Illinois Ends Court-Ordered Medical Exams of Complainants
Illinois trial judges no longer have discretion to order defense medical exams of sex abuse complainants. Henceforth, such exams will occur only when the complainants consent-- no matter how much the accused needs the evidence such an exam would produce. When a complainant refuses an exam by a defense medical expert, though, the prosecution may be limited in the testimony it elicits from any other physician or nurse who has examined her or him.
The case is People v. Lopez, 800 N.E.2d 1211 (Ill. 2003). Lopez was indicted for aggravated criminal sexual abuse of a girl who was twenty months old when a physician examined her genitals and concluded she had suffered abuse. A second physician examined the child, took 17 colposcopic photographs, and made findings "suspicious for" digital penetration. The defense then moved for its physician to examine the child. By affidavit the defense physician testified that exam techniques not used in the first two exams, including changing the child's position during the exam, would confirm or dispel a doubtful finding in those exams.
The trial court granted the motion, but the child's family refused to produce her for the exam. The issue reached the Supreme Court of Illinois before trial.
The supreme court examined its own prior decisions and cases from Colorado, Florida, New Jersey, Rhode Island, Tennessee, and West Virginia-- all permitting trial judges to order defense medical exams of sex abuse complainants when a compelling need is shown. Cases from North Carolina and Texas were discussed by both the majority and the concurring opinions, which disagreed about their meaning.
The court decided to change Illinois law on court-ordered physical examinations of sexual assault complainants to make it match the law on court-ordered psychological examinations of them. "The effects of both types of examinations can be intolerably harassing and intimidating and can cause further harm to the victim," the court said. Courts may no longer order either type of examination, the court decided.
The court recognized that permitting complainants to refuse defense medical exams could give the prosecution an unfair advantage at trial. If the complainant consented to an exam only by the prosecution's medical witness, any medical expert who testified for the defense would have less credibility because he or she had not examined the child personally. The court therefore ruled that, in such a case, the trial court could limit the testimony of the person who had examined the complainant.
If, though, the prosecution called an expert witness who had not examined the child, he or she would have no advantage over a defense expert. The court therefore ruled that that witness should be permitted to testify fully about the findings in the exam and their significance.
The concurring opinion argued that the compelling need standard for court-ordered exams should have been preserved (and that Lopez had not shown a compelling need for an exam). It predicted that the change in the law would cause prosecutors to pressure complainants to consent to defense exams-- even when no compelling need for a defense exam could be shown-- so the prosecutor's examiner could testify fully at trial.
Copyright © 2003 David S. Marshall
