On certification to the Superior Court, Appellate Division, whose opinion is reported at 248 N.J. Super. 1 (1990).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
In this criminal case, the defendant is charged with the sexual abuse of a young child. The central issue on appeal is whether a child victim of sexual abuse may be compelled, at the request of the defendant, to submit to a physical examination for evidence relating to such abuse.
The defendant in this case had been indicted for first degree sexual offenses based on the alleged sexual abuse of a ten year-old girl. Shortly after the alleged abuse, she was examined
by a physician at the State's request. According to the physician's report, the results of the examination were consistent with the allegations of sexual abuse. The defendant then sought to have the child examined by his own physician. The victim, however, refused to undergo another physical examination. Following a hearing, the trial court ordered that the child submit to a physical examination. When she persisted in refusing, the trial court dismissed the indictment. On appeal by the State, the Appellate Division affirmed the dismissal of the indictment. 248 N.J. Super. 1, 589 A.2d 1353 (1990). This Court granted the State's petition for certification to consider the validity of the rulings of the trial court. 126 N.J. 326, 598 A.2d 885 (1991).
The alleged victim, K.V., was ten years old in 1988. Her parents were divorced, and she and her brother lived with their father and his wife in Westfield. K.V.'s mother lived with her boyfriend, D.R.H., the defendant, in Bridgewater. K.V. and her brother frequently spent the night at their mother's home. On May 2, 1989, both children told their father, R.V., that they had seen defendant abusing their mother. K.V. also described the sexual abuse defendant had inflicted against her. R.V. reported to "the authorities" that K.V. told him that defendant had fondled her breasts and had inserted his finger into her vagina. On May 11, 1989, detectives from the Somerset County Prosecutor's Office interviewed K.V. She told them that twice between Halloween and Thanksgiving 1988, defendant had placed his finger inside her underpants and penetrated her vagina with his finger, and also had touched her breasts on one occasion. She said that he told her not to tell anyone about these incidents.
At the request of the prosecutor's office, K.V. was taken to Dr. Joseph Smith for an examination. Dr. Smith reported the results of his physical examination of K.V.:
Physical exam revealed 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 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.
Dr. Smith's report recounted the history related by K.V. According to Dr. Smith, K.V. spoke of defendant "coming in to her room at night lifting up her nightgown and rubbing his hand over her vaginal area. She did claim there was finger penetration both times this occurred, maybe 5-10 minutes duration she said." The report added that "there was never any physical abuse to the patient according to her . . . . The patient said that this boyfriend of her mother claimed she, (the patient) could not tell anyone because she might get in trouble if she did. That was what her reluctance was to bring these matters up earlier."
Dr. Smith's report concluded in large print:
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.
On May 11, 1989, K.V. made an audio and videotaped statement to police interviewers, during which she described the alleged abuse. She said that on the first occasion, she was sleeping and defendant shook her shoulder to wake her, then inserted his finger into her vagina. K.V. said she knew it was defendant because she recognized his voice and could see him in the light from outside of her room. She told investigators she was afraid that defendant would injure her or her mother based on her having witnessed defendant assault her mother in the past. During the second incident, K.V. said defendant pulled the covers up but did nothing further. During the interview,
K.V. also marked and initialed drawings to indicate where and with what body parts defendant had touched her.
On the same day, K.V.'s mother also spoke with investigators in a tape-recorded interview. She described a pattern of physical abuse personally inflicted upon her by defendant. She added that defendant told her that he had once fondled K.V.'s vagina with K.V.'s permission, and that he planned to rape K.V. and then sell her to a South American prostitution ring.
Defendant was indicted on June 15, 1989, and charged with two counts of first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a. Defendant was extradited from Florida, where he was serving time on separate charges, and incarcerated pending trial. K.V.'s mother began visiting defendant in jail. She soon retracted her allegations against defendant. While K.V. was visiting, K.V.'s mother put K.V. on the phone with defendant, who was in jail. She also brought K.V., escorted by one or both of defendant's parents, to defendant's attorney's office. K.V. allegedly wrote and signed a retraction note. The note, notarized on July 11, 1989, said: "Nothing happened. I just wanted to protect my mom."
Defendant made a motion to have K.V. examined by a physician selected by him. On August 29, 1989, K.V.'s father wrote to the prosecutor that he adamantly opposed a second examination. R.V. wrote that
[p]rior to her first examination, I requested that it be done by a woman. I was assured by the detectives that it would be. I assured [K.] that it would be. Nevertheless, it turned out to be a male doctor . . . . [K.] was humiliated, angry and disillusioned. As is often the case for young children, she felt violated by the male doctor. It turned out to be another traumatic experience for her.
He added that at the very least, any required examinations should be performed by a woman doctor.
On September 19, 1989, the trial court received another note from K.V.:
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.
The trial court granted defendant's motion to compel a second examination, finding that a physical examination would not be harmful to K.V. The State appealed, and on November 8, 1989, the Appellate Division summarily remanded the matter to the trial court to provide K.V. with an opportunity to be heard. ...