Justices split on decision allowing judges to order psychological testing of young victims

A sharply divided state Supreme Court on Monday upheld its controversial 2002 ruling that allows judges to order children in sex abuse cases to undergo psychological testing.

Criminal defense lawyers say the ruling in the Lexington County case will help juries and judges better determine whether children are making false allegations. Victim advocates say the decision will further traumatize child victims and discourage others from coming forward.

Laura Hudson, spokeswoman for the S.C. Victim Assistance Network, said state law should be changed in light of Monday’s ruling.

“We think it’s a horrible blow against children’s rights,” she said. “If you’re bipolar, you can’t be raped? You can’t be a credible witness? That’s what is so offensive.”

Trey Walker, spokesman for S.C. Attorney General Henry McMaster, said his office is reviewing the ruling to see whether it can be appealed further.

Columbia criminal defense lawyer Tara Shurling, who represented the defendant in the appeal, said the ruling will help protect defendants’ rights.

“If your loved one was being accused of a horrific crime by a child who clearly has some mental health issues, how would you feel about the issue then?” she said.

Shurling said the ruling is needed because with young children, there often isn’t an existing mental health record to investigate.

The latest decision was decided by a 3-2 vote, unlike the 2002 ruling, which was unanimous.

Chief Justice Jean Toal, who authored the 2002 decision, reversed herself and dissented from the majority in the latest ruling. In Monday’s opinion, she said the majority’s ruling “undermines existing trial procedures used to evaluate witness credibility and contravenes the recent statewide movement to protect the rights of the sexually abused.”

Toal was joined in the dissent by associate justice James Moore, who also reversed his earlier position. Voting in the majority were associate justices E.C. Burnett, John Waller and Costa Pleicones.

Burnett, who authored the latest ruling, said victims’ rights “will not be compromised where compelling need is the standard for ordering psychological evaluations of child complainants.”

In the case in question, a Lexington County boy was accused in 1999 of raping his nephew while they were showering at the older boy’s home. At the time, the uncle was 12 or 13, and the nephew was 4 or 5, court papers said.

The State newspaper generally does not identify sexual abuse victims.

The younger boy reportedly told a counselor he had been hearing voices of two men who told him to “say mean things to his friends and to hurt them,” court papers said. After that was revealed during the trial, the lawyer for the older boy asked family court Judge Richard Chewning to order a psychological evaluation for the younger boy, but the judge declined.

Chewning found the older boy, who denied the allegations, guilty of criminal sexual conduct with a minor and sentenced him to juvenile prison. The S.C. Court of Appeals later reversed his conviction, and the state appealed to the Supreme Court.

The state asked for a rehearing after the 2002 ruling.

Reach Brundrett at (803) 771-8484 or rbrundrett@thestate.com.