626.1Child Sexual Assault Exam
Key Concepts
- A qualified expert witness (e.g., nurse, doctor, psychologist, counselor, or social worker) may testify regarding the results of an examination, interview, or treatment of an alleged child victim, and give an opinion as to what those results indicate.
- A qualified expert witness may also testify about behaviors or characteristics of a child that are “consistent with” the profile of a victim of sexual abuse, and the witness may explain related issues such as delayed reporting or conflicting narratives.
- A witness may only opine that the alleged abuse “did happen” if there is sufficient physical evidence of abuse. A witness may not state his or her opinion that abuse occurred if that opinion is based solely on the child’s report.
Note: This entry only addresses expert testimony based on examinations of children for alleged sexual assault or similar abuse. For a broader discussion about the various other evidentiary issues which may arise in child victim cases (e.g., competency, remote testimony, unavailability, or identifying the perpetrator), see "Evidence Issues in Criminal Cases Involving Child Victims and Child Witnesses,” Jessica Smith, Administration of Justice Bulletin, December 2008.
Overview and Admissibility
When a child is alleged to be the victim of a sexual assault or other type of abuse, the child may be examined by a “SANE” nurse (Sexual Assault Nurse Examiner) or another medical professional. Subject to the limitations and conditions discussed below, a properly qualified expert witness is permitted to testify about the results of that examination, and express an opinion on whether the sexual assault did occur (or could have occurred) as the child described. A qualified witness may also express an opinion about related issues, such as why a child might delay disclosing the abuse. The admissibility of this type of testimony has been affirmed by cases decided both before and after the 2011 amendments to Rule 702 adopting the Daubert standard. See generally State v. Davis, 368 N.C. 794 (2016); State v. Hammett, 361 N.C. 92 (2006); State v. Fuller, 166 N.C. App. 548 (2004); State v. Hinnant, 351 N.C. 277 (2000).
If another properly qualified witness such as a therapist, counselor, or social worker interviews the child, then he or she should likewise be allowed give expert testimony regarding his or her opinions, but only within the scope of his or her field and to the extent that the opinion is supported by the facts of the case. See, e.g., State v. Shore, 258 N.C. App. 660 (2018), on remand from 370 N.C. 568 (2018) (finding that social worker was permitted to testify as an expert regarding reasons for delayed disclosure); State v. Ware, 188 N.C. App. 790 (2008) (licensed social worker permitted to give expert testimony about “characteristics” of abused children and reasons for delayed reporting); but see State v. Black, 223 N.C. App. 137 (2012) (licensed social worker permitted to testify as an expert, but it was error to allow her to give an opinion that the abuse “did” happen without a sufficient basis of physical evidence); State v. Grover, 142 N.C. App. 411 (2001) (clinical social worker allowed to testify as an expert based on her examination and observation, but opinion that abuse “did occur” was improper in the absence of any physical evidence).
Unavailability of victim?
Sometimes a child is willing to talk to a doctor or counselor at the time of the initial examination, but then is unwilling (or unable) to testify at trial. In some circumstances, the prosecutor may be able to use the child’s prior, out-of-court statement about the abuse at trial (for example, by offering it under a hearsay exception as a statement made for the purpose of medical diagnosis). For more helpful suggestions on how to approach this issue, see the following:
i) “Evidence Issues in Criminal Cases Involving Child Victims and Child Witnesses,” Jessica Smith, Administration of Justice Bulletin, December 2008;
ii) “Are a Child’s Statements to a Treating Psychologist Admissible Under Hinnant,” Jessica Smith, North Carolina Criminal Law Blog, March 20, 2013; and
iii) See also the related expert witness entries in this guide on Confrontation/Crawford and Daubert/Basis of Expert’s Opinion.
Limitations on Scope of Expert Opinion
Testimony That Abuse “Did Occur”
A qualified expert witness who examined the child may be permitted to state his or her opinion that the alleged sexual abuse “actually occurred,” but only if that opinion is based on a proper foundation that there was sufficient physical evidence to support the opinion. See State v. Hammett, 361 N.C. 92 (2006) (expert allowed to express conclusion that abuse did occur based on physical findings including a notch and scar on victim’s genitals, and testifying that penetrating trauma was one of the only things which could cause those injuries); State v. Fuller, 166 N.C. App. 548 (2004) (SANE nurse and doctor were properly permitted to testify that the physical findings concerning the victim were consistent with vaginal penetration and someone kissing the child’s breast); State v. Goforth, 170 N.C. App. 584 (2005) (expert allowed to testify that victims were “repeatedly sexually abused” based on notches, scars, and “strong physical evidence of abuse”); State v. Sheperd, 156 N.C. App. 69 (2003) (opinion that abuse happened was proper where expert acknowledged that the primary factors supporting that opinion were the victim’s medical history, interviews, and recent behavioral changes, but medical exam also showed tissue damage which could have been caused by attempted sexual abuse); State v. Youngs, 141 N.C. App. 220 (2000) (child psychologist properly testified that child had been abused based on her extensive treatment of victim – at least 45 times – and medical reports from another doctor finding irregularities in child’s hymen).
Conversely, when there is no physical evidence to support the conclusion, the witness may not testify that the abuse “did occur.” Such testimony would amount to opining that the witness found the victim’s statements to be credible—a matter that the jurors are equally capable of deciding for themselves. See State v. Casey, 263 N.C. App. 510 (2019) (error for state's expert to opine that abuse did occur when there was no phyiscal evidence of abuse); State v. Stancil, 355 N.C. 266 (2002) (opinion improper when there was no evidence of abuse); State v. Trent, 320 N.C. 610 (1987) (opinion improper where exam conducted four years after alleged abuse only showed that victim had been sexually active, but did not support a diagnosis of abuse); State v. Delsanto, 172 N.C. App. 42 (2005) (absent physical evidence, expert testimony that abuse did occur was impermissible opinion evidence regarding credibility of victim).
Testimony About Behaviors or Findings “Consistent with Abuse”
Even when there is no physical evidence to corroborate the alleged abuse, an expert witness may still be permitted to testify about the victim’s behaviors or characteristics which are “consistent with” the profile for sexually abused children. The witness may also explain related issues such as delayed reporting, changing narratives, or the absence of physical evidence – as long as the witness stops short of explicitly stating that he or she “believes” the victim and therefore concludes that the abuse “did occur.” See, e.g., State v. Wallace, 179 N.C. App. 710 (2006), appeal dismissed and review denied, 361 N.C. 436 (2007) (clinical psychologist allowed to give expert opinion that the victim’s behavior, sense of trust, and emotional problems were “consistent with” behaviors of other sexually abused children - the expert did not state that sexual abuse “did occur,” or give an opinion as to the victim’s credibility); State v. Ware, 188 N.C. App. 790 (2008) (trial court did not err in allowing a clinical social worker expert to testify “that it was common for children who have been abused by a parental figure to ‘have a dilemma’ about reporting the abuse”); State v. Wade, 155 N.C. App. 1 (2002) (expert testified that the victim exhibited “all” of the characteristics exhibited by other children who were, in fact, sexually abused – appellate court said this was coming “precariously close” to expressing an opinion that the victim was likewise abused, but nevertheless determined that the trial court did not err in allowing the testimony); see also State v. Davis, 368 N.C. 794 (2016) (experts permitted to testify about general characteristics of abused children and delayed reporting by drawing inferences and giving opinions based on other children who were sexually abused – court found this to be permissible expert testimony, but held that it should have been disclosed in discovery).
