The Illinois Supreme Court may soon deicde the ground rules for determining when a complaining witness in a sex offense case should be produced for medical examination by a defense expert. In March, the court heard oral argument in People v. Lopez.1 When the court hands down its decision, it should clarify an ambiguous previous holding in People v. Glover2 and set forth a definitive standard for resolving this issue.
This article will set forth the background of Lopez, identify the current state of the law in Illinois governing production of alleged victims for medical examination purposes, and describe how other jurisdictions have treated the same issue. It will also describe the court’s options and the associated implications.
II. The Background of Lopez
When B.B. was 20 months old, her grandmother feared that B.B. was being sexually abused.3 In December 1998, B.B. was examined by Dr. Anderson, who observed scar tissue "covering the opening of the vagina and obscuring the hymen."4 Unable to adequately inspect the hymen,5 Dr. Anderson suspected sexual abuse "based on the apparent scar tissue surrounding the vagina."6 Shortly thereafter, Dr. Flannery conducted another examination and took photographs of the vaginal region, noting a partial obliteration of the hymenal rim and concluding that the "[e]xam [was] suspicious for trauma most likely consistent with digital penetration."7
After receiving the reports of Drs. Anderson and Flannery and the photographs, the defense moved for the court to order the State to produce B.B. for an independent gynecological examination.8 Dr. Slupik, expert for the defense, stated by affidavit that he had reviewed the medical records and photographs and was unable to concur with Dr. Flannery’s conclusion that the hymen was damaged.9 In particular, Dr. Slupik noted that "[p]artial obliteration of the hymen is not conclusively seen on the photographs submitted to me . . . A repeat examination of the alleged victim would resolve whether there is partial obliteration posteriorly."10 The trial court granted the motion but B.B.’s family refused to produce her for the examination.11
Moving to dismiss the indictment, the defense argued that, because an examination of B.B. could exonerate the defendant, his "due process right to a fundamentally fair trial [would] be destroyed without the opportunity to obtain the potentially exonerating evidence that could come along only from an independent examination of the complaining witness."12 At the hearing on the motion,13 the State requested an evidentiary hearing, but the defense argued that when the court ordered the examination, it had already balanced the defendant’s due process interests against the privacy interests of the victim.14 The State countered that the defense and State experts disagreed only with respect to the partial obliteration of the hymen and that an evidentiary hearing was necessary to determine whether a finding of obliteration of the hymen is required to conclude that traumatization of the genital area had occurred.15 The State also argued that it was the psychological impact, and not the physical nature,16 of the examination that provided reason for concern.17
Denying the State’s request for an evidentiary hearing and granting the defense motion, the court found that B.B’s body was physical "evidence," that the proposed defense examination of B.B. would be "more than potentially useful," and that a "clear need" for the examination existed.18 While the court recognized the issue of victim rights in the case, it also noted the implications for the defendant’s due process right to a fundamentally fair trial, right to effective assistance of counsel, and right of confrontation under the United States and Illinois Constitutions.19
The Second District vacated and remanded.20 Relying primarily on People v. Glover21 and People v. Visgar,22 the court held that the trial court did not apply the proper standard of a demonstrated "compelling need" for the examination.23 Justice O’Malley, writing for the majority, pointed out that, given the record before the court, the defendant had not demonstrated a "compelling need" for the requested examination. Dr. Slupik had not addressed the reasons why Dr. Flannery’s photographs were purportedly inadequate to demonstrate partial obliteration of the hymen, nor did Dr. Slupik address any of the findings of Dr. Anderson.24 Citing the Tennessee Supreme Court’s decision in State v. Barone,25 the Second District adopted a balancing test, holding that "compelling need" should be determined by "whether the evidence sought by the defendant is of such importance to his defense that it outweighs the potential for harm caused by the invasion of the complainant’s privacy, including the prospect that undergoing a physical examination might be used for harassment of a prosecuting witness."26 The relevant factors to be weighed in making the analysis are: (1) the age of the complainant; (2) the remoteness in time of the alleged criminal act to the examination proposed; (3) the intrusiveness of the proposed examination; (4) the examination’s potential physical and emotional affects upon the victim; (5) the probative value of the examination; and (6) the evidence already available to the defendant.27 The court then remanded the matter, directing the trial court to give greater consideration than it had previously to the privacy rights of B.B., to the nature of the proposed examination and the potential impact on B.B., and to the fact that more than two years had passed since the alleged criminal incident.28
III. Treatment of the Issue in Illinois and Other Jurisdictions
Lopez presents the Illinois Supreme Court with the following question: What must a defendant in a sex offense case show in order to prevail on a motion for production of the complaining witness for purposes of a defense medical examination? Specifically, the court must clarify its holding in Glover, where the court concluded, without providing much in the way of rationale, that the trial court had not abused its discretion in denying a defense request for a court-ordered opthalmological examination of a complaining witness on the ground that "the record reflects no compelling reason."29 Twelve years later, in Visgar, the Second District relied on this summary conclusion in requiring that the defendant, charged with lewd fondling of a child, show a "compelling need" for a requested physical examination of the complaining witness.30 As noted by the Lopez court, the Glover and Visgar decisions are the only published cases in which Illinois reviewing courts had occasion to apply the "compelling need" test to a request by the defense for an independent physical examination of the complaining witness in a sex offense case.31 However, Glover and Visgar provide no helpful analysis and Visgar is inapplicable in cases where the State has specifically alleged that the defendant has caused the vagina of the complaining witness to be penetrated.32
Most likely, the Illinois Supreme Court will determine, in Lopez, that "compelling need" requires one of two analyses. One analysis—that which was adopted by the Second District—requires a balancing of a variety of factors in determining whether the potential for harm to the complaining witness outweighs the defendant’s "compelling need" for the evidence.33 A number of states have adopted this approach, among them Tennessee, New Jersey, and Rhode Island.34
A second analysis, one which has until now been applied only in juvenile proceedings, is that employed by the Maryland Court of Appeals35 in In re Mark M.36 Mark M. was a proceeding in which, after investigating allegations of abuse, the county department of social services filed a petition, asserting that Mark M. and Mary M., both minor children, should be declared children in need of assistance ("CINA").37 During the course of the proceedings, the children’s mother made an oral motion to have Mark M. evaluated independently by a qualified child therapist of her choice.38 The juvenile court denied the motion.39 The Maryland Court of Appeals upheld the denial of the motion, applying a two-prong "good cause" test: in making a motion to compel a physical or mental examination of a child in a CINA proceeding, the movant must demonstrate (1) that the proposed examination is reasonably calculated to assist the trier of fact in rendering its decision and (2) that the proposed examination will not be harmful to the child.40
IV. The Court’s Options
At first blush, it appears that the "compelling need" standard is the only true contender in cases involving examinations of the victim. It is this standard that has been adopted by a number of jurisdictions and applied by the appellate courts in Illinois. Moreover, the "good cause" standard apparently has not been used outside Maryland in criminal prosecutions and even in Maryland, it has been applied only in juvenile proceedings.
Yet, the "good cause" standard is a viable alternative. As noted by the Maryland Court of Appeals, "independent medical examinations of victims in criminal prosecutions . . . is analogous to the situation of an abused child in a CINA proceeding."41 While the test was applied in Mark M. to determine whether there should be a psychological examination, the test is flexible enough to be applied in determining whether a physical examination should be granted.42 And, simply because the "good cause" standard exists as an alternative and requires a different showing than the "compelling need" standard, it should at least be considered in any calculus attempting to resolve the standoff between the due process rights of the defendant and the privacy interests of complaining witnesses.
The Mark M. court compared its "good cause" standard with the "compelling need" standard:
In criminal cases involving in-dependent medical examinations of a child victim of sexual assault or abuse, the courts of other jurisdictions require a higher standard of proof before granting a request for an examination, such that the person or entity seeking the examination bears the burden of demonstrating to the court a compelling need or reason for the examination.43
It should be noted, however, that the Maryland court’s characterization of the "good cause" standard as requiring a lesser showing than that required under the "compelling need" standard may not be entirely accurate. The "compelling need" standard is a balancing approach where a variety of factors are taken into consideration and presumably, a 51% favoring will determine whether there is to be an examination. The "good cause" standard, however, is a two-prong test in which both elements must be met. Thus, a party requesting a medical examination under the "good cause" standard must prove that the proposed examination will not harm the child, while a party contesting such examination under the "compelling need" standard may balance the potential effects of the examination upon the complaining witness against the rights of the defendant.
Whichever standard the Illinois Supreme Court adopts, Lopez should shed much-needed light on the Glover decision and provide Illinois courts with a means of balancing the privacy interests of the complaining witness and the defendant’s right to due process in sex offense cases.
1 328 Ill.App.3d 563, 766 N.E.2d 329 (2d Dist. 2002).
2 49 Ill.2d 78, 273 N.E.2d 367 (1971).
3 Lopez, 766 N.E.2d at 331.
5 B.B. expressed discomfort and a desire not to proceed with the examination. Id.
7 Id. at 332.
11 Id. at 333.
13 The parties agreed that the motion would be more appropriately addressed as one in limine. The court reinstated the indictment and the defense filed such a motion to bar, inter alia, the testimony of Drs. Anderson and Flannery and the evidence derived from the examinations they conducted.
14 Id. at 334.
16 Dr. Slupik’s affidavit indicated that the examination would require no longer than five minutes and that no instruments other than Q-tips would be used. Id. at 332.
17 Id. at 334.
18 Id. at 334-35.
19 Id. at 335.
20 Id. at 340.
21 49 Ill.2d 78, 273 N.E.2d 367 (1971).
22 120 Ill.App.3d 584, 457 N.E.2d 1343 (2d Dist. 1983).
23 Lopez, 766 N.E.2d at 337-388.
24 Id. at 337.
25 852 S.W.2d 216 (Tenn. 1993).
26 Lopez, 766 N.E.2d at 338, citing Barone, 852 S.W.2d at 222.
27 Lopez, 766 N.E.2d at 338.
28 Id. at 339.
29 Glover, 273 N.E.2d at 370.
30 Lopez, 766 N.E.2d at 336, citing Visgar, 457 N.E.2d at 1343.
31 Lopez, 766 N.E.2d at 338.
32 It is on this ground that Lopez is distinguishable from Visgar. Lopez, 766 N.E.2d at 336. The Visgar defendant, at the time of his motion, was charged only with having "lewdly fondled or touched" the complaining witness. The Visgar court noted that "[w]here there is no allegation that a complaining witness was injured or that any penetration had been made into her vagina, a doctor’s examination of the witness would not be necessary for any purpose. Visgar, 457 N.E.2d at 1346, citing People v. Woods, 13 Ill.App.3d 860, 301 N.E.2d 593 (2d Dist. 1973)).
33 Lopez, 766 N.E.2d at 338. See also supra notes 21-23 and accompanying text.
34 See State v. Barone, 852 S.W.2d 216, 222 (Tenn. 1993); State v. D.R.H., 604 A.2d 89, 95 (N.J. 1992); State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989).
35 The Maryland Court of Appeals is that state’s court of last resort.
36 782 A.2d 332 (Md. 2001).
37 Id. at 336.
38 Id. at 341.
40 Id. at 350.
42 Psychiatric and gynecological examinations have some common characteristics. "[M]any people are likely to find unusually intrusive medical examinations, such as psychiatric and gynecological examinations, uncomfortable or even traumatic." Lopez, 766 N.E.2d at 339, citing Privee v. Burns, 749 A.2d 689, 693 (Conn. Super. Ct. 1999).
43 Mark M., 782 A.2d at 350 n.8.
Todd R. Nelson is a second-year student at the Northern Illinois University College of Law. He serves as Notes and Comments Editor of the Law Review; Vice-Magister of the Holderman Inn of Phi Delta Phi; and Hamilton-Sundstrand Law Fellow in the Rockford Office of Prairie State Legal Services, Inc.