State v. BrewsterState v. Brewster
Defendant Guy Storm Brewster was charged with five counts of lewd and lascivious assault on a child under the age of sixteen and seven counts of engaging in sexual activity with a child of twelve years or older but less than eighteen years, while in a position of familial or custodial authority. The victim was a fifteen year old boy. Pursuant to
The state seeks a writ of certiorari to quash the order, arguing it constitutes a departure from the essential requirements of law causing irreparable harm. We grant the petition and quash the trial court‘s order.
In State v. Smith, 260 So.2d 489 (Fla. 1972) the Florida Supreme Court considered whether an eyewitness could be compelled to submit to a visual acuity test. The court emphasized that:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of an individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. [Cite omitted]. The common law does not authorize a court to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law.
Id. at 491. In addition, the court in State v. Smith found that nothing in the criminal rules of procedure authorized a trial court to grant a motion compelling a witness to submit to a physical examination “of any sort.” The court went on to state that even if in rare instances justice may require a physical examination of a witness, more must be shown than the opposing party‘s dependence on evidence, such as an eye witness‘s identification.
State v. Smith was decided prior to the 1980 addition of a constitutional amendment independently protecting the right of privacy.
In Dinkens v. State, 244 So.2d 148 (Fla. 4th DCA 1971), also decided prior to the addition of the constitutional amendment protecting the right of privacy, the court considered whether a victim of a sexual battery could be compelled to submit to a psychiatric examination. The court stated that “it strikes us as sound, in the absence of either express statutory authority or court rule permitting such, or in the absence of such strong and compelling evidence of mental or emotional instability of the prosecutrix that denial of a psychiatric examination could amount to a denial of due process of law, that the court should not subject the prosecutrix to such an examination.” Id. at 150. The court in Dinkens did not reject the concept of a court possessing an inherent power to require an examination “under the most compelling of circumstances where it is necessary to insure a just and orderly disposition of the case,” but held that such a practice should be discouraged in the absence of any showing that an examination was essential to prevent a manifest miscarriage of justice. See also State v. LeBlanc, 558 So.2d 507 (Fla. 3d DCA 1990) (court refused to compel psychiatric exam of three child victims, finding there were alternative discovery tools available, the detriment to the children outweighed the speculative benefit and denial did not rise to a due process violation in the absence of strong and compelling evidence of the victims’ mental instability); State v. Coe, 521 So.2d 373 (Fla. 2d DCA 1988) (in absence of evidence the victim had experienced psychiatric problems, court refused to compel psychiatric examination of victim). Compare
In State v. Farr, 558 So.2d 437 (Fla. 4th DCA 1990) the court refused to compel a second gynecological examination of an eight year old sexual battery victim, noting that there were no extreme or compelling circumstances alleged which would result in a manifest injustice if the second examination was denied. See also State v. Drab, 546 So.2d 54 (Fla. 4th DCA), rev. denied, 553 So.2d 1164 (Fla. 1989) (need for second gynecological exam of eight year old victim not demonstrated by extreme and compelling circumstances); State v. Diamond, 553 So.2d 1185 (Fla. 1st DCA 1988) (order estopping state from prosecuting accused child abuser unless victim‘s parents agreed to second physical exam quashed as clear departure from essential requirements of law).
In 1988, the Florida Legislature passed an act relating to the acquired immune deficiency syndrome (AIDS), establishing programs and requirements relating to the disease which are intended to balance medical necessity, the right to privacy and the protection of the public.
No evidence, scientific or otherwise, was presented by respondent in support of his motion to compel the victim in this case to submit to an HIV test, nor was a compelling need for the information established due to the absence of evidence of the probative value of the test results under the factual circumstances. Even if the victim has the HIV infection, it could have been contracted in the two years since the charged offenses occurred and a positive test result would not mean that respondent could not be guilty. In addition, there is the possibility of a false negative which occurs in 1% of the tests, or a false positive which is a possibility because some standard HIV tests are deliberately made to be overly sensitive.2 Finally, no evidence was presented that the existence of a lengthy period of sexual abuse guarantees transmission of the disease between abuser and abused.
In the absence of any statutory or rule authority for compelling the victim to submit to any type of test or examination, and the lack of any evidence whatsoever to support a compelling need for such an intrusion, the victim‘s right to privacy from any governmental intrusion far outweighs the respondent‘s conclusory claim of need for the information sought. Accordingly, the trial court departed from the essential requirements of law in compelling the victim to submit to a blood test and the trial court‘s order is quashed.
PETITION GRANTED AND ORDER QUASHED.
HARRIS and PETERSON, JJ., concur.