Experts in Child Sex Cases: Reversible Error in a Recent Case

The recent case, State v. Ryan, presents an issue that keeps our appellate courts busy: the proper scope of expert testimony in child sexual abuse cases. In Ryan, after the child victim reported that the defendant had sexually abused her some two years earlier, she was seen by Dr. Gutman, a pediatrician specializing in child maltreatment and sexual abuse. Following an interview, Gutman performed a physical exam on the child. She observed a deep notch in the child’s hymen but found the child’s anus to be normal. Tests for sexually transmitted diseases revealed the presence of bacterial vaginosis.

The defendant was charged with rape, sexual offense, and taking indecent liberties. At trial, Gutman testified that the child had been sexually abused, that she had no indication the child’s story was fictitious or that the child had been coached, and that defendant was the perpetrator. The defendant was found guilty and appealed, asserting that Gutman’s testimony was inadmissible.

Conclusions of Sexual Abuse

At trial Gutman testified that based upon her training, education, and experience, and her examination of the child, the history given by the child and her physical findings “were consistent with sexual abuse[.]” In her written report, however, she concluded that the child had been “sexually assaulted.” Evaluating this testimony, the court repeated what’s long been the law in North Carolina: An expert may testify that sexual abuse has in fact occurred only if that opinion is based on physical evidence consistent with sexual abuse. However, in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is an impermissible opinion regarding the victim’s credibility. Applying these rules, the court concluded:

In both her testimony and . . . report, Dr. Gutman did not state which acts of alleged sexual abuse she concluded had occurred . . . . Had Dr. Gutman testified as to her specific conclusion that the child had been the victim of both vaginal and anal sexual abuse, we would hold the admission of such testimony to be error, as the State presented no physical evidence of anal sexual abuse . . . . However, Dr. Gutman did not give an opinion as to which specific assault she concluded had occurred. Rather, Dr. Gutman stated only her conclusions that the child’s history and physical findings were “consistent with sexual abuse” and that based on her medical evaluation of the child, the child had been “sexually assaulted.” Because the State introduced a proper foundation of physical evidence – the unusual deep hymenal notch and the presence of the child’s vaginosis – prior to Dr. Gutman’s stating her conclusion of sexual abuse, we cannot conclude it was error for Dr. Gutman to testify as to her general conclusions.

No Concerns About a “Fictitious Story”

The defendant’s assertion that it was improper for Gutman to testify that the child’s story was not fictitious centered on Gutman’s testimony on redirect. Gutman was asked whether anything about her examination of the child raised concerns for her that the child was not being truthful or that her story was fictitious. She responded: “Nothing. There was nothing about the evaluation which led me to have those concerns. And again, as I was getting into her history and considering this as a possibility, nothing came out.”

Citing longstanding rules, the court noted that an expert may not testify that a victim is believable, credible, or telling the truth. Applying these rules, the court held that Gutman’s testimony was “tantamount to her opinion that the child was not lying about the sexual abuse” and thus was inadmissible. The court rejected the argument that the defendant opened the door to this testimony by asserting that the child was coached into making the sexual abuse allegations.

No Coaching

Gutman testified regarding indications that a child has been “coached” and that, based upon her examination of the child in this case, there were no indications that she “had been coached in any way[.]” Citing State v. Baymon, 336 N.C. 748, 752 (1994) for the proposition that a statement that a child was not coached is distinguishable from a statement on the child’s truthfulness, the court found this testimony to be admissible.

Defendant as Perpetrator

At trial, Gutman concluded that based on her interview with the child, “there was no evidence that there was a different perpetrator” other than defendant. The court cited State v. Brigman, 178 N.C. App. 78, 85-86 (2006) (pediatrician’s testimony that victims had “suffered sexual abuse by [defendant]” was improper opinion testimony on credibility) and State v. Figured, 116 N.C. App. 1, 8-9 (1994) (expert’s opinion that “children were sexually abused by this defendant” was improper), and found “no discernible difference” between Gutman’s testimony and the testimony in those cases. It held that her testimony about the perpetrator was improper opinion testimony regarding the child’s credibility.

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The court went on to conclude that Dr. Gutman’s inadmissible testimony that the child’s story was not fictitious and that the defendant was the perpetrator was plain error and warranted a new trial.

I find the most interesting aspect of this case to be the holding regarding Gutman’s opinion that the child had been sexually abused. While the child’s statements indicated that both vaginal and anal sexual abuse occurred, Gutman found physical evidence only as to vaginal penetration. Nevertheless, her report stated that the child had been sexually assaulted, without specifying anal or vaginal abuse. Noting that an expert opinion that anal abuse had occurred would have been improper, the court found Gutman’s “general conclusion” permissible, given the physical evidence supporting the allegation of vaginal sex. I wonder however what impact this “general” opinion had on the jury. Interestingly, the jury came back not guilty on rape but guilty on sexual offense. We’ll never know what weight the jury gave to Gutman’s opinion, but I can’t help but wonder whether the jurors took it to mean that anal sex occurred. What do you think?

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