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November 19, 2011 permalink

A court in New York has found it unconstitutional to order a vaginal examination of a foster girl two years after she was raped. Good protection for the girl, but it is only in rare cases that lawyers intervene on behalf of a foster child. For the others, it remains business as usual.

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Child sex-abuse victim exam was unconstitutional: appeals court

11/18/2011

NEW YORK, Nov 18 (Reuters) - A family-court order directing a teenage girl to undergo a forensic medical examination for additional proof of sexual abuse violated the girl's constitutional protection against unreasonable search, a New York appeals court has ruled.

In a unanimous opinion published Thursday, the Appellate Division, Second Department, found that a family court already had "conclusive evidence of abuse" when it ordered the victim, identified as Shernise C., to submit to a medical exam two years after the alleged assault took place.

Given the evidence, the need for her to submit to a "highly intrusive physical examination is so diminished as to render the search unreasonable under the Fourth Amendment," wrote Justice Jeffrey Cohen.

Under the Family Court Act, victims of alleged abuse must undergo a forensic medical examination. While the court left the statute intact, it found that it was unconstitutional when applied in Shernise's case, applying its own balancing test to determine when the state's need to gather evidence conflicted with the victim's right to be protected against intrusive searches.

"An innocent child should certainly have as much right to be free from unreasonable search and seizure as someone suspected of committing a crime," Cohen wrote.

"Thus while harmonizing the state's extraordinary interest in protecting a child's welfare from the potential for the invasion of a child's constitutional rights may be at times difficult, a proper balance must be struck since even the most heinous crime of child sexual abuse does not automatically provide cause to ignore the rights of the victim."

'EXTREME INVASION'

According to the court record, Shernise C. was just shy of her 14th birthday in 2008 when she gave birth to a daughter. In 2010, a DNA test established with 99.97 percent certainty that her stepfather had fathered the child.

Shernise, her sister and daughter were placed into protective custody by the Administration for Children's Services. ACS then filed petitions in family court against Shernise's stepfather and mother accusing them of abuse, according to court filings.

On August 24, 2010, the family court directed ACS to arrange for Shernise to undergo an exam to look for any visible areas of trauma. But Shernise's attorney argued that the examination was an "extreme invasion of Shernise's Fourth Amendment rights," given the "likelihood of trauma" and "absence of a compelling need for additional evidence of intercourse," the court ruling stated.

Three days later, the family court stayed enforcement of the order, and the stay remained in effect while attorneys from Legal Aid's Juvenile Rights Practice appealed the court order.

Judith Waksberg, director of the appeals unit of the Juvenile Rights Practice, said in an email statement that the ruling "reaffirms the notion that all children -- including those who are alleged to be abused or neglected -- are entitled to the protections of the Fourth Amendment."

"Even when its mandate is to protect the child, a court must always ensure that the action taken to protect the child comports with the Fourth Amendment and respects the child's bodily integrity," Waksberg said.

Sharyn Rootenberg, assistant corporation counsel in the appeals division of the New York City Law Department, said the city was "pleased that the appellate division left the statute intact, since its primary purpose is to protect children by uncovering and preserving evidence of possible abuse."

The case is In the Matter of Shernise C. et al, in the Supreme Court of the State of New York, Appellate Division: Second Judicial Department, index no. 2645/10.

For Legal Aid: Tamara Steckler and Claire Merkine.

For ACS: Larry Sonnenshein and Sharyn Rootenberg of the New York City Law Department; Nancy Thomson of the ACS.

(Reporting by Jessica Dye) Follow us on Twitter @ReutersLegal

Source: Thomson Reuters