Notes: Hutton v. State: Whose Rights Are Paramount, the Defendant's or the Child Victim's?

University of Baltimore Law Review Volume 27 Issue 1 Fall 1997 Article 9 1997 Notes: Hutton v. State: Whose Rights Are Paramount, the Defendant's or the Child Victim's? Lynn M. Marshall Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Marshall, Lynn M. (1997) "Notes: Hutton v. State: Whose Rights Are Paramount, the Defendant's or the Child Victim's?," University of Baltimore Law Review: Vol. 27: Iss. 1, Article 9. Available at: http://scholarworks.law.ubalt.edu/ublr/vol27/iss1/9 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact . HUTTON v. STATE: WHOSE RIGHTS ARE PARAMOUNT, THE DEFENDANT'S OR THE CHILD VICTIM'S? I. INTRODUCTION In the past twenty years, there has been a tremendous increase in the number of reported cases of child sexual abuse in the United States.' Documented cases increased from 6,000 in 1976 to 432,000 in 1991, representing more than a 2300% growth rate. 2 Some commentators estimate that between twenty and forty percent of sexually abused children display signs of psychological disturbance immediately after sexual abuse. 3 Criminal prosecution of these cases is difficult because there are usually no eyewitnesses, and the child complainant is often unwilling or unable to testify.4 Additionally, the 1. See Arthur J. Lurigio et al., Child Sexual Abuse: Its Causes, Consequences, and Implicationsfor Probation Practice, 59 FED. PROBATION 69, 69 (1995). "Child sexual abuse" is defined as coerced, tricked, or forced sexual activity between an adult and a person sixteen years old or younger. See David McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions:A Foray Into the Admissibility of Novel Psychological Evidence, 77 J. CRiM. L. & CRIMINOLOGY 1, 8-9 (1986). 2. See Lurigio et al., supra note 1, at 69. The huge increase and resulting impact on the legal system has been attributed to intense media coverage of the subject during the early 1980s. See Lisa R. Askowitz, Restricting the Admissibility of Expert Testimony in Child Sexual Abuse Prosecution: Pennsylvania Takes It to the Extreme, 47 U. MIAMI L.REV. 201, 202 (1992) (citing DAVID F'I-LHOR, CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 1, 3 (1984)). The women's movement brought the problem to public attention during the late 1970s. See id. 3. See Lurigio et al., supra note 1, at 70 (citing Angela Browne & David Finkelhor, Impact of Child Sexual Abuse: A Review of the Literature, 99 PSYCHOL. BULL.66, 66-77 (1986)). 4. See John E.B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 NEB. L. REV. 1, 3-4 (1989); see also Veronica Serrato, Expert Testimony in Child Sexual Abuse Prosecutions:A Spectrum of Uses, 68 B.U. L. REV. 155, 158 (1988). Evidentiary problems arise due to the fear and reluctance a child often feels when testifying against a trusted adult, especially a family member. See Serrato, supra, at 159-60. Even when children testify, their limited cognitive and linguistic abilities present problems in describing abuse. See id. at 159. Any child witness, abused or not, may become confused by dates, times, and frequencies of events, especially when a cross-examiner fails to phrase questions in an ageappropriate fashion. See id. at 161. Jurors may interpret such inconsistencies or confusion on the child's part as indicating that the child's testimony is unreliable. See id. Baltimore Law Review 292 [Vol. 27 prosecution often lacks physical evidence in child sexual abuse 5 cases. To combat these evidentiary problems, prosecutors have increasingly used expert testimony regarding psychological syndromes such as Post-Traumatic Stress Disorder (PTSD) as evidence of child sexual abuse. 6 PTSD is an emotional disorder in which a person suffers various symptoms 7 after experiencing a traumatic event.8 Where the "triggering stressor" of PTSD is rape, the disorder is commonly labeled Rape Trauma Syndrome (RTS);9 where the PTSD victim is a 5. Only 10% to 50% of child sexual abuse cases involve physical or medical evidence. See Myers et al., supra note 4, at 34 n.120. 6. See Bruce Gardner, Prosecutors Should Think Twice Before Using Experts in Child Sex Abuse Cases, 3 CRIM. JusT. 12, 13 (1988). 7. The four categories of PTSD symptoms are as follows: A. Existence of a recognizable stressor that would evoke significant symptoms of distress in almost everyone. B. Re-experiencing of the trauma as evidenced by at least one of the following: (1) recurrent and intrusive recollections of the event; (2) recurrent dreams of the event; (3) sudden acting or feeling as if the traumatic event were reoccurring, because of an association with an environmental or ideational stimulus. C. Numbing of responsiveness to or reduced involvement with the external world, beginning sometime after the trauma, as shown by at least one of the following: (1) markedly diminished interest in one or more significant activities; (2) feeling of detachment or estrangement from others; (3) constricted affect. D. At least two of the following symptoms that were not present before the trauma: (1) hyperalertness or exaggerated startle response; (2) sleep disturbance; (3) guilt about surviving when others have not, or about behavior required for survival; (4) memory impairment or trouble concentrating; (5) avoidance of activities that arouse recollection of the traumatic event; (6) intensification of symptoms by exposure to events that symbolize or resemble the traumatic event. State v. Allewalt, 308 Md. 89, 100 & n.6, 517 A.2d 741, 747 & n.6 (1986) (citing AM. PSYCHIATRIC Ass'N., DIAGNOSTIC AND STAT. MANUAL OF MENTAL DISORDERS (3d ed. 1980) [hereinafter DSM-II]). 8. See Allewalt, 308 Md. at 100, 517 A.2d at 746. Stressful incidents that can cause PTSD symptoms include automobile or airplane accidents, natural disasters, wartime combat, and rape. See Hutton v. State, 339 Md. 480, 491, 663 A.2d 1289, 1294 (1995) (citing Joseph T. Smith, Post Traumatic Stress Disorder: An Often Overlooked Element of Trauma, 20 TRIAL 92 (1984)). PTSD was first recognized as a syndrome by psychologists treating Vietnam War veterans. See Kenneth M. Gordon, Rape Trauma Syndrome in Sexual Assault Cases, 20 COLO. LAw 2509 (1991). 9. See Gordon supra note 8. The same group of psychologists who originally rec- 1997] Hutton v. State 293 child, the disorder is commonly labeled Child Sexual Abuse Accommodation Syndrome (CSAAS). l0 In both instances, state courts across the country are sharply divided on the proper use of PTSD testimony in sexual abuse cases. 1 The Court of Appeals of Maryland most recently addressed the admissability of PTSD evidence in Hutton v. State.12 The Hutton case (...truncated)