer an alternative explanation for the State's evidence that her behavior was consistent with that of a victim of sexual abuse. Steward v. State (1994), Ind.App., 636 N.E.2d 143. As to those issues addressed by the Court of Appeals, we summarily affirm pursuant to Indiana Appellate Rule 11(B)(3).

In his briefs to this Court and the Court of Appeals, the defendant argues that expert testimony regarding the child sexual abuse syndrome is unreliable and unscientific and thus inadmissible, citing, inter alia, Indiana Evidence Rule 702; Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469; Commonwealth v. Dunkle (1992), 529 Pa. 168, 602 A.2d 830; and State v. Rimmasch (1989), Utah, 775 P.2d 388. In his transfer petition, the defendant asserts that the Court of Appeals failed to address this argument.

The Court of Appeals discussed the possible problems with the use of such syndrome evidence for the purpose of vouching for a victim's credibility, correctly noting that a witness may not testify that another is or is not telling the truth, Steward, 636 N.E.2d at 146-47; see Ind.Evidence Rule 704(b), but finding that the defendant waived this claim of error by failing to make a timely objection. Steward, 636 N.E.2d at 147. We grant transfer solely to address the defendant's further argument that, regardless of the resolution of the vouching issue, such syndrome testimony is scientifically unreliable evidence and is thus inadmissible. This is an important question likely to arise in future cases, including the retrial of this defendant. ¹

The defendant, a 52-year-old police officer and family friend of the alleged victims, was convicted of one count of child molesting, a class C felony, for performing sexual intercourse with S.M. when she was 15 years of age; ² acquitted of three other counts of child molesting as to S.M.; and convicted of child molesting, a class D felony, for touching and/or fondling S.M.'s 13-year-old sister, A.M., with the intent to arouse sexual desires. ³ As noted by the Court of Appeals, the State presented evidence at trial that S.M.'s behavior was consistent with that of other victims of child sexual abuse in order to prove that sexual contact occurred. Steward, 636 N.E.2d at 149-50. The State called Betty Watson, Ph.D., a licensed clinical psychologist with considerable professional experience who had provided treatment for S.M. After stating that common traits or behavioral symptoms are found in teenagers who have experienced sexual abuse, Record at 1276, Dr. Watson testified that S.M. exhibited such symptoms, identifying poor self-esteem, "family problems," association with an older peer group, depression, leaving home without permission, and problems with school behavior and performance. Record at 1277-83.

The State also presented testimony from Michael S. Girton, a minister and executive director of a licensed group residential treatment facility, and his wife, Katherine R. Girton, a caseworker at the facility. After establishing that Rev. Girton had taken courses in "sexual abuse work," including "being able to identify sexual abuse," the State asked him whether, based upon his personal experience, "kids who have known incidents of sexual abuse exhibit certain traits or characteristics or behavior patterns." Record at 1378. Rev. Girton answered, "Yes," and described the following types of behavior that he looks for "in the characterization of sexual abuse":

Anything for medical reasons, from bladder infections to abnormal medical problems, and more of the characteristics, the girls can be anything from promiscuous, they can be very timid, they can come in with extremely low esteem. Almost exclusively, that is going to be a major characteristic. Some of the different cues can range in areas from being really over timid to different kind of touches and approaches, where you would approach them in different directions or from different manners or methods. You might even put your hand on their shoulder and that might freak them out or something. There is a lot of different areas where just working with them it becomes really quite evident. You can see that behavior demonstrated quite plainly.

Record at 1378-79. Both Rev. and Mrs. Girton testified that there was a marked change in S.M.'s behavior immediately after S.M. disclosed to them and to Dr. Watson that she had had a sexual relationship with the defendant. Record at 1322, 1324-26, 1400-01.

The defendant argues that testimony concerning similarities between S.M.'s behaviors and those of known child abuse victims is not scientifically reliable evidence to prove S.M. was sexually abused and is therefore inadmissible.

1. The Problem

The admissibility of expert testimony regarding child sexual abuse syndrome evidence is controversial and has received substantial criticism. Recognition of the prevalence of child sexual abuse and intensive study of the problem by behavioral scientists did not begin until the mid-1970s. David McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray Into the Admissibility of Novel Psychological Evidence, 77 J.Crim.L. & Criminology 1, 2-3 (1986). The Child Sexual Abuse Accommodation Syndrome (CSAAS) was first identified by Dr. Roland Summit in a 1983 article in which he described five experiences typically occurring in sexually abused children: (1) secrecy about the sexual abuse, often ensured by threats of negative consequences of disclosure; (2) emotional helplessness to resist or complain; (3) entrapment and accommodation, where the child sees no way to escape ongoing abuse and thus learns to adapt; (4) delayed, conflicted, and unconvincing disclosure of the abuse; and (5) retraction of the child's allegations in an attempt to restore order to the family structure when the disclosure threatens to destroy it. Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177, 181-88 (1983). [hereinafter Summit, The CSAAS ]. Summit has noted that, since his original identification and description of CSAAS, which he refers to as "a clinical observation," it "has become both elevated as gospel and denounced as dangerous pseudo- science." Roland C. Summit, Abuse of the Child Sexual Abuse Accommodation Syndrome, 1 J. of Child Sexual Abuse 153, 153 (1992) [hereinafter Summit, Abuse of the CSAAS ]. The syndrome was not intended as a diagnostic device and does not detect sexual abuse. John E.B. Myers et al., ⁴ Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 67 (1989). Rather, the syndrome was designed for purposes of treating child victims and offering them more effective assistance "within the family and within the systems of child protection and criminal justice," Summit, The CSAAS, supra, at 179-80, and helps to explain reactions--such as recanting or delayed reporting--of children assumed to have experienced abuse. Myers et al., supra, at 67-68.

Because children's responses to sexual abuse vary widely, and because many of the characteristics identified by CSAAS, or by similar victim behavior groupings, may result from causes unrelated to abuse, diagnostic use of syndrome evidence in courtrooms poses serious accuracy problems. See State v. Foret (1993), La., 628 So.2d 1116, 1124-27; State v. J.Q. (1991), App.Div., 252 N.J.Super. 11, 599 A.2d 172, 181-82 [hereinafter "J.Q. I "], aff'd (1993), 130 N.J. 554, 617 A.2d 1196 [hereinafter "J.Q. II "]; Dunkle, 602 A.2d at 833-35; Rimmasch, 775 P.2d at 401-02. See also Josephine Bulkley, Legal Proceedings, Reforms, and Emerging Issues in Child Sexual Abuse Cases, 6 Behavioral Sci. & L. 153, 174-75; David Finkelhor, Early and Long-Term Effects of Child Sexual Abuse: An Update, 21 Prof.Psych.Res. & Prec. 325, 328-29 (1990); McCord, supra, at 18-24; Myers et al., supra, at 67-68. The syndrome's discoverer has noted, "Adversarial rivals seem determined to enhance it or to destroy it according to their designated role." Summit, Abuse of the CSAAS, supra, at 156. Summit explains that:

some criticism has been a legitimate defense against improper use by prosecutors and expert witnesses called by prosecution. There has been some tendency to use the CSAAS as an offer of proof that a child has been abused. A child may be said to be suffering from or displaying the CSAAS, as if it is a malady that proves the alleged abuse. Or a child's conspicuous helplessness or silence might be said to be consistent with the CSAAS, as if not complaining proves the complaint. Some have contended that a child who retracts is a more believable victim than one who has maintained a consistent complaint.

Summit, Abuse of the CSAAS, supra, at 159-60. Our discussion today encompasses not only CSAAS but also similar descriptions of "typical" behavior profiles or patterns, whether or not termed "syndromes," all of which we shall...