specially concurring:
I join in the result reached by the majority because I believe defendant failed to demonstrate a compelling need for an independent physical examination of the victim. I cannot join the balance of the majority opinion, however, because the majority eschews the compelling need test and holds that a trial court has no jurisdiction to order the physical examination of a victim of a sex offense. While I recognize that, in so holding, the majority attempts to protect victims of sex offenses, I believe the majority needlessly hampers the State in its prosecution of such crimes and unwittingly places the victims of sex offenses in situations where they will feel compelled to comply with the very requests for physical examinations the majority seeks to deny.
My consideration of this issue necessarily begins with an examination of People v. Glover, 49 Ill. 2d 78 (1971), the opinion the majority overrules. In Glover, the defendant filed separate motions to require the victim of a sexual assault to submit to a psychiatric examination and an examination by an ophthalmologist. In the motion for the ophthalmological examination, the defendant alleged that the victim was the only eyewitness, it was dark at the time of the assault, and the examination was necessary to determine the victim’s ability to see and identify the defendant. In affirming the denial of the motion, this court observed: “With respect to the ophthalmological examination, although the court had jurisdiction to order it, the record reflects no compelling reason therefor and the denial of the motion was not an abuse of discretion.” Glover, 49 Ill. 2d at 82.
The Glover court sought a balance between the rights of the victim of a crime and the rights of the defendant. The defendant’s request for a physical examination was to be granted only upon the showing of a compelling need. Further, the determination to grant or deny such a request was to rest within the sound discretion of the trial court. See Glover, 49 Ill. 2d at 82. The court’s holding in Glover foreshadowed its holding in People v. Wheeler, 151 Ill. 2d 298 (1992).
In Wheeler, the court considered whether a defense expert should have been allowed to examine the victim to determine whether she suffered from rape trauma syndrome. The court first commented on the nature of the defendant’s rights at trial:
“A defendant’s right to due process is the right to a fundamentally fair trial, including the right to present witnesses in his own behalf. [Citation.] ‘Few rights are more fundamental than that of an accused to present witnesses in his own defense.’ [Citation.] In this case the trial court did not preclude defendant from presenting his own expert witness. Rather, because defendant’s expert was prevented from personally examining the victim the basis on which the expert could form an opinion was limited. In this manner the court’s order restricted the ability of defendant’s expert to form an opinion.” Wheeler, 151 Ill. 2d at 305.
In counterbalance to the rights of the defendant, the court commented on the challenges faced by the victims of sex offenses in the prosecution of these crimes, particularly the attacks on the competency and credibility of the victims as witnesses. Wheeler, 151 Ill. 2d at 306-07. The court noted that in enacting section 115— 7.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.1), the legislature “intended to eliminate the defense practice of intimidating sex-offense victims through psychological examinations focusing on their competency and credibility as witnesses.” Wheeler, 151 Ill. 2d at 307.
The court drew a line, however, between psychological examinations used to attack the competency and credibility of victims of sex offenses and the examination the defendant sought to refute evidence of rape trauma syndrome:
“The issue addressed by section 115 — 7.2 [of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7.2)] is fundamentally distinguishable from the issue of the victim’s competency and credibility as a witness. Section 115 — -7.2 permits the use of expert testimony relating to the existence of post-traumatic stress syndrome. Rape trauma syndrome is the subcategory of post-traumatic stress syndrome which is common to victims of sexual assaults. Unlike psychological evidence regarding the victim’s competency and credibility as a witness, evidence of rape trauma syndrome is substantive evidence that a sexual assault occurred. By showing that a complainant suffers from psychological symptoms common to most victims of sexual assault, this evidence tends to support the proposition that the complainant was also the victim of a sexual assault.
Initially, the State argues that defendant has not presented a compelling reason for an examination of the victim. Thus, the State contends that defendant is not entitled to a court-ordered examination of the victim even without regard to section 115 — 7.1. The State’s argument ignores the impact of its rape trauma syndrome evidence. As previously stated, this evidence tends to prove that the victim was subjected to a sexual assault. The fact that the State is using evidence of rape trauma syndrome to prove that the victim was assaulted presents a compelling reason for defendant to examine the victim.
Defendant is not attempting to challenge the victim’s competency or credibility through a psychological examination. Instead, defendant is attempting to examine the victim for the purpose of challenging the State’s assertion that she suffers from rape trauma syndrome. ***
The State does not dispute that defendant was entitled to present evidence that C.K. did not suffer from rape trauma syndrome. Rather, the State argues that defendant’s expert witness could have formed an opinion on this subject by reviewing the various reports prepared in the case and observing the trial testimony of the victim and the State’s expert, Pamela Klein. Because defendant was not completely prevented from offering evidence that C.K. did not suffer from rape trauma syndrome, the State argues that application of sections 115 — 7.1 and 115 — 7.2 did not deprive defendant of a fair trial. This argument ignores the inherent qualitative differences between testimony from an examining expert and a nonexamining expert.
While it may be possible for an expert to form an opinion regarding rape trauma syndrome based only on a review of reports and trial testimony, this is clearly not the preferred method. An expert who has personally examined a victim is in a better position to render an opinion than is an expert who has not done so.” Wheeler, 151 Ill. 2d at 308-09. Lastly, the court observed that the need in a criminal
trial for a complete presentation of the facts was hampered by the restriction on the defendant’s ability to rebut the State’s rape trauma syndrome evidence. Wheeler, 151 Ill. 2d at 311. The court concluded:
“Because the State in this case had the exclusive right to examine C.K., the credibility of its expert was elevated above that of any nonexamining expert defendant could call. Thus, we find it is fundamentally unfair that the State was able to present the testimony of an examining expert but the defendant was limited to the testimony of a nonexamining expert. [Citation.]
We hold that unless the victim consents to an examination by an expert chosen by the defendant, the State may not introduce testimony from an examining expert that the victim of an alleged sexual assault suffers from a ‘recognized and accepted form of post-traumatic stress syndrome’ [citation]. Such an examination, if consented to, shall be conducted by an expert qualified by the court [citation], and shall be strictly limited to whether the victim has symptoms consistent with ‘any recognized and accepted form of post-traumatic stress syndrome.’ ” (Emphases omitted.) Wheeler, 151 Ill. 2d at 311-12.
To summarize the holding in Wheeler, the court recognized the need to protect the privacy of the alleged victim in a sex offense case. The court also recognized the defendant’s right to a fair trial and the disadvantage to the defense when its expert is not allowed to examine the victim. In the context of a psychological examination, the court found that evidence of rape trauma syndrome is substantive evidence that a sexual assault occurred and is in no manner equivalent to evidence regarding the victim’s competency and credibility as a witness. The court sought balance between the rights of the defendant and the alleged victim in allowing the trial court to order a psychological examination to rebut rape trauma syndrome evidence, but having the victim decide whether or not to comply with the order.
Of course the defendant must show a compelling reason for the examination in the first place (see Wheeler, 151 Ill. 2d at 308; Glover, 49 Ill. 2d at 82), and the examination must be performed by an expert qualified by the trial court (see Wheeler, 151 Ill. 2d at 312). A showing of a compelling need minimizes the occasions upon which outside pressures may be brought to bear on the alleged victim to agree to an examination. In other words, the victim is not faced with a decision to comply or not comply with an order for an examination where the defendant has not shown a compelling need for the examination.
The compelling need test is followed by the majority of the courts in our sister jurisdictions. See State v. McIntosh, 274 Kan. 939, 58 P.3d 716 (2002) (collecting cases); State v. Barone, 852 S.W.2d 216 (Tenn. 1993); State v. Delaney, 187 W Va. 212, 417 S.E.2d 903 (1992) (collecting cases); People v. Chard, 808 P.2d 351 (Colo. 1991). As in Wheeler, 151 Ill. 2d 298, these courts recognize the defendant’s interest in a fair trial. Chard, 808 E2d at 353. These court also recognize the intrusive nature of a physical examination and the potential for trauma, embarrassment and intimidation to the alleged victim. Barone, 852 S.W2d at 222; Chard, 808 P.2d at 355. The courts highlight, however, the differences in purpose between a psychological examination aimed at the credibility and competency of the alleged victim and a physical examination to establish a substantive defense to the charges against the defendant. Chard, 808 P.2d at 354. Balancing the intrusion upon the victim and the defendant’s right to a fair trial, these courts conclude that a trial court may exercise its discretion to order an involuntary physical examination only when a defendant demonstrates a compelling need or reason for the examination. Barone, 852 S.W2d at 222; State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989); Chard, 808 P.2d at 356.
The factors to be considered in determining whether a defendant has shown a compelling need for an independent examination are the age of the alleged victim; the remoteness in time of the alleged criminal incident to the proposed examination; the degree of intrusiveness and humiliation associated with the procedure; the potentially debilitating physical effects of such an examination; the probative value of the examination to the issue before the court; and the evidence already available for the defendant’s use. McIntosh, 274 Kan. at 953, 58 P.3d at 726; Barone, 852 S.W2d at 222; Chard, 808 P.2d at 355; Ramos, 553 A.2d at 1062. As noted in Ramos, 553 A.2d at 1062, “[t]he practice of granting physical examinations of criminal witnesses must be approached with utmost judicial restraint and respect for an individual’s dignity.”
Applying these factors to the case at bar, I conclude that defendant has failed to show a compelling need for the physical examination. I note the victim is of an extremely tender age. She was a mere 20 months at the time of the alleged criminal conduct, and about three years old when defendant requested that the court order the State to produce her for an independent gynecological examination. Defendant’s request for the physical examination was remote in time from the alleged criminal conduct. As of the time of this writing, an additional 45 months have elapsed, making it even less likely that an examination would result in evidence probative to the defense. The proposed gynecological examination is extremely intrusive. Given the nature of the proposed examination and the victim’s yet tender age, there exists the possibility of debilitating physical and mental effects from such an examination. Lastly, there is evidence already available for defendant’s use, including 17 colposcopic photographs of the victim’s vaginal area.
The majority, however, eschews the compelling need test and holds that the trial court is without jurisdiction to order a physical examination of the alleged victim of a sex offense. Because this holding is contrary to the conclusion in Glover that a trial court has jurisdiction to order a physical examination of a victim of a sex offense, the majority explicitly overrules Glover. Further, although the majority purports to follow Wheeler, in actuality, the majority overrules Wheeler. The court in Wheeler specifically distinguished between mental examinations aimed at attacking the victim’s integrity and examinations focused upon obtaining substantive evidence to refute the allegation of sexual assault. See Wheeler, 151 Ill. 2d at 308. In my estimation, a physical examination, as in the case at bar, is no doubt closer to the second type of mental examination than the first. The majority fails to provide a proper ground for differentiating between a physical examination and a mental examination relating to the existence of post-traumatic stress syndrome.
The majority cites State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989), and State ex rel. Wade v. Stephens, 724 S.W.2d 141 (Tex. Ct. App. 1987), in support of its holding that a trial court has no jurisdiction to order a physical examination of an alleged sex offense victim. I note that the jurisdictions cited are not as supportive as implied. In Hewett, 93 N.C. App. 1, 376 S.E.2d 467, the appellate court considered whether the trial court properly denied the defendant’s motion for a physical examination of the sex offense victim. In doing so, the appellate court rejected the defendant’s argument that the bodies of the alleged victims were physical evidence susceptible to objective tests and examinations like any other physical evidence. Hewett, 93 N.C. App. at 7, 376 S.E.2d at 471. The court then observed:
“[Cjourts are rightly solicitous when a human being’s privacy faces invasion. At the same time, we recognize that this defendant has been convicted of some of our most serious non-capital offenses, and our concern for his due process rights is, likewise, very strong. [Citation.]
We have carefully reviewed the record, and we do not find that defendant made a credible showing to the trial judge that the additional examinations he requested would have been probative. The last alleged incidence of abuse was 29 March; the new examinations would have taken place some six months later. Defendant made no showing that dilations, in September, of less than four millimeters would demonstrate that no penetration had occurred in February and March. He made no showing that normal measurements would not have been the result of vaginal constriction rather than non-abuse.” (Emphases added.) Hewett, 93 N.C. App. at 8, 376 S.E.2d at 471-72.
The court also observed that the defendant had made no showing that the new examinations were necessary. Hewett, 93 N.C. App. at 8, 376 S.E.2d at 472. The court concluded:
“We do not imply that a defendant charged with offenses such as these is precluded, in all cases, from receiving an independent medical examination of the alleged victim. On appeal, both the State and defendant have focused on North Carolina cases in which criminal defendants have asked trial judges to compel witnesses to undergo psychiatric examinations. The law in this State is that a judge has no discretionary power to require an unwilling witness to submit to such an examination. [Citation.] In our view, a trial judge would have the discretionary power to permit a second physical examination of an alleged sexual-abuse victim if the defendant shows the court that the examination would be probative, that it is necessary to the defendant’s preparation of his defense, and if the victim or the victim’s guardian consents to the examination. When, in a case such as this one, four life sentences are in part contingent on a distance of four millimeters, a defendant should not be absolutely foreclosed from having his own expert examine the alleged victim. In this case, however, defendant failed to make a preliminary showing to the judge that the examinations would be probative and were necessary, and thus we overrule this assignment of error.’’ (Emphases added and emphasis omitted.) Hewett, 93 N.C. App. at 9, 376 S.E.2d at 472.
As the highlighted text in the foregoing discussion demonstrates, the Hewett court applied a form of the compelling need test to balance the interests of the alleged victims and the defendant’s right to due process.
In State ex rel. Wade v. Stephens, 724 S.W2d 141, 144 (Tex. Ct. App. 1987), the Court of Appeals of Texas, Fifth District, observed that article 39.14 of the Texas Code of Criminal Procedure (Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon 1979)) is a comprehensive pretrial discovery statute which only allows discovery of tangible objects that are not privileged. The appellate court held that article 39.14 defines and limits the authority of a trial court to order discovery. Consequently, the appellate court required the trial court to set aside its order requiring the victim to submit to a physical examination. In State ex rel. Holmes v. Lanford, 764 S.W2d 593 (Tex. Ct. App. 1989), the Court of Appeals of Texas, Fourteenth District, agreed with the result of the Stephens decision, but not its reasoning. In holding that a trial court has no inherent authority to order the victim in a criminal case to undergo a psychological examination, the Lanford court recognized that “circumstances may arise under which a trial court could properly order discovery beyond that outlined in article 39.14.” Lanford, 764 S.W2d at 594. The Lanford court’s holding does not necessarily deprive the trial court of jurisdiction to order an examination. The Stephens decision, on the other hand, is based on the court’s construction of relevant Texas statutory authority.
Returning to the case at bar, I note there are unintended results attached to the majority’s holding. First, the holding needlessly hampers the State in its prosecution of crimes involving sexual offenses. Under the compelling need test, the defendant must show a compelling reason for the proposed examination. If the defendant meets this rather high burden, the trial court, in its discretion, orders the physical examination. If the alleged victim does not submit to the examination, the court considers what, if any, State evidence to exclude at trial. With the elimination of the compelling need test, the trial court automatically proceeds to a determination of what State evidence must be disallowed. See 207 Ill. 2d at 467. Moreover, the trial court must arrive at its determination without the detailed guidance offered by the compelling need factors.
Second, the alleged victim must decide to comply or not comply with the request for the examination without a prior determination that the defendant has shown a compelling need for the examination. Upon receipt of a request for a physical examination, the prosecuting attorney must approach the victim to determine whether the victim is willing to undergo the examination. Fully cognizant that the use of State expert testimony will be compromised if the victim does not agree with the defendant’s request, the prosecuting attorney may be tempted to apply pressure on the victim to comply with the request. Even if external pressures are not applied on the victim, the victim may yet feel the need to comply with the request in order to safeguard the prosecution’s case. In contrast, in the majority of sister jurisdictions, any pressure to comply with the defendant’s request for an independent examination would not come into play until the trial court had determined that the defendant had made a showing of a compelling need for the examination.
CONCLUSION
The need to protect the alleged victim in this case is only more compelling because of her tender age. Recognizing this, however, the alleged victim, and other victims of sexual offenses, will receive necessary protection through the judicious use of the compelling need test. This court need only invoke the test, provide guidance to the lower courts by adopting the factors noted above, and rest confident in the trial courts’ proper exercise of discretion. A physical examination should not be granted lightly. The majority chooses a different path, preferring to deny the trial courts jurisdiction to order an independent physical examination by a defense expert. While well intentioned, the majority’s holding is misguided. The accused, the victim, and the prosecution are the losers.
CHIEF JUSTICE McMORROW joins in this special concurrence.