On appeal from the Superior Court, Law Division, Somerset County.
Dreier and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
[248 NJSuper Page 2] Defendant D.R.H. was indicted and charged with two counts of aggravated sexual assault on the ten year old daughter of his girlfriend. His motion for a physical examination of the child was granted, the State moved for leave to appeal, and the matter was remanded for a hearing. A new order was entered, affirming his right to a physical examination of the child by a female doctor of his choosing. The order also provided that should she refuse to submit to such examination, the indictment
would be dismissed "unless the State shall offer new and not previously known evidence." When the child refused to go to the doctor, the indictment was dismissed.
The facts are not disputed. Ten-year old K.V.'s father, her custodial parent, reported to the authorities that K.V. had told him and his wife that while she was visiting her mother, his ex-wife, defendant had fondled her breasts and had inserted his fingers into her vagina. On May 11, 1989, K.V. was interviewed by detectives from the Somerset County Prosecutor's office. There she said that on two occasions between Halloween and Thanksgiving 1988 defendant placed his hand beneath her underpants and penetrated her vagina with his finger. On one occasion he also touched her breasts. She said he told her not to tell anyone about these incidents.
Following this interview, K.V. was taken, apparently at the prosecutor's direction, to a Dr. Joseph Smith, who reported that K.V. was
a very pleasant, intelligent young white female in no acute distress, however she was visibly sobbing at times and saddened. General physical exam is entirely within normal limits. There was noted on the skin no abnormal scratches or scars. There was no trauma noted to the breast area. The patient is prepubescent female with very early breast budding. The vaginal exam reveals there to be no obvious scarring around the labia or externally over the mons pubis. The hymenal ring does appear to be broken with a vertical measurement of 1 cm. and a horizontal measurement of 7 mm. for the opening. There was no abnormal discharge noted. The rest of the pelvic gynecologic exam appeared to be normal. There was no evidence of any problems in the anus area or the rectal area.
MY IMPRESSION IS THAT THE ALLEGED PENETRATION ON TWO OCCASIONS BY THE FINGER OF THE PERPETRATOR WOULD BE CONSISTENT WITH THE EXAMINATION WHICH WAS JUST DONE AND THEREFORE THE HISTORY GIVEN BY THE CHILD, K.V., IS CONSISTENT WITH THE PHYSICAL EXAM.
Defendant was indicted and, on July 11, 1989, K.V. wrote and signed a note saying, "Nothing happened, I just wanted to protect my Mom." Defendant moved to have K.V. examined by a physician chosen by him. On September 19, 1989, the judge received a note from the child.
Dear Judge, I'm not going to be examined again. They already put me through enough. Why would I have to be examined if nothing happened to me. I don't understand why they don't just drop this. I don't know any one my age who has been put through as much as me. I'm never going to see another doctor or psychologist again.
After a remand, the judge received another letter.
Dear Judge Imbriani, I thank you for your letter. I just wanted to write you again to let you know that I can't understand why you still didn't drop the charges. Because of all this stupid charges I can't even see my mom, even when nothing happened to me. If it will help you understand better I'll talk to you in person. I just don't want to see Rick go to jail for something he didn't do. Sincerely --
On December 7, 1989, following remand, the judge took testimony from K.V. The ...