IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
STATE EX REL. J.W.,
THE HONORABLE DAVID W. KNIGHT,
SENIOR STATUS JUDGE,
CIRCUIT COURT OF MERCER COUNTY,
Petition for a Writ of Prohibition
Submitted: April 29, 2009
Filed: May 14, 2009
Deborah K. Garton, Assistant Prosecuting Attorney
Mercer County Prosecuting Attorney's Office
Princeton, West Virginia
Counsel for the Petitioner
Sanders, Austin Flanigan & Flanigan
Princeton, West Virginia
David B. Kelley
Bluefield, West Virginia
Counsel for the Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. In determining whether to entertain and issue the writ of prohibition for
cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter
of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal's
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should
be given substantial weight. Syl. Pt. 4, State ex rel. Hoover v. Berger,
199 W.Va. 12, 483
S.E.2d 12 (1996).
2. In order for a trial court to determine whether to grant a party's request for
additional physical or psychological examinations, the requesting party must present the
judge with evidence that he has a compelling need or reason for the additional examinations.
In making the determination, the judge should consider: (1) the nature of the examination
requested and the intrusiveness inherent in that examination; (2) the victim's age; (3) the
resulting physical and/or emotional effects of the examination on the victim; (4) the
probative value of the examination to the issue before the court; (5) the remoteness in time
of the examination to the alleged criminal act; and (6) the evidence already available for the
defendant's use. Syl. Pt. 3, State v. Delaney
, 187 W.Va. 212, 417 S.E.2d 903 (1992).
On behalf of Petitioner J.W., (See footnote 1)
the State seeks a writ of prohibition to prevent
the Circuit Court of Mercer County from enforcing its orders of January 27 and February
3, 2009, which require J.W., the alleged victim of multiple traumatic sexual assaults, to
undergo a pelvic examination. Based on Petitioner's age and the gynecological nature of
the examination, the State seeks to prevent the examination from transpiring. Jason Wilson,
one of the alleged perpetrators of the sexual assaults at issue (See footnote 2)
and the brother of J.W., argues
that he has demonstrated the requisite compelling need for the examination at issue. Upon
our review of the record in this case in conjunction with applicable law, we find that the trial
court did not exceed its authority in directing that Petitioner undergo a limited physical
examination. Accordingly, we find no basis for issuing the requested writ of prohibition.
I. Factual and Procedural Background
During its February 2008 term, the grand jury sitting in the Circuit Court of
Mercer County returned indictments against Jason and Jeffrey Wilson charging them with
the commission of various acts of sexual abuse against their sister, the Petitioner. Under the
facts as set forth in the indictment, the assaults began in February 2003 (See footnote 3)
when the family was
living in Arizona and continued to occur after the family relocated to West Virginia until
J.W. first reported the alleged abuse to Lawrence Richmond, a counselor who
was treating her for ADHD. Initially, she identified Jason as the only perpetrator and denied
any abuse on the part of Jeffrey. Later, when she was undergoing therapy for the sexual
abuse allegedly committed by Jason, Petitioner identified Jeffrey as an additional perpetrator
of sexual offenses against her. (See footnote 4)
Through a motion filed on January 13, 2009, Jason Wilson sought to require
Petitioner to undergo a physical examination by a medical expert selected by the trial court. (See footnote 5)
In support of his motion, Jason Wilson referred to alleged statements made by Petitioner to
various medical providers, psychologists, and investigators in which J.W. purportedly denied
that any physical penetration or intercourse had occurred between Jason and herself. Only
later when she was in therapy with Phyllis Hasty (See footnote 6)
did J.W. change her story to claim that
Jason had repeatedly had sexual intercourse with her. Through the motion, Jason Wilson
requested a discreet, confidential physical examination by a qualified medical doctor to
determine if there is any evidence of repeated traumatic intercourse. Citing Petitioner's
physical maturity and her age of fifteen years, he contends that the examination is unlikely
to cause any greater emotional upset than the State has already submitted her to through
its prosecution of this case.
According to Jason Wilson, the reversal in Petitioner's story raises the specter
that these allegations could be . . . [the] result of suggestive questioning, imagination, or
fabrication. In the interest of protecting the confidentiality of J.W., he proposed that the
results of the gynecological examination be tendered to the trial court for an in camera
review. Following that review, the trial court will evaluate whether the results are probative
on an issue to be tried and only after such a determination is made, would the results of the
examination be provided to the defense. In furtherance of his motion, Jason Wilson argued
that this type of examination is routinely performed in cases involving allegations of rape
and that it is conducted in a respectful, discreet and non-threatening manner. Finally, he
asserts that the evidence which he seeks from the physical examination is not available from
any other source.
After hearing arguments on the motion to permit a physical examination, the
trial court concluded that in light of the allegations made in this case and the victim's age,
he did not find the requirement of a pelvic exam to be intrusive. Pursuant to an order
entered on January 27, 2009, the trial court granted the motion for the examination requested
by Jason Wilson, (See footnote 7)
observing that the victim is fifteen (15) years of age and females of that
age customarily have pelvic examinations. Due to confusion over the selection of the
examining physician and identification of which party was responsible for the examination
costs, the examination was not performed. (See footnote 8)
After these issues were addressed to the trial
court, a second order was entered on February 3, 2009, which directed that Dr. Jamette
Huffman perform the subject physical examination and required the State to pay for the
exam. Through this petition for a writ of prohibition, the State seeks to prevent the
occurrence of the pelvic examination of J.W. that the trial court directed through its orders
of January 27 and February 3, 2009.
II. Standard of Review
When this court is asked to determine whether a trial court has exceeded its
authority, our review is conducted based upon the standards, now axiomatic, that we initially
set forth in syllabus point four of State ex rel. Hoover v. Berger
, 199 W.Va. 12, 483 S.E.2d
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
at 14-15, 483 S.E.2d at 14-15. Pursuant to these well-established factors, we proceed to
consider whether the trial court overstepped its authority by issuing the orders that require
J.W. to undergo a limited pelvic examination.
In syllabus point three of State v. Delaney
, 187 W.Va. 212, 417 S.E.2d 903
(1992), we announced the standards by which a trial court is required to evaluate a party's
request for either a physical or a psychological examination. Recognizing that a party's
stated need for such an examination must be balanced against the risk that the examination
may cause either physical or psychological harm to the victim, we adopted the following test
to aid trial courts when ruling on this type of motion:
In order for a trial court to determine whether to grant a
party's request for additional physical or psychological
examinations, the requesting party must present the judge with
evidence that he has a compelling need or reason for the
additional examinations. In making the determination, the
judge should consider: (1) the nature of the examination
requested and the intrusiveness inherent in that examination;
(2) the victim's age; (3) the resulting physical and/or emotional
effects of the examination on the victim; (4) the probative
value of the examination to the issue before the court; (5) the
remoteness in time of the examination to the alleged criminal
act; and (6) the evidence already available for the defendant's
Delaney, 187 W.Va. at 213, 417 S.E.2d at 904, syl. pt. 3.
Challenging the application of the six-factor test we adopted in Delaney, the
State argues that the gynecological examination ordered by the trial court is intrusive and
would be humiliating to anyone who has not experienced it. See id. As the State
acknowledged, J.W. did not testify at the pretrial hearing with regard to her specific
objections to the requested examination. (See footnote 9) Additionally, the State posits that inconsistencies
in the Petitioner's statements regarding the alleged acts of abuse should not bear on the trial
court's consideration of the need for the subject examination.
Rejecting the Petitioner's contention that he failed to demonstrate the requisite
compelling need or reason for the physical examination at issue, Jason Wilson reviewed
the six factors included in the Delaney test and how they relate to the facts of this case. See
Delaney, 187 W.Va. at 213, 417 S.E.2d at 904, syl. pt. 3, in part. With regard to factor one,
the nature of the requested examination and its inherent intrusiveness, he explained that the
gynecological examination would be performed by a female physician and would be a brief
examination, intentionally limited in scope. (See footnote 10) Seeking to dispel the State's argument that the
examination is necessarily intrusive, Jason Wilson observes that not only does the State
routinely require this type of examination in cases of alleged rape, but women in the general
population regularly undergo more extensive gynecological examinations (See footnote 11) for health
Factor two of Delaney requires a consideration of the victim's age. J.W. was
fifteen at the time of the request for the physical examination. In this case, factor three,
which requires consideration of the lasting physical and/or emotional effects of the
examination is arguably also tied to the age of the victim. (See footnote 12) Referencing clinical evidence
regarding the emotional effects of this type of examination based on the subject's age, Jason
Wilson argues that the gynecological examination should not cause her any long term
effects. Acknowledging that J.W. might experience embarrassment as the result of being
required to undergo the examination, he maintains that there is no reason to expect any long
term psychological effects stemming from the examination. (See footnote 13)
With regard to the fourth Delaney factor, which requires consideration of the
probative value of the examination, Jason Wilson argues that this evidence is crucial to his
defense. (See footnote 14) Dependent upon the results of the examination, he intends to rely on such
evidence to argue that the charges brought against him by the State are baseless. (See footnote 15) While
recognizing that he is taking a risk in requesting medical information that has the potential
to inculpate rather than exculpate him, Jason Wilson seeks to gain access to physical
evidence that will potentially assist in his defense.
The fifth Delaney factor looks to the remoteness in time of the examination
with reference to the alleged criminal act. Because the charges at issue span the time period
of February 2003 to May 2005, the examination at issue would be taking place four years
after the last alleged act of sexual abuse. Due to his fairly large stature combined with the
eight-year difference in their ages, (See footnote 16) Jason Wilson contends that evidence of the alleged
forcible, traumatic penetrations should remain despite this passage of time. The State
represents that it is prepared to introduce evidence that after a period of only six months
indicia of sexual trauma may no longer exist. (See footnote 17) As to the final Delaney factor, which looks
to the availability of evidence from other sources, Jason Wilson asserts that there is no other
evidence that he can obtain to refute the charges against him.
Upon its consideration of these arguments addressing the six factors we set
forth in Delaney, the trial court focused on both the age of the alleged victim and the fact
that women of this age customarily have pelvic examinations. While recognizing that a
pelvic examination would be intrusive to a young child, the trial court reasoned that the age
of J.W. combined with the fact that the State routinely utilizes evidence that it obtains by
comparable means from a rape kit test suggested that the requested examination would not
be intrusive under the circumstances. The trial court further recognized that Jason Wilson
was taking a gamble that the evidence he was seeking to prove his innocence may in fact
bolster the State's case.
Upon our careful review of the record in this case against the arguments of
counsel, we find that the trial court considered and applied the six factors we adopted in Delaney in ruling that the physical examination requested by Jason Wilson was warranted
under the facts of this particular case. Finding no basis for determining that the trial court
committed error in ordering that Petitioner undergo a limited physical examination, the
grounds for issuing a writ of prohibition have not been met. See Syl. Pt. 4, Hoover v.
Berger, 199 W.Va. at 14-15, 483 S.E.2d at 14-15. Accordingly, we refuse to issue the
requested writ of prohibition. The Clerk is directed to issue the mandate forthwith.
Consistent with our practice of protecting the identities of juveniles in
sensitive matters, we identify the Petitioner in this matter by initials only. See State ex rel.
Dep't of Human Servs. v. Cheryl M.
, 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1
Another brother of Petitioner, Jeffrey Wilson, has also been indicted for
committing multiple acts of sexual assault upon J.W.
The indictment charges Jason Wilson with four instances of first degree
sexual assault between February 2003 and May 2005 and one count of incest during that
same period. Jeffrey Wilson is charged with two counts of first degree sexual assault
between March 2004 and September 2005 and one count of incest during that time period.
Jeffrey has denied the allegations against him; Jason has only admitted to
committing digital penetration of his sister.
The stated purpose of the examination is to determine if there is any evidence
that Petitioner's hymen has been disturbed. Based on the alleged traumatic nature of the
assaults, Jason Wilson contends that forensic evidence of the abuse should exist if those
assaults took place. The State counters that it is prepared to put on evidence, should it be
necessary, to account for the absence of evidence of a disturbed hymen.
According to Jason Wilson, Ms. Hasty is a registered play therapist who has
been a member of the State's prosecution team for sexual molestation cases in Mercer
County for some time.
The order entered on January 27, 2009, wrongly indicated that the trial court
was granting the State's motion for the physical examination. In the subsequent order
entered on February 3, 2009, this error was corrected to accurately reflect that the Defendant,
rather than the State, had sought the examination.
In its order of January 27, 2009, the trial court directed that the examination
be performed with due speed because of the February 3, 2009, trial date.
The State apparently asks this Court to take judicial notice of the fact that a
gynecological examination is intrusive and would be humiliating based on Petitioner's age
and the fact that she has not previously had such an examination.
In contrast to the type of examination that women customarily undergo as
part of a routine annual gynecological examination, the physical examination at issue is not
an in-depth cervical examination. See supra
It stands to reason that females who undergo gynecological examinations are
likely to experience a decreased potential of emotional harm as they increase in age.
He makes this representation based upon his purported consultation with a
local psychologist, Dr. David Clayman.
Counsel for Jason Wilson stressed that the evidence which he seeks to obtain
from the gynecological examination is clearly the most compelling evidence that we could
have to dispute the charges asserted against his client.
The record suggests that J.W. would have been between the ages of nine and
eleven at the time of the assaults alleged in the indictment, while Jason Wilson would have
been between the ages of sixteen and eighteen.
Evidence to this effect was introduced by the State in Delaney. See 187
W.Va. at 216, 417 S.E.2d at 907.