Invasive, Inconclusive, and Unnecessary: Precluding the Use of Court-Ordered Psychological Examinations in Child Sexual Abuse Cases

Article excerpt

I. INTRODUCTION.................... 1441

II. NOBREGA v. COMMONWEALTH AND ABBOTT v. STATE: VIEWING CHILD SEXUAL ASSAULT CASES IN DIFFERENT LIGHTS.................... 1445

A. Nobrega v. Commonwealth.................... 1445

B. Abbott v. State.................... 1446

III. BACKGROUND LEADING TO NOBREGA AND ABBOTT.................... 1448

A. Legal Background.................... 1448

B. Empirical Research on the Effectiveness of Children as Witnesses.......... 1453

C. Mental Health Professionals and the Quest for the Truth.................... 1457

IV. COMPELLED PSYCHOLOGICAL EXAMINATIONS FOR CHILD SEXUAL ABUSE VICTIMS ARE NOT THE ANSWER.................... 1459

A. Legal Considerations.................... 1459

B. Scientific Considerations.................... 1465

C. Moral Considerations.................... 1465

V. RECOMMENDATIONS .................... 1467

VI. CONCLUSION.................... 1469

I. INTRODUCTION

It is difficult, given varying estimates, to determine precisely how many children have been sexually abused in the United States. It is clear, however, that sexual abuse in this country is a massive problem by any measure.1 And its consequences are grave, both for society and for the victims. One cannot deny that sexual abuse inflicts severe psychological wounds on its victims.2 Once a family decides to move forward against the perpetrator of a sexual assault, the criminal process can be a difficult and damaging collateral experience for the child victim.3 Thus, courts should strive to prevent further harm to these brave children who turn to the criminal justice system.

The legislatures who enact laws criminalizing child sex abuse, the police and prosecutors who enforce these laws, and society at large have grown increasingly aware of the need to protect children throughout the criminal process.4 The growing emphasis on child victim rights in this process has led to debate within the legal community regarding how to balance the welfare and rights of the victim with those of the defendant. Society's pronounced interest in and concern over child sexual assault creates a danger of the law providing too much protection for the child victim, thereby infringing on the rights of the accused.5 Courts and legislatures have put forward an array of standards designed to achieve the correct balance.6

A major issue at the center of this debate is whether courts should have the authority to compel independent psychological examinations of child sex crime victims at the defendant's request. Often, the only witnesses to sex crimes against children are the victims themselves.7 Proponents of allowing courts to compel these examinations under at least some circumstances claim that psychological examinations are necessary to assess the reliability of a child witness and to ensure that an adequate defense can be presented.8 In contrast, opponents view such court-ordered examinations as an infringement on the welfare and rights of the victim9 and as an unnecessary and unreliable discovery tactic that will deter future victims from coming forward.

In 2006, two state supreme courts faced this issue and reached contrary conclusions. The Supreme Court of Virginia held in Nobrega v. Commonwealth10 that "a trial court has no authority to order a complaining witness in a rape case to undergo a psychiatric or psychological examination."11 The court reasoned that this outcome reflected the proper balance between criminal defendants' and victims' rights; altering this balance by giving trial courts the power to compel independent psychological examinations of victims was "properly left to the General Assembly to consider as an issue of public policy."12

In contrast, the Supreme Court of Nevada determined in Abbott v. State13 that "[d]enying the defendant an opportunity to examine the victim could have disastrous consequences, especially where the victim's veracity is seriously called into question and the defendant needs an independent psychological examination to present an adequate defense. …

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