I respectfully dissent because I believe that the special rule adopted by the majority — giving trial judges the discretionary authority to order child victims in sexual abuse cases to undergo psychological evaluations — undermines existing trial procedures used to evaluate witness credibility and contravenes the recent statewide movement to protect the rights of the sexually abused. Therefore, I believe that under no circumstances should a trial judge have the authority to order child victims of sexual abuse to undergo psychological evaluations. Accordingly, I would reverse the portion of the court of appeals’ decision holding that the family court judge abused his discretion in failing to order the child victim to submit to a psychological evaluation.
Of the various tests applied around the country to determine whether it is within the trial judge’s discretion to order child victims to submit to a psychological examination in sexual abuse cases, the majority has chosen to adopt the factors used by the West Virginia Supreme Court in State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903 (1992). These factors, as follow, are intended to guide the trial judge in determining whether to order a psychological examination:
(1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim’s age; (3) the resulting physical and/or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant’s use.
Delaney, 417 S.E.2d at 907.
I do not support the adoption of these factors; rather, I agree with North Carolina Supreme Court’s analysis in State v. Horn, which led to the conclusion that “a trial judge does *555not have the authority to order a victim to submit to psychological examination, even when the victim’s mental status is an element of the crime charged.” 337 N.C. 449, 446 S.E.2d 52, 54 (1994). In Horn, the court considered many of the same factors as the Delaney court but reasoned that “ ‘the possible benefits to an innocent defendant, flowing from such a court ordered examination of the witness, are outweighed by the resulting invasion of the witness’ right to privacy and the danger to the public interest from discouraging victims of crime to report such offenses.’ ” Id. at 53 (quoting State v. Looney, 294 N.C. 1, 240 S.E.2d 612, 627 (1978)) (emphasis added).9 On balance, the court found that “ ‘zealous concern for the accused is not justification for a grueling and harassing trial of the victim.’ ” Id.
I agree with the North Carolina court and find support for my view in practical and policy considerations. First, the invasion into an individual victim’s privacy by such an examination and the danger that such a practice would discourage already hesitant victims from reporting sex crimes, adequately support, in my view, a decision forbidding trial judges from having the authority to order psychological examinations in these cases.
Second, the trial process already contemplates the challenges associated with witness credibility and overall fairness, and both trial judges and attorneys already have several alternatives at their disposal to ensure that defendants receive a fair trial. Most importantly, perhaps, is the trial judge’s power to admit or deny the admission of evidence already gathered concerning the witness’s mental health status. Or as a last resort, the trial judge may dismiss the case if the defendant’s right to a fair trial has been imperiled.
Third, a defendant’s right to a fair trial is sufficiently protected through the right to cross-examine both the testifying victim and all other witnesses presented by the State. A *556well-prepared cross-examination has the potential to thoroughly undermine a witness’s credibility. Alternatively, the defense may call other witnesses to attack the victim’s credibility. Finally, the defense may present its own expert witnesses to rebut evidence concerning the victim’s mental health status.
Fourth, as a practical matter, the majority’s decision has the unanticipated consequence of creating a “trial within a trial.” In other words, if a judge determines — after weighing the Delaney factors as advocated by the majority — that an examination should be ordered, the “primary trial,” the trial against the alleged abuser, is effectively put on hold while the “secondary trial,” the examination of the victim to ascertain the victim’s mental status, is conducted. In this “secondary trial,” victims assume the role of the accused in the primary case. This additional process turns our notion of the adversarial process on its head by temporarily relieving the State of its constitutional burden of proof — to prove the defendant guilty beyond a reasonable doubt — and creating, instead, a hearing on the victim’s mental capacity.
Fifth, the General Assembly and people of South Carolina have actively sought, in recent years, to protect the rights of victims, particularly victims of sexual assault. See Victims’ Bill of Rights, S.C. Const, art. I, § 24 (providing that victims have the right to be free from intimidation, harassment, or abuse throughout the criminal and juvenile justice process); S.C.Code Ann. § 16-3-657 (Supp.2002) (providing that the testimony of a victim in a criminal sexual conduct prosecution need not be corroborated); S.C.Code Ann. § 16-3-659.1 (Supp.2002) (barring evidence of victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct in prosecutions for criminal sexual conduct under most circumstances). Each of these provisions illustrates the concerted movement toward protection of the victim in criminal sexual conduct cases. I believe that the majority’s decision undermines these efforts and the intentions supporting these policy decisions.
Sixth, the adoption of the Delaney factors represents a radical change in the criminal trial procedure in this state. Evaluating witness credibility is an important function reserved for judges and juries. Allowing judges to order victim *557evaluations in sexual abuse cases undermines the role of judges and juries and vests a great deal of power in the psychologists who perform the evaluations.
Finally, that the ordering of psychological evaluations will be a rare occurrence, as the majority posits, is of little consolation to the victims who are forced to undergo such evaluations. Moreover, I respectfully find the majority’s argument that child victims, in particular, will not be dissuaded from reporting abuse since they are too young to contemplate the hurdles ahead, unpersuasive. To the contrary, a child victim’s inability to understand the adversarial process further justifies my position on this issue, a position that I believe is consistent with the protective nature of victims’ rights legislation in South Carolina.
In conclusion, I do not support the majority’s decision giving trial judges discretion to order a criminal sexual conduct victim to submit to a psychological examination. Given that our legal system is already designed to ensure fairness for all those who enter the courtroom and that the special rule adopted today runs afoul of public policy in this state, I would REVERSE the portion of the court of appeals’ decision holding that the family court judge abused his discretion in refusing to order a psychological evaluation of the victim. I agree, however, with the majority’s decision on the appeal bond issue.
MOORE, J., concurs.. In Looney, the North Carolina court held that the trial judge has no discretionary power to require a victim to undergo psychiatric examination before being permitted to testify. To require victims to undergo such evaluations, the court reasoned, would be "a drastic invasion of the witness' own right of privacy" and "in and of itself, humiliating and potentially damaging to the reputation of the victim." 240 S.E.2d at 626.