dissenting:
This opinion represents the final step in the elimination of a defendant’s opportunity to have a psychological examination of the alleged victim in a child sexual assault case and the end of any ap*627pearance of fairness in such criminal proceedings. I dissent to this dramatic change in the criminal law and to the conclusion that the district court manifestly abused its discretion in permitting an examination of the alleged child victim in this case.
The determination of whether a witness is competent to testify is one of the critical threshold questions in the trial process. The very basic requirements are that a witness has the ability to observe and relate relevant facts on the witness stand and to understand the requirements of the witness oath.1 Nowhere is this concern greater than with the testimony of children. The Nevada Legislature even requires that the district court determine whether a child is competent to testify before he or she is permitted to take the stand.2
This court has considered numerous cases involving whether a child was competent to testify.3 We have instructed the district court that when evaluating a child’s competency, the court should consider, among other factors, whether the child is unduly subject to adult suggestions and whether the child has been coached to testify a certain way.4 We have also recognized that courts are often helped by expert testimony on such subjects as the child’s susceptibility to coaching, the child’s desire to please an adult, and the appropriateness of the child’s examination conducted by law enforcement and health care providers.5 Indeed, several scholars agree that experts can be effective in evaluating the reliability of a child’s testimony since children can often be influenced to testify in a certain manner.6
In the past, this court has been very concerned that a level playing field exists when evaluating the reliability of a child’s testimony.7 In fact, it was this fairness concern that led to our decision *628in Lickey v. State,8 which involved several problematic practices used by the State in a child sexual assault case, namely, the State was permitted to call a clinical psychologist specializing in child sexual abuse, while the defense was not. The State’s psychologist reiterated on the stand what the child had told her in their interviews, concluded that the victim had been sexually molested, and opined that the child was telling the truth.9 Prior to trial, Lickey had moved to have the child victim examined by a defense psychiatrist to refute the testimony of the State’s psychologist, but his motion was denied.10
This court opined that general notions of fairness dictate that failure to provide equal access to expert psychiatric witnesses prejudices a criminal defendant and stated:
The assistance a psychologist offers a defendant is very important in sexual assault cases. In Warner, we reversed a conviction for sexual assault because of ineffective counsel. We held that defense counsel was ineffective in part because he failed to interview the complaining minor or request a court order requiring her to undergo a physical or psychological examination. If failure to request a psychological examination constitutes grounds for a finding of ineffective counsel, it logically follows that a defendant facing charges of sexual assault of a minor should be afforded an expert psychiatric witness.
. . . We conclude that unless competent evidence presents a compelling reason to protect the victim, it is error to deny a defendant the assistance of a defense psychologist or psychiatrist to examine the child-victim and testify at trial when the State is provided such assistance.11
Following Lickey, this court reviewed several cases involving the issue of the veracity of a child’s testimony and the use of expert testimony in assessing it. In Koerschner v. State,12 we felt it necessary to set forth guidelines to be used by the district court in deciding whether there is a compelling need to order a psychological examination of the alleged child victim. We held that the district court should consider three factors: (1) whether the State calls or benefits from a psychological expert, (2) whether little or no corroboration of the offense exists beyond the victim’s testimony, and (3) whether there is a reasonable basis for believing that the vic*629tim’s mental or emotional state may have affected his or her veracity.13 This test incorporated our concern expressed in Lickey that both parties should ordinarily have equal access to expert witnesses, but changed the focus of the test to make the compelling need factor the overriding judicial question to be determined based on the aforementioned three-part test.14 Even though we established a stricter standard to be met before a child victim could be ordered to submit to a psychological examination, we maintained an appropriate balance between the competing interests of protecting a child from unnecessary examinations and a defendant’s right to a fair trial. No such observation can be made about the majority opinion in this case.
From all accounts, the test set forth in Koerschner for determining whether there is a compelling need to examine an alleged child victim has worked well. It is a strict test that on occasion will permit the State to have an expert psychologist testify when the defense does not. In spite of this test that apparently has served well the aim of justice in Nevada, the State how requests this court to prevent any further examination of child victims because there is no legislative or judicial authority to do so. This argument is made even though our Legislature has never addressed the specific issue, and this court has continually held that Nevada courts have authority to order the examination of child victims in appropriate cases. Our past decisions are a clear indication that we have believed that the courts of Nevada have the authority to order psychological examinations when necessary to provide a fair tribunal and to meet due process requirements. Thus, the only determination that we should make in reviewing the State’s petition in this case is whether the district court abused its discretion in ordering a psychological examination of the child. This is why the majority opinion is so perplexing.
The majority unequivocally reaffirms that Nevada courts have the authority to order an alleged victim of sexual assault to submit to a psychological examination by the defendant’s expert in certain narrow circumstances, but then makes it almost impossible for such an examination to take place. First, under the majority’s modified Koerschner test, the defense must make a prima facie showing of a compelling need, and in assessing whether the defense has made a prima facie showing of a compelling need, the district court is evidently no longer to consider whether the State will benefit from the use of expert testimony. I see no reason for the narrowing of the Koerschner test since it provided proper guidance to the district court, while effectively balancing the needs of the victim and the defendant.
*630More alarming, however, is that after unequivocally declaring the right of Nevada courts to order psychological examinations of child victims and, by inference, indicating that such examinations are necessary and appropriate in some cases, the majority saves its “Sunday Punch” for last. It declares that a victim is not required to submit to a psychological examination under any circumstances, even when court ordered. In other words, the alleged victim can, and probably will, trump the need for a psychological examination in every case, even though the defendant has shown a compelling reason for an examination, and the district court has ordered that an examination be conducted. The remedial solution that is adopted by the majority when the victim refuses to submit to an examination is to prevent the State from introducing expert testimony. This may solve the fairness question in most cases, but certainly not in all cases. Instances where a child is under a psychological impediment to telling the truth or has been extensively coached are just two examples of cases where an examination of the alleged child victim would be appropriate, even if the State does not plan to use an expert witness at trial. Additionally, I can envision cases where the State will want to call a psychological expert, only to be precluded by the child victim refusing, through his or her parent or guardian, to submit to any examination. Thus, the majority has effectively eliminated the ability of a defendant to secure an examination of the child victim under almost any circumstances. But perhaps this is the unstated goal of the majority opinion.
In the past decade, there has been a steady removal of the safeguards given to defendants to test the reliability of a child victim’s testimony. For example, this court has eliminated the need for strict compliance with the legislatively imposed duties of the district court to determine the admissibility of certain evidence in child sexual assault cases.15 In addition, we have unnecessarily tightened the standard for obtaining an examination of a child victim, as I noted in Koerschner,16 and the majority’s decision today effectively eliminates that opportunity. At the same time, the *631Legislature has dramatically increased the penalties for child sexual assault17 and child molestation.18 With the penalties increasing to extreme levels, this court should at least maintain the existing safeguards in place to evaluate the reliability of a child victim’s testimony. With the removal of these safeguards, there is a greater chance that a defendant will be wrongfully convicted, which is even more troubling given the increased consequences of such a *632conviction. Nonetheless, this court appears to be entirely concerned about the welfare of the child victim, while remaining unconcerned about the fairness of the process for the accused.
Finally, I also dissent to the conclusion that the district court abused its discretion when it ordered a psychological examination of the alleged victim in this case. The six-year-old child lived with her natural father because her natural mother was a stripper and lived in a bad neighborhood. The accused natural father claimed that his daughter has an unusually precocious knowledge of sexual matters because she has watched pornography at her mother’s house. He also claimed that he and his former wife were in a custody battle and that she had coached their child about what to say against him. The district court was presented with little corroborating evidence of the sexual assault and apparently believed there was a serious question as to the child’s veracity. The majority opinion correctly notes that we will not disturb a discretionary act unless that discretion is manifestly abused or exercised arbitrarily or capriciously. While this is a close case, I do not think the district court manifestly abused its discretion.
For these reasons, I dissent.
Felix v. State, 109 Nev. 151, 173, 849 P.2d 220, 235 (1993).
See NRS 47.060(1) (stating that the district court determines preliminary questions concerning the qualification of a person to be a witness).
Evans v. State, 117 Nev. 609, 28 P.3d 498 (2001); Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000); Felix, 109 Nev. 151, 849 P.2d 220.
Evans, 117 Nev. at 624, 28 P.3d at 509 (citing Felix, 109 Nev. at 173, 849 P.2d at 235).
Id.
See Alan J. Klein, Forensic Issues in Sexual Abuse Allegations in Custody/Visitation Litigation, 18 Law & Psychol. Rev. 247 (1994) (discussing the possibility that children may accept and report misleading information in a sexual abuse case as a result of “coaching”); Maggie Bruck & Stephen J. Ceci, Special Theme: Suggestibility of Child Witnesses—The Social Science Amicus Brief in State of New Jersey v. Margaret Kelly Michaels, 1 Psychol. Pub. Pol’y & L. 272 (June 1995) (examining the influence of misleading suggestion on a child’s recall of an event).
See Marvelle v. State, 114 Nev. 921, 927-28, 966 P.2d 151, 155 (1998); Felix, 109 Nev. at 173, 849 P.2d at 235; Lickey v. State, 108 Nev. 191, 195, 827 P.2d 824, 826 (1992).
108 Nev. at 193-94, 827 P.2d at 825.
Id. at 194, 827 P.2d at 825.
Id. at 192-93, 827 P.2d at 824-25.
Id. at 194-95, 827 P.2d at 826 (citation omitted).
116 Nev. 1111, 13 P.3d 451 (2000).
Id. at 1117, 13 P.3d at 455.
Id. at 1116-17, 13 P.3d at 455.
See Braunstein v. State, 118 Nev. 68, 80-81, 40 P.3d 413, 422 (2002) (Rose, J., concurring in part, dissenting in part) (observing that the majority “strips yet another procedural safeguard” from anyone accused of child sexual assault and “reverses a decade of precedent in the process” by concluding that the district court’s failure to hold a trustworthiness hearing is not grounds for automatic reversal and was harmless error); Koerschner, 116 Nev. at 1120, 13 P.3d at 457 (Rose, J., concurring) (disagreeing with the majority’s decision to overrule long-standing precedent that “attempted to level the playing field when the State prosecutes a child sexual assault case with the aid of a psychological expert’s testimony”).
See Koerschner, 116 Nev. at 1122, 13 P.3d at 458 (Rose, J., concurring) (noting that the majority opinion changes the standard involved in obtaining a psychological examination in a child sexual assault case by requiring the defen*631dant to prove that there is a compelling reason for an examination, rather than requiring the State to show that there is a compelling need to protect the alleged child victim).
See NRS 200.366(3)(a)-(b) (providing that a person who commits a sexual assault against a child under the age of 16 years which results in substantial bodily harm to the child, shall be imprisoned in the state prison for life without the possibility of parole, and if the crime does not result in substantial bodily harm to the child, by imprisonment in the state prison (1) for life with the possibility of parole, with eligibility for parole beginning at 20 years; or (2) for a definite term of 40 years, with eligibility for parole at 15 years); NRS 200.366(3)(c) (providing that a person who commits sexual assault against a child under the age of 14 years which does not result in substantial bodily harm to the child, shall be imprisoned in the state prison for life with the possibility of parole, with eligibility for parole beginning at 20 years); NRS 200.366(4) (providing that a person who commits a sexual assault against a child under the age of 16 years and who has been previously convicted of a sexual assault or any other sexual offense against a child, shall be imprisoned in the state prison for life without the possibility of parole). To be subject to such a severe sentence, only slight penetration on the part of the defendant is required. See Hutchins v. State, 110 Nev. 103, 110, 867 R2d 1136, 1140-41 (1994) (concluding that evidence that the defendant placed his tongue on, not in, the victim’s vagina was sufficient to sustain a conviction for sexual assault because any intrusion, however slight, of any part of the victim’s body, or any object manipulated or inserted by the defendant into the genital or anal openings of the victim’s body is considered penetration). If a deadly weapon or any object that can cause harm is used to accomplish the crime, the sentence is doubled. NRS 193.165.
See NRS 201.230(2)(a)-(b) (providing that a person who commits lewdness with a child under 14 years of age shall be imprisoned in the state prison (1) for life with the possibility of parole, with eligibility for parole at 10 years; or (2) a definite term of 20 years, with eligibility for parole at 2 years). To be subject to such a severe punishment, the defendant must willfully and lewdly commit a lewd act upon or with the body, or any part or member thereof, of a child under the age of 14 years, “with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child,” but only the slightest degree of touching is required. See NRS 201.230(1); see also U.S. v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (observing that under California’s lewdness statute, which is nearly identical to NRS 201.230, even an innocuous touching, if performed with lewd intent, violates the statute); Summers v. Sheriff, 90 Nev. 180, 182, 521 P.2d 1228, 1229 (1974) (observing that a California appellate court affirmed a conviction where the defendant placed his hand between the child victim’s legs without placing it under her clothing). If a deadly weapon or an object that can cause harm is used to accomplish the crime, the sentence is doubled. NRS 193.165.