Examination Order Violated Abuse Victim's Rights, Panel Says

In November 2008, when Shernise C. was just shy of her 14th birthday, she gave birth to a daughter, Emily C. A DNA test conducted in August 2010 established a 97.97% chance that Shernise's stepfather was Emily's father. The stepfather had continued to have sex with Shernise until July 2010.

Shernise, Emily and Shernise's four-year-old sister, Stephanie R., were removed from the home and placed in the custody of the Administration for Children's Services.

In August 2010, Brooklyn Family Court Judge Terence J. McElrath directed sua sponte that ACS arrange an examination of the three children. The Legal Aid Society, which represented Shernise, objected, but according to its brief, Judge McElrath responded, “Look, if you want to go to the Appellate Division, I have absolutely no problem with that. The problem is that on an abuse case, the statute requires that I do it.”

On appeal, Legal Aid noted that “[t]hese examinations involve at minimum a strip search to uncover evidence of physical abuse, or, in the case of sexual abuse such as here, a visual or manual search of the child's vaginal and anal cavities.”

Quoting from a recent U.S. Supreme Court decision, Justice Cohen observed that the nude search of a “vulnerable” 13-year-old may cause “serious emotional damage.” However, since Judge McElrath stayed his order, the exams were not actually conducted.

The Second Department declined to reach Legal Aid's argument that the statute was facially unconstitutional but it also rebuffed the city's suggestion that it rule on narrower statutory grounds. Instead, the panel held that the statute as applied to Shernise was unconstitutional because the projected examination was plainly unnecessary.

The decision analogized the examination Shernise faced to the mandatory jail strip searches that have been ruled unconstitutional where there is no particularized suspicion of wrongdoing. “Strip searches and visual body searches implicate fundamental Fourth Amendment rights,” Justice Cohen wrote. “Here it is the victim of the alleged abuse who is being subjected to a search, although a victim's rights are entitled to no less protection than that of an accused ' Acccordingly, Shernise, as the alleged victim, is entitled to no less protection under the Fourth Amendment than her stepfather would enjoy as an accused.”

Justice Cohen acknowledged that the exam policy set forth in the Family Court Act is generally effective in discovering and preserving evidence of child abuse. Thus, the intrusiveness of the procedure “must be balanced against the State's 'extraordinary weighty' interest in protecting children ' as well as its interest in protecting the rights of an individual accused of child abuse, by discovering and preserving evidence of abuse, or ascertaining the absence thereof.”

Here, however, he said that “the DNA evidence of Emily's parentage already conclusively establishes that the respondent stepfather sexually abused Shernise ' and indelibly preserves unequivocal evidence of the abuse. While the physical examination and colored photographs taken of Shernise more than two years after the birth of her daughter have the possibility, albeit remotely, of revealing additional evidence of abuse, the examination'has been rendered, at best, cumulative and, at worst, superfluous.”

Joining the decision reversing the examination order were Presiding Justice A. Gail Prudenti and Justices Daniel D. Angiolillo and Anita R. Florio.

Advocates React

Claire V. Merkine of the Legal Aid Society acted as the attorney for Shernise. Ms. Merkine said there are many situations where the exams are appropriate, but they should not be ordered indiscriminately.

Judith Waksberg, who oversees appeals for the Legal Aid Society's Juvenile Rights Practice, welcomed the decision as reaffirming that “children ha[ve] constitutional rights. Although the court declined to address our facial challenge to the statute, we believe that the decision is clear that a Fourth Amendment analysis must be applied whenever the statute is used,” she added.

Sharyn Rootenberg of the Corporation Counsel's Office handled the appeal for the city with assistance from Nancy Thomson, assistant commissioner for ACS Family Court Legal Services. Chaim E. Bryski, a student at the Benjamin N. Cardozo School of Law, also worked on the appeal. The city contended on appeal that the statute was facially constitutional. It argued unsuccessfully that judges have discretion in abuse cases to determine whether or not to order medical exams.

“We are 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,” Ms. Rootenberg said in a statement. “We are also gratified that the court found the statutory examination unreasonable and unnecessary as ordered and applied in this case, since ACS already had enough evidence to establish its case and such exam would have been an unjustifiable invasion of the child's rights.”

A Family Court order that a teenage sexual abuse victim undergo a highly intrusive “forensic medical examination” violated her Fourth Amendment rights, a Brooklyn appellate court has ruled. A unanimous panel of the Appellate Division, Second Department, agreed with the lower court that Family Court Act
' 1027(g) required such exams in all abuse cases, but it said that courts nevertheless must be careful not to “trample” on the constitutional rights of children in their “zeal” to protect them.

“An innocent child should certainly have as much right to be free from an unreasonable search and seizure as someone suspected of committing a crime,” Justice Jeffrey A. Cohen wrote for the panel in Matter of Shernise C. (Anonymous), 2010-08309, 2010-10076. “Thus, while harmonizing the state's extraordinary interest in protecting a child's welfare from the potential for 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.”

Abuse Already Evident

In November 2008, when Shernise C. was just shy of her 14th birthday, she gave birth to a daughter, Emily C. A DNA test conducted in August 2010 established a 97.97% chance that Shernise's stepfather was Emily's father. The stepfather had continued to have sex with Shernise until July 2010.

Shernise, Emily and Shernise's four-year-old sister, Stephanie R., were removed from the home and placed in the custody of the Administration for Children's Services.

In August 2010, Brooklyn Family Court Judge Terence J. McElrath directed sua sponte that ACS arrange an examination of the three children. The Legal Aid Society, which represented Shernise, objected, but according to its brief, Judge McElrath responded, “Look, if you want to go to the Appellate Division, I have absolutely no problem with that. The problem is that on an abuse case, the statute requires that I do it.”

On appeal, Legal Aid noted that “[t]hese examinations involve at minimum a strip search to uncover evidence of physical abuse, or, in the case of sexual abuse such as here, a visual or manual search of the child's vaginal and anal cavities.”

Quoting from a recent U.S. Supreme Court decision, Justice Cohen observed that the nude search of a “vulnerable” 13-year-old may cause “serious emotional damage.” However, since Judge McElrath stayed his order, the exams were not actually conducted.

The Second Department declined to reach Legal Aid's argument that the statute was facially unconstitutional but it also rebuffed the city's suggestion that it rule on narrower statutory grounds. Instead, the panel held that the statute as applied to Shernise was unconstitutional because the projected examination was plainly unnecessary.

The decision analogized the examination Shernise faced to the mandatory jail strip searches that have been ruled unconstitutional where there is no particularized suspicion of wrongdoing. “Strip searches and visual body searches implicate fundamental Fourth Amendment rights,” Justice Cohen wrote. “Here it is the victim of the alleged abuse who is being subjected to a search, although a victim's rights are entitled to no less protection than that of an accused ' Acccordingly, Shernise, as the alleged victim, is entitled to no less protection under the Fourth Amendment than her stepfather would enjoy as an accused.”

Justice Cohen acknowledged that the exam policy set forth in the Family Court Act is generally effective in discovering and preserving evidence of child abuse. Thus, the intrusiveness of the procedure “must be balanced against the State's 'extraordinary weighty' interest in protecting children ' as well as its interest in protecting the rights of an individual accused of child abuse, by discovering and preserving evidence of abuse, or ascertaining the absence thereof.”

Here, however, he said that “the DNA evidence of Emily's parentage already conclusively establishes that the respondent stepfather sexually abused Shernise ' and indelibly preserves unequivocal evidence of the abuse. While the physical examination and colored photographs taken of Shernise more than two years after the birth of her daughter have the possibility, albeit remotely, of revealing additional evidence of abuse, the examination'has been rendered, at best, cumulative and, at worst, superfluous.”

Joining the decision reversing the examination order were Presiding Justice A. Gail Prudenti and Justices Daniel D. Angiolillo and Anita R. Florio.

Advocates React

Claire V. Merkine of the Legal Aid Society acted as the attorney for Shernise. Ms. Merkine said there are many situations where the exams are appropriate, but they should not be ordered indiscriminately.

Judith Waksberg, who oversees appeals for the Legal Aid Society's Juvenile Rights Practice, welcomed the decision as reaffirming that “children ha[ve] constitutional rights. Although the court declined to address our facial challenge to the statute, we believe that the decision is clear that a Fourth Amendment analysis must be applied whenever the statute is used,” she added.

Sharyn Rootenberg of the Corporation Counsel's Office handled the appeal for the city with assistance from Nancy Thomson, assistant commissioner for ACS Family Court Legal Services. Chaim E. Bryski, a student at the Benjamin N. Cardozo School of Law, also worked on the appeal. The city contended on appeal that the statute was facially constitutional. It argued unsuccessfully that judges have discretion in abuse cases to determine whether or not to order medical exams.

“We are 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,” Ms. Rootenberg said in a statement. “We are also gratified that the court found the statutory examination unreasonable and unnecessary as ordered and applied in this case, since ACS already had enough evidence to establish its case and such exam would have been an unjustifiable invasion of the child's rights.”