No. 96-1871 | Ohio | Mar 18, 1998
Lead Opinion
An expert witness’s testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence. Therefore, the trial court did not abuse its discretion by admitting Dr. Tener’s testimony.
According to the appellate court’s formulation of the issue certified to this court, if the expert testimony at issue is inadmissible, it is because it “impermissibly conveys to the jury the expert’s belief the child was actually abused.” It is permissible, however, for an expert to convey this belief to the jury. Evid.R. 704 provides that opinion evidence is not objectionable solely because it embraces an ultimate issue of fact. We have applied this rule to expert testimony in child sexual abuse cases: “In Boston, this court determined that expert testimony on the ultimate issue of whether sexual abuse has occurred in a particular case is helpful to jurors and is therefore- admissible pursuant to Evid.R. 702 and 704.” State v. Gersin (1996), 76 Ohio St. 3d 491" court="Ohio" date_filed="1996-08-28" href="https://app.midpage.ai/document/state-v-gersin-6774529?utm_source=webapp" opinion_id="6774529">76 Ohio St.3d 491, 494, 668 N.E.2d 486, 488, citing State v. Boston (1989), 46 Ohio St. 3d 108" court="Ohio" date_filed="1989-10-25" href="https://app.midpage.ai/document/state-v-boston-6762047?utm_source=webapp" opinion_id="6762047">46 Ohio St.3d 108, 545 N.E.2d 1220.
Despite Boston, Stowers argues that Dr. Tener should not have testified as an expert about the behavior of child sexual abuse victims because there is no child sexual abuse syndrome officially recognized by the psychiatric profession and therefore her testimony lacked a scientific basis. Dr. Tener’s testimony, however, qualifies under Evid.R. 702(B) based upon her “specialized knowledge, * * * experience, training, [and] education regarding the subject matter * * According to Evid.R. 702(C), her testimony must be based on “reliable * * * specialized information” to be admitted, but because her testimony did not involve scientific or technical testing or procedures, the further requirements of Evid.R. 702(C)(1) to (3) are not at issue, notwithstanding Stowers’s argument to the contrary.
Through her psychological training and professional experience, Dr. Tener gained specialized knowledge that the average person lacks about behavioral characteristics of child abuse victims. “Most jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse. Incest is prohibited in all or almost all cultures and the common experience of a juror may represent a less-than-adequate foundation for assessing whether a child has been sexually abused.” Boston at 128, 545 N.E.2d 1220" court="Ohio" date_filed="1989-10-25" href="https://app.midpage.ai/document/state-v-boston-6762047?utm_source=webapp" opinion_id="6762047">545 N.E.2d at 1239.
Stowers next argues that testimony by Dr. Tener linking the behavior of the Stowers children with behavior of other sexually abused children implied that she believed the children’s testimony and her testimony thus served to bolster the children’s credibility in violation of the Boston holding. This argument is similar to the one accepted by the court of appeals in one of the cases cited in conflict, State v. Givens (Nov. 9, 1992), Warren App. No. CA92-02-015, unreported, 1992 WL 329453.
Boston’s syllabus excludes expert testimony offering an opinion as to the truth of a child’s statements (e.g., the child does or does not appear to be fantasizing or to have been programmed, or is or is not truthful in accusing a particular person).
Therefore, Dr. Tener’s testimony did not violate Boston, though it included an explanation that behaviors like recantation of accusations and delayed disclosure of incidents of sexual abuse are seen in children that have been sexually abused. She testified that even though the children changed their stories, her assessment that they had been abused did not change. Such testimony is permitted to counterbalance the trier of fact’s natural tendency to assess recantation and delayed disclosure as weighing against the believability and truthfulness of the witness. This testimony “does not usurp the role of the jury, but rather gives information to a jury which helps it make an educated determination.” Gersin at 494, 668 N.E.2d 486" court="Ohio" date_filed="1996-08-28" href="https://app.midpage.ai/document/state-v-gersin-6774529?utm_source=webapp" opinion_id="6774529">668 N.E.2d at 488.
Stowers further argues that even if Boston and the Rules of Evidence generally allow expert testimony about the behavior of sexually abused children, the interviews were so suggestive that they contaminated the children’s later statements, and that Dr. Tener’s testimony was based on belief in the children’s tainted statements and therefore her testimony should have been excluded. This issue is beyond the scope of the certified question. Nevertheless, our discussion has answered Stowers’s argument by clarifying that the basis of Dr. Tener’s testimony was not her belief in the children’s statements but rather conclusions drawn from her observations of the children’s behavior.
Thus, the trial court did not abuse its discretion by admitting Dr. Tener’s testimony as to the consistency of the Stowers children’s behavior with general behavioral characteristics observed in sexually abused children. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
. Evid.R. 702 has been amended since Boston was decided, but the amendment “reflect[s] the Ohio Supreme Court’s interpretation of the rule’s pre-amendment language” and “no substantive change from prior law is intended.” Staff. Note (July 1, 1994 Amendment). Also, Evid.R. 102 provides that the Rules of Evidence “shall be construed to state the principles of the common law of Ohio unless the rule clearly indicates that a change is intended.”
. In State v. Yarber (1995), 102 Ohio App. 3d 185" court="Ohio Ct. App." date_filed="1995-03-27" href="https://app.midpage.ai/document/state-v-yarber-3701757?utm_source=webapp" opinion_id="3701757">102 Ohio App.3d 185, 656 N.E.2d 1322, the other case cited as in conflict, the expert witness “never testified or inferred [sic] that [the alleged vietimfs behavior was consistent with victims of sexual abuse.” Id. Thus, its holding is unrelated to the issue in this case.
Dissenting Opinion
dissenting. I respectfully dissent from the majority’s holding that “[a]n expert witness’s testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence.” This holding is not only imprecise, but is also incorrect. The majority, when addressing Evid.R. 702, contends that the “further requirements of Evid.R. 702(C)(1) to (3) are not at issue,” since Dr. Tener’s testimony did not involve scientific or technical testing
Not all experts in the field of child sexual abuse agree on standard characteristic indicators of sexual abuse victims. In fact, some experts have specifically refuted the claim that there are reliable “indicators” of child sexual abuse. As Richard A. Gardner, M.D., Clinical Professor of Child Psychiatry at Columbia University, states:
“The fact that DSM-III-R [Diagnostic and Statistical Manual of the American Psychiatric Association] does not recognize [the sex abuse] syndrome and the fact that it is the only syndrome in the history of psychiatry that includes all psychological symptoms and behavioral manifestations — both normal and abnormal — does not deter these evaluators from resorting to this meaningless statement.” (Emphasis sic.) Gardner, True and False Accusations of Child Sex Abuse (1992) 294.
Because of the multitude of symptoms and indicators, great caution should be used when allowing expert testimony, since jurors look to scientific experts to provide reliable evidence of guilt or innocence. In this case, Dr. Tener, who had extensive experience with child-sex-abuse victims, specifically testified:
“And with Mary Sue I felt that she had much anger, much anxiety, much feelings of guilt[.] * * *
“ * * * [M]any children show guilty feelings, a sense of responsibility for what took place. Mary Sue showed all of the above and I’ve testified repeatedly about how guilty she felt and wanted me to know that it was not her fault, that she didn’t know what was going on till she was older, etcetera. These kinds of reactions are associated with events that you find that people label as wrong, sexual abuse being one of those kind[s] of events. And I found Mary Sue’s reactions to be quite consistent with other children who are in the same kind of predicament of having made a statement about sexual abuse and realizing the ramifications of those statements.”
While it might be expedient to permit experts to solve sexual abuse cases, the most reliable evidence still comes from the child victim. Judges and jurors are the best fact-finders as to the credibility of witnesses in determining guilt or innocence. Until a sufficient database can be established to support so-called child-sexual-abuse indicators, expert testimony concerning standard indicators
Dr. Tener testified that anger, anxiety, feelings of guilt, and a sense of responsibility for what took place are standard indicators of child sexual abuse. However, it should be noted that these are not the only such indicators. Experts have cited numerous other indicators or symptoms of child sexual abuse. This diversity of indicators underscores the state of flux that exists in profiling the so-called standard indicators of child sexual abuse.
In a manual for therapists the following common symptoms of child-sexual-abuse victims are listed:
“Sudden behavioral changes—shyness, regression, withdrawal, aggression, hyperactivity, secretiveness, clinging behavior.
“Fears — of the dark, of being alone, of certain people.
“Sleep difficulties—inability to sleep, nightmares, night terrors.
“Eating problems—change in eating patterns, loss of appetite.
“Sexual acting out—touching others, excessive masturbating, inserting objects into genitals/rectum, drawing nude figures/explicit genitals, re-enacting sexual acts with toys.
“Soiling/bedwetting (encopresis/enuresis)
“Mature sexual language/preoecupation with sexual language.
“Age-inappropriate behavior—thumb-sucking in older children, sexual precocity in younger children.
“Avoidance of specific activities—of sports, showers, school attendance.
“Somatic problems—headaches, digestive problems.”
Mayer, Child Sexual Abuse and the Courts (1990) 65.
Additionally, the manual goes on to list the emotional reactions of child-sexual-abuse victims:
embarrassment, ambivalence, distrust, fear, guilt, confusion, depression, hurt, avoidance, anger, and powerlessness. Id. at 66-67.
From the foregoing, it can readily be seen that sexually abused children exhibit numerous and diverse emotions and reactions. These are the same emotions and reactions that many nonabused children exhibit.
The symptoms or indicators of child sexual abuse to which Dr. Tener testified, anger, anxiety, and feelings of guilt, could just as likely arise from other causes and are not unique to sexual-abuse victims. The judicial system should not rush to admit such testimony. Rather, we should admit expert testimony only when it
For the foregoing reasons, I would reverse the judgment of the court of appeals.