Alleged incest victim must have pelvic exam, Court says

By Justin Anderson | May 14, 2009

CHARLESTON – The West Virginia Supreme Court has denied a state request to prohibit a judge from ordering a juvenile girl, an alleged victim of incest, to undergo a pelvic examination.

In a per curiam opinion filed Thursday, the court said Mercer Circuit Judge David W. Knight did not exceed his authority in ordering the alleged victim, J.W., to undergo the examination.

J.W. was 15 years old when Knight ordered the examination earlier this year.

The examination was requested by one of the two family members indicted for sexually assaulting the girl beginning in Arizona in 2003 and continuing when the family relocated to West Virginia until 2005, court records say.

Deborah K. Garton, an assistant Mercer prosecutor, had petitioned the Supreme Court for a writ of prohibition to block Knight's orders due to the girl's age and gynecological nature of the exam.

Jason and Jeffrey Wilson were indicted in 2008 on incest charges. Jason Wilson was the one who made the motion to require the examination, arguing that the allegations brought against him "could be … the result of suggestive questioning, imagination, or fabrication."

Relying on six factors set out in a 1992 opinion guiding circuit judges in ordering such examinations, the justices denied the state's petition.

According to the opinion, the factors a judge must consider are: the nature and intrusiveness of the examination; the victim's age; the resulting physical and emotional effects of the examination on the victim; the probative value of the examination in court; the remoteness in time of the examination to the alleged criminal act; and evidence a defendant already has to use.

The state had argued that the ordered examination would be intrusive and humiliating to the girl, who had never had such an examination.

However, Jason Wilson argued that the examination would be of a limited scope and performed by a female physician. Wilson further argued that the state routinely requires such examinations of alleged rape victims and that women undergo more intrusive examinations during the course of normal health care.

Knight, in his order, wrote that "the victim is 15 years of age and females of that age customarily have pelvic examinations."

Wilson also argued that clinical evidence of the psychological effects of the examinations on a person that is the same age as the victim shows there would be no long-lasting trauma.

Wilson said the examination would not be any more traumatic on the alleged victim than the state's prosecution of the case.

As to the value of the examination, the defendant contends the results would be crucial in his venture to prove the charges are baseless, according to the opinion. Wilson argues that the result of the examination is the only evidence he can obtain to help in his defense.

The trial court found in favor of Wilson based on these arguments and the justices could find no error in the decision.

William Flanigan and David B. Kelly are representing Jason Wilson.

Supreme Court case number: 34811

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