NEW YORK, Nov 18 (Reuters) - A family-court order directing
a teenage girl to undergo a forensic medical examination for
additional proof of sexual abuse violated the girl's
constitutional protection against unreasonable search, a New
York appeals court has ruled.
In a unanimous opinion published Thursday, the Appellate
Division, Second Department, found that a family court already
had "conclusive evidence of abuse" when it ordered the victim,
identified as Shernise C., to submit to a medical exam two
years after the alleged assault took place.
Given the evidence, the need for her to submit to a "highly
intrusive physical examination is so diminished as to render
the search unreasonable under the Fourth Amendment," wrote
Justice Jeffrey Cohen.
Under the Family Court Act, victims of alleged abuse must
undergo a forensic medical examination. While the court left
the statute intact, it found that it was unconstitutional when
applied in Shernise's case, applying its own balancing test to
determine when the state's need to gather evidence conflicted
with the victim's right to be protected against intrusive
searches.
"An innocent child should certainly have as much right to
be free from unreasonable search and seizure as someone
suspected of committing a crime," Cohen wrote.
"Thus while harmonizing the state's extraordinary interest
in protecting a child's welfare from the potential for the
invasion of a child's constitutional rights may be at times
difficult, a proper balance must be struck since even the most
heinous crime of child sexual abuse does not automatically
provide cause to ignore the rights of the victim."
'EXTREME INVASION'
According to the court record, Shernise C. was just shy of
her 14th birthday in 2008 when she gave birth to a daughter. In
2010, a DNA test established with 99.97 percent certainty that
her stepfather had fathered the child.
Shernise, her sister and daughter were placed into
protective custody by the Administration for Children's
Services. ACS then filed petitions in family court against
Shernise's stepfather and mother accusing them of abuse,
according to court filings.
On August 24, 2010, the family court directed ACS to
arrange for Shernise to undergo an exam to look for any visible
areas of trauma. But Shernise's attorney argued that the
examination was an "extreme invasion of Shernise's Fourth
Amendment rights," given the "likelihood of trauma" and
"absence of a compelling need for additional evidence of
intercourse," the court ruling stated.
Three days later, the family court stayed enforcement of
the order, and the stay remained in effect while attorneys from
Legal Aid's Juvenile Rights Practice appealed the court order.
Judith Waksberg, director of the appeals unit of the
Juvenile Rights Practice, said in an email statement that the
ruling "reaffirms the notion that all children -- including
those who are alleged to be abused or neglected -- are entitled
to the protections of the Fourth Amendment."
"Even when its mandate is to protect the child, a court
must always ensure that the action taken to protect the child
comports with the Fourth Amendment and respects the child's
bodily integrity," Waksberg said.
Sharyn Rootenberg, assistant corporation counsel in the
appeals division of the New York City Law Department, said the
city was "pleased that the appellate division left the statute
intact, since its primary purpose is to protect children by
uncovering and preserving evidence of possible abuse."
The case is In the Matter of Shernise C. et al, in the
Supreme Court of the State of New York, Appellate Division:
Second Judicial Department, index no. 2645/10.
For Legal Aid: Tamara Steckler and Claire Merkine.
For ACS: Larry Sonnenshein and Sharyn Rootenberg of the New
York City Law Department; Nancy Thomson of the ACS.
(Reporting by Jessica Dye)
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