CHARLESTON – Mercer County prosecutors want the West Virginia Supreme Court of Appeals to overturn a court order requiring a gynecological examination for a 15-year-old girl who claims her brother raped her.
Circuit Judge David Knight ordered the examination on a motion from the brother, who faces four sexual assault charges and an incest charge.
Upon conviction, he would face 70 to 160 years in prison.
Assistant prosecuting attorney Deborah Garton asked the Justices for a writ of prohibition against Knight at oral arguments on April 29.
Garton said it wasn't the result of the examination that concerned her.
"Is this child real shy?" Justice Menis Ketchum asked.
"Yes, she is very bashful," Garton replied.
Justice Margaret Workman asked if she was examined when she reported the assaults.
Garton said she reported it three years later in counseling.
Defense attorney William Flanigan of Princeton said a gynecological examination "is routinely done in sexual assault cases."
He said the girl told three doctors she wasn't assaulted and denied it to an investigator.
"There is nothing unusual about that," Ketchum said.
Workman asked what motive she had for making it up.
Flanigan said the family moved 20 times. He said the father beat the children. He said the father showed his sons how to grope a girl.
"Why isn't he prosecuted?" Workman asked.
Flanigan said he didn't know.
"This was more of a cult than a family," he said, adding that when the first son left home, the father said he would get him.
"Four months later came these charges," Garton said. "It is an unusual home."
She said the parents might not allow the examination.
Workman said they could be charged with contempt of court.
"I wouldn't take them kicking and screaming," Garton said.
The Justices took it under advisement.