No. 2--00--0747

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

		)

	Plaintiff-Appellant,	)

	)	

v.	)	No.	98--CF--2702

	)

ISMAEL LOPEZ,	)	Honorable

	)	Perry R. Thompson,

	Defendant-Appellee.	)	Judge, Presiding.

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court: 	

	Defendant, Ismael Lopez, was charged under section 12-- 16(c)(1)(i) of the Code of Criminal Procedure of 1963 (Code) (720

ILCS 5/12--16(c)(1)(i) (West 1998)) with aggravated criminal sexual

abuse.  Specifically, the indictment alleged that defendant

"knowingly fondled the vaginal area of [B.B.] for the purpose of

the sexual arousal of the defendant."  On defendant's motion, the

trial court ordered the State to produce B.B. for a physical

examination by a physician retained by the defense.  The victim's

family refused to produce her for the examination.  Defendant then

moved for an order barring the State from introducing any evidence

or testimony from B.B.'s examining physicians concerning their

physical examinations of her.  Denying the State's request for a

hearing, the trial court granted the motion.  We vacate the order granting defendant's motion for an independent physical examination

of B.B. and remand the cause.  

	BACKGROUND

	Suspecting that B.B. was being sexually abused, her

grandmother made an appointment with B.B.'s physician, Dr. E.

Anderson.  B.B. was 20 months old at that time.  In a report dated

December 1, 1998, Dr. Anderson noted "an adhesion of the labia with

a synechial scar of the tissue touching together, covering the

opening of the [vagina] and obscuring the hymen."  The labia was

"moderately red."  Dr. Anderson further stated, "A careful exam of

the labial origin post to this shows a small false passage,

suggestive of partial tearing."  Dr. Anderson was not able to

inspect B.B.'s hymen adequately.  When he attempted to separate

B.B.'s labia or view her vagina, B.B. reported discomfort and then

"with[drew] from the situation."  Dr. Anderson's conclusion was

"suspected sexual abuse based on the apparent scar tissue

surrounding the vagina."  He explained: 

	"I cannot 100% [rule out] that this is a developmental

anomaly, but due to the tear post, I feel this probably is

traumatic.  Certainly, visualization of the hymen would

provide additional useful info[rmation] for a definitive

[diagnosis], although the synechia is suggestive of previous

scarring and raw edges coming together, suggestive of trauma.

***  Due to the swelling of the tissues, I should note that it

was difficult to decide whether the tissue adhesion was with the labia minora or with the actual [vaginal] wall, although

it would appear to be most likely labial." 

	Dr. Meghan Flannery examined B.B. soon after Dr. Anderson's

examination.  She examined B.B. in the "frog leg" and "knee/chest"

positions and prepared 17 colposcopic photographs of B.B.'s vaginal

region.  In her notes of December 3, 1998, Dr. Flannery reported:

	"Thin hymenal rim with partial obliteration of the rim

posteriorly.  Edges of the hymen are thickened.  Notched areas

at approximately the two o'clock and ten o'clock positions. 

Widened elongated hymen.  Exam suspicious for trauma most

likely consistent with digital penetration."  

	In February 1999, the State gave the defense the reports of

Drs. Flannery and Anderson but not the photographs Dr. Flannery had

taken during her examination.  Although Dr. Flannery's report

indicated that she had taken photographs during the examination,

the defense did not request the photographs until September 1999. 

The defense received the photographs from the State in October

1999.    

	In January 2000, when B.B. was about three years old, the

defense moved the court to order the State to produce B.B. for an

independent gynecological examination by the defense's expert, Dr.

Ramona Slupik.  In its motion, the defense asserted that Dr. Slupik

was "unable to concur in the findings of Dr. Flannery" and that Dr.

Slupik believed "that after conducting her own examination of

[B.B.], she would be able to come to a conclusion whether there is medical evidence consistent with digital penetration, as found by

Dr. Flannery."  The defense submitted an affidavit of Dr. Slupik,

in which she stated in relevant part: 

	"I have reviewed medical records as well as colposcopic

(magnified) photographs taken by Dr. Flannery at the time she

examined the alleged victim on December 17, 1998.  In addition

to other findings, Dr. Flannery found a partial obliteration

of the rim posteriorly.  Based upon my review of the medical

records I am unable to arrive at a conclusion with regard to

this finding for the following reasons: 

		1)	Partial obliteration of the hymen is not conclusively seen on the photographs submitted to me.  Some

clarification of the area of the hymen at 6 or 7 o'clock could

be obtained by various other exam techniques, including a

change of position.  

		A repeat examination of the alleged victim would resolve

whether there is partial obliteration posteriorly.  The

examination would be conducted with the patient in supine

(lying on her back) position, with the knees apart (so-called

"frog-leg" position) as well as in the prone position ("knee

chest").  One ounce of sterile water would be used to rinse

the hymen of any mucus or other debris and to facilitate its

depiction.  The exam would take approximately 5 minutes. 

Other than Q-tips, no other instruments would be used during

the exam.  

		Further, 'findings' which were allegedly present during

	Dr. Flannery's exam 14 months ago should still be present 

	now, if they are specific for sexual abuse.  A female hymen

does not re-grow, re-generate, or re-attach if truly

traumatized by blunt force penetrating trauma.  Findings that

are specific for sexual abuse will be permanent."

	At the hearing on the motion to produce B.B. for examination

by Dr. Slupik, the State indicated that it had spoken with "our

physician who did the examination" (presumably Dr. Flannery) and

that "[s]he has proceeded by proffer."  The State stated it did not

believe defense counsel would have an objection to this manner of

proceeding.  When, at a later point in the hearing, the trial court

asked the State whether it intended to file an affidavit to counter

Dr. Slupik's, the prosecutor replied, "I don't believe we need

[sic] at this point because I believe it is by stipulation, I am giving this by way of proffer."   	

	The State then set forth Dr. Flannery's points of contention

with Dr. Slupik's claims.  Specifically, the physician denied that

the examination Dr. Slupik proposed would take five minutes and

that the evidence of trauma seen by Dr. Flannery would still be

present when Dr. Slupik examined B.B.  The State also contended

that the defense's motion and Dr. Slupik's affidavit both

"overstated" Dr. Flannery's description of the trauma.  The State

explained that Dr. Flannery did not, as the defense motion

represented, conclude that there was medical evidence "consistent with digital penetration," but only that B.B.'s genitalia was

"suspicious for trauma most likely consistent with digital

penetration."  There is a "significant difference" between these

two findings, the State suggested.  The defense responded that the

primary reason for the motion was that Dr. Slupik did not believe

that the photographs "conclusive[ly]" showed partial obliteration

of the hymen.  The defense added that the State's "expert is

agreeing that you cannot see in the photographs everything that she

specifically saw in the examination."  In response to the State's

reference to the defense's delay in requesting the additional

physical examination, the defense attorney advised the court that

her heavy caseload was partially responsible for the delay.  

	The trial court granted the defense's motion for an

examination of B.B. by Dr. Slupik.  However, neither at the hearing

nor in its written order did the court set forth any reason for its

ruling.  The only adumbration of a rationale was contained in the

court's observation during argument that Dr. Flannery would not be

permitted to testify at trial regarding her conclusions because

"[she] can't even testify as to a speculation."

	The State filed a motion to reconsider.  Without hearing

argument from the parties, the court denied the motion for "reasons

stated of record."  When B.B.'s family refused to produce her for

the examination, the defense filed a motion to dismiss the

indictment for the State's failure to produce B.B.  The defense

argued in its motion that Dr. Slupik's examination "could clearly exonerate" defendant and that defendant's "due process right to a

fundamentally fair trial will be destroyed without the opportunity

to obtain the potentially exonerating evidence that could come

along only from an independent examination of the complaining

witness."  

	At a hearing to schedule a deadline for the State's response,

the State requested an evidentiary hearing for the parties to

present the testimony of their experts.  The State asserted that

the court needed "to hear everything involved in this examination"

in order to determine the appropriate sanction.  Asserting that it

considered the issue of the appropriate sanction "a simple legal

issue," the court scheduled a future hearing for legal argument

only.  

	At the parties' oral argument on the issue on May 3, 2000, the

trial court noted that People v. Wheeler, 151 Ill. 2d 298 (1992), "give[s] us some significant guidance in terms of evaluating what's

appropriate consistent with the defendant's right as well as with

the victim's rights and the victim's family's rights."  The court then continued the matter to May 9, promising to impose the

sanction of dismissal or exclusion of evidence if the State did not

produce B.B. for examination before the next hearing.  	

	As of the May 9 hearing, the family still had refused to

produce B.B. for the examination.  The State asked the court to 

conduct an evidentiary hearing before deciding the appropriate

sanction.  The court denied the request and dismissed the indictment.  In its written order, the court indicated that its

decision was "based upon the U.S. Constitution, Illinois

Constitution, effective assistance of counsel, due process and

reasons more fully set out in the record on this date and on 5-3-

00."  

	The parties agreed that it would be wiser from a procedural

standpoint to reinstate the indictment and have the court address

the defense's motion as a motion in limine to exclude evidence.  The court reinstated the indictment, and the defense filed a motion

in limine to bar the State from presenting (1) the testimony of Drs. Anderson and Flannery concerning their examinations of B.B.,

as well as the testimony of any other medical personnel present

during the examinations; and (2) any demonstrable evidence derived

from the examinations as well as any testimony of nonexamining

experts concerning such evidence.  

	 At the hearing on the motion, the State made its third

request for an evidentiary hearing.  Opposing the request, the

defense observed that the court, in ordering the examination, had

already "balanced the discovery due process interests of the

defendant against the privacy interests of the victim."  The

defense argued that a compelling interest existed for the

examination because (1) Dr. Slupik determined that she could not

verify the conclusions of Drs. Anderson and Flannery without

examining B.B.; (2) B.B. had already been examined twice; and (3)

the proposed examination was "nonphysically invasive."  The defense argued that fairness would not be served either by allowing it to

cross-examine Drs. Anderson and Flannery or by permitting the

parties to present only nonexamining experts to testify concerning

the colposcopic photographs.  The latter remedy particularly was

not adequate, the defense contended, because any testimony by a

nonexamining expert concerning the photographs would have the

physical examinations as its "direct source."    

	The State argued in response that the court's previous

balancing of the respective interests was not adequate because the

court "did not take into account all of the evidence that [the

State] intend[ed] or attempted to present."  The State pointed out

that, based on her examination of the photographs, Dr. Slupik's

only disagreement with Drs. Anderson and Flannery was with respect

to their finding that B.B.'s genital area showed a partial

posterior obliteration of her hymen.  The State suggested that an

evidentiary hearing should be conducted to determine whether a

finding of a partial posterior obliteration of B.B.'s hymen is

necessary to a conclusion that her genital area had been

traumatized.  The State also asserted that the real concern was

not, as the defense suggested, the physical nature of the

examination but, rather, its potential psychological impact given

its nature and the fact that it would be the third such examination

that B.B. would undergo.  

	The court denied the State's request for an evidentiary

hearing and granted the defense's motion in limine.  The court's written order provided in relevant part:

	"4.	That the body of the young child is effectively still the physical evidence in this case (see the last statement in

the affidavit of the defense report).  The proposed

defense examination of the 'evidence' would be more than

potentially useful.  In light of the incomplete or

incondusive [sic] findings of the State's two experts and as it could determine whether or not 'findings' specific

for sexual abuse are present, that exam could determine

whether the alleged victim is a victim indeed (leaving as

the only practical issue the identity of the perpetrator

of the abuse). There is a clear need for the exam.  (See People v. Newberry, [166 Ill. 2d 310 (1995)].)   

	5.	That the State's position is that the defense, to ensure a fair trial, can simply review the State's medical

records and findings and cross-examine the State's two

experts.  The Supreme Court in People vs. Newberry, and common sense, recognizes that 'while these opportunities

exist, the relief they offer is illusory.' [Newberry, 166 Ill. 2d at 317.]  The Supreme Court also recognized in

People vs. Wheeler, [151 Ill. 2d at 309], 'while it may be possible for an expert to form an opinion...based only on

a review of reports...[t]his is clearly not the preferred method....An expert who has personally examined a victim

in [sic] a better position to render an opinion than is an expert who has not done so.' 

	6.	The Court in People vs. Newberry was concerned with the examination of physical evidence unlike People vs. Wheeler which dealt with a psycho therapist's [sic] interview with a rape victim.  The People vs. Wheeler court barred the State's use of evidence of rape trauma

syndrome through the testimony of an examining expert. 

The State would be allowed to introduce rape trauma

evidence through a nonexamining expert.  That is,

arguably, the State could call an expert to describe the

syndrome and its symptoms, and call other witnesses to

offer evidence of those symptoms.  The People vs. Newberry court upheld the dismissal of the charge because of the inability of the State to provide the physical

evidence for the  defense expert's examination.  This is

the situation in the case before this court.  The State

has shown that they are able, and willing, to present the

young child, the physical evidence, to State's experts

but not to a defense expert.

	7.	That issues of the defendant's due process right to a fundamentally fair trial, of the effective assistance of

counsel, and of the right of confrontation (sSee People vs. McClanahan, [191 Ill. 2d 127 (2000)]) under the Federal and State Constitutions are involved in this

case.  So is the issue of victims [sic] rights.  So also is the issue of fundamental fairness."  

The court excluded "the testimony of Dr. Anderson; the testimony

and reports of Dr. Flannery; the testimony of any personnel present

at the exams; and any photographs, diagrams or other demonstrative

evidence procured during or as a result of the exams."  In its

comments at the hearing following the parties' arguments, the court

suggested that section 115--6 of the Code (725 ILCS 5/115--6 (West

1998)) contains a sanction "broader than the Wheeler sanction" and is precedent for excluding the State's evidence as requested by the

defense.  The court also remarked that it had previously granted

the defense's request for examination because the request was

"reasonable" and the examination would be "relevant" and

"enlightening to the court." 

DECISION

	In People v. Glover, 49 Ill. 2d 78, 82 (1971), our supreme court held that a trial court has "jurisdiction to order an

examination of the complaining witness in a case involving a sex

violation [citation] and it may, in the exercise of its discretion,

do so when the defendant presents a compelling reason therefor." 

The defendant in Glover sought both a psychiatric examination of the complaining witness to investigate her alleged history of 

" 'emotional instability and immaturity' " and an ophthalmological

examination "to determine her ability to see and identify the defendant."  Glover, 49 Ill. 2d at 81.  The defendant argued that the latter examination was necessary because it was dark at the

time of the alleged assault and there were no other witnesses to

the assault.  The supreme court upheld the trial court's denial of

the motion for the physical examination, providing no analysis but

only the summary holding that "the record reflects no compelling

reason" for the examination.  Glover, 49 Ill. 2d at 82.  

	Several years later, we cited Glover in setting forth the rule that a trial court may order a physical examination of the

complainant in a sex offense case provided the defendant

demonstrates a compelling need for the examination.  See People v. Visgar, 120 Ill. App. 3d 584, 587 (1983), citing Glover, 49 Ill. 2d  78.  In Visgar, the defendant was charged with the lewd fondling of a child.  The defendant moved for a physical examination of the

complaining witness to determine "whether [her] hymen was intact." 

Visgar, 120 Ill. App. 3d at 587.  We upheld the trial court's denial of the motion, reasoning that because there was no

allegation that the complaining witness was injured or that her

vagina was penetrated, an examination of the vagina "would not be

necessary for any purpose."  Visgar, 120 Ill. App. 3d at 587. 

	We note that Visgar does not dispose of the defendant's request in this case.  Defendant is charged under section 12--

16(c)(1)(i) of the Code with committing "an act of sexual conduct

with a victim who was under 9 years of age when the act was

committed."  Section 12--12(e) of the Code (720 ILCS 5/12--12(e) (West 1998)) defines "sexual conduct," in relevant part, as "any

intentional or knowing touching  or fondling by the victim or the

accused, either directly or through clothing, of the sex organs,

anus or breast of the victim or the accused *** for the purpose of

sexual gratification."  The specific allegation in the indictment

is that Lopez "knowingly fondled the vaginal area of [B.B.]" for

his sexual gratification.  Although it has not formally alleged

that defendant penetrated B.B.'s vagina, the State has expressed an

intention to introduce evidence of penetration, i.e., that B.B.'s hymen is not intact, to prove its charge that defendant fondled

B.B.  On its face, the examination defendant proposes would be

useful in challenging this evidence.  Thus, we find Visgar distinguishable insofar as in this case, unlike Visgar, the State has alleged penetration and defendant has proposed an examination

to confirm or disconfirm some of the State's proposed evidence of

penetration.   

	We hold, nevertheless, that defendant has not demonstrated a

compelling need for the examination he requests.  The record is

undeveloped on some points critical to defendant's motion.  First,

there is nothing in the record substantiating Dr. Slupik's

conclusory observation that an examination of B.B.'s vaginal area

is necessary because the colposcopic photographs present views of

B.B.'s hymen that are inadequate to demonstrate conclusively

whether or not there is a partial obliteration of B.B.'s hymen. 

The State made a vague concession at the hearing on the motion that the photographs do not show "everything" that Dr. Flannery saw in

the examination.  However, the adequacy of the photographs was not

explored sufficiently in the court below.  Therefore, we cannot say

that Dr. Slupik's rationale for the examination is compelling.

	Second, the sole evidence defendant has produced in support of

his motion is the affidavit of Dr. Slupik, who alleges that the

examination would be useful in challenging Dr. Flannery's finding

of a partial obliteration of B.B.'s hymen.  However, Dr. Slupik

does not address the findings of Dr. Anderson.  Although, due to

B.B.'s discomfort, Dr. Anderson was unable to inspect her hymen, he

did find "apparent scar tissue surrounding the vagina,"

specifically, "an adhesion of the labia with a synechial scar of

the tissue touching together, covering the opening of the [vagina]

and obscuring the hymen."  Dr. Anderson noted that the inspection

of the hymen would provide "additional useful info[rmation] for a

definitive [diagnosis]."  He immediately added, however, that "the

synechia is suggestive of previous trauma and raw edges coming

together, suggestive of trauma."  Dr. Slupik did not express an

opinion on the accuracy of Dr. Anderson's finding of scar tissue. 

The relation of the scar tissue to the hymenal tear was not

explored in the court below.  Thus, it is not clear from the record

whether a challenge to the existence of a hymenal obliteration

supposedly found by Dr. Flannery necessarily would be a challenge

to the existence of the scar tissue supposedly found by Dr.

Anderson.  Because Dr. Slupik's examination apparently would challenge only one of two apparently independent indications of

trauma for which the State has produced evidence, we cannot regard

defendant's request for the examination as "compelling."  We hold

that the record, in its current state, does not meet the standard

set forth in Visgar and Glover and that the trial court erred in granting defendant's request for an examination. 

	Given the gravity of the criminal charge in this case and the

seriousness of the interests implicated in defendant's request for

an examination, the record was insufficiently developed on the

issue at hand.  We recognize that neither party requested an

evidentiary hearing on defendant's request for the examination. 

Nonetheless, a trial court has an active, inescapable 

responsibility to ensure that the contested proceeding it oversees

and the resulting rulings it issues accord with the appropriate

legal standards, which in this instance require defendant to

establish a compelling need.  Some of the trial court's remarks

suggest it did not evaluate defendant's request in accordance with

the applicable standard.  In its order granting the defense's

motion in limine to sanction the State for its failure to comply with the order granting the examination, the trial court stated

merely that there was a "clear need" for the examination.  In its

remarks at the hearing on the motion in limine, the court commented that the defense's request for the examination was "reasonable" and

that the examination would yield evidence that is "relevant" and

"enlightening."  A "clear" need is not the same as a "compelling" need nor is a "reasonable" request the same as a "compelling"

request.      

	We now turn to offer some guidance to the trial court on

remand from this decision.  To our knowledge, Visgar and Glover are the only published cases in which a reviewing court in Illinois has

had occasion to apply the "compelling need" test to a defendant's

request for an independent physical examination of the complaining

witness in a sex offense case.  A number of state courts have

adopted a "compelling need" or "compelling reason" approach to such

requests.  See, e.g., People v. Chard, 808 P.2d 351 (Colo. 1991); State v. Garrett, 384 N.W.2d 617 (Minn. Ct. App. 1986); State v. D.R.H., 127 N.J. 249, 604 A.2d 89 (1992); State v. Barone, 852 S.W.2d 216 (Tenn. 1993); State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903 (1992).  However, while many of these courts have

discussed at length what a trial court should consider in

entertaining a defendant's request for an independent physical

examination of the victim (see, e.g., Barone, 852 S.W.2d at 221-22; Chard, 808 P.2d at 355-56), neither Visgar nor Glover states more than that a "compelling need" must be shown for the examination. 

We believe trial courts should be provided further guidance on this

issue.  

	We agree with the Barone court that the "critical inquiry" involved in applying the "compelling need" test is "whether the

evidence sought by the defendant is of such importance to his

defense that it outweighs the potential for harm caused by the invasion of the complainant's privacy, including the prospect that

undergoing a physical examination might be used for harassment of

a prosecuting witness" (Barone, 852 S.W.2d at 222).  We agree with the Barone court that the relevance of the requested examination to the defense must be considered in each case with due regard for the

obvious fact "that the highly intrusive nature of a physical exam,"

especially (we note) a gynecological examination, "raises the same

concerns about emotional trauma, embarrassment, and intimidation to

the child victim that are present with psychological examinations"

(Barone, 852 S.W.2d at 222; see also State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989) ("The practice of granting physical examinations

of criminal witnesses must be approached with utmost judicial

restraint and respect for an individual's dignity")).  We approve

of the approach, set forth in Barone and other cases, under which a trial court confronted with a defendant's request for an

independent physical examination of the complaining witness in a

sex offense case must consider (1) the complainant's age; (2) the

remoteness in time of the alleged criminal incident to the proposed

examination; (3) the nature of the requested examination and the

intrusiveness inherent in it; (4) the resulting physical and

emotional effects of the examination on the victim; (5) the

probative value of the examination to the issue before the court;

and (6) the evidence already available for the defendant's use

(Barone, 852 S.W.2d at 222; Delaney, 187 W. Va. at 216, 417 S.E.2d at 907; Ramos, 553 A.2d at 1062).  On remand, the trial court should weigh these factors in considering defendant's motion. 

Because the issues framed by the conflicting opinions of Drs.

Flannery and Slupik over the necessity and propriety of another

examination of B.B. are intensely factual in nature and the record

is incomplete in several critical respects, we believe an

evidentiary hearing is necessary in this case for an adequate

consideration of defendant's motion for an independent examination

of B.B.  

	While the trial court must consider all of the above factors in addressing defendant's motion, we note that certain factors in

particular must be given greater attention on remand than they were

given previously.  First, in addressing defendant's motion, the

trial court gave inadequate consideration to the rights of B.B.  We

find inappropriate the trial court's remark that the body of B.B.,

"the young child," is  "physical evidence."  See State v. Hewett, 93 N.C. App. 1, 8, 376 S.E.2d 467, 471 (1989) (remarking of an

attempt to compare the victim with cocaine powder, "Powder does not

have dignity, and courts are rightly solicitous when a human

being's privacy faces invasion").  Evidence does not have an

interest in privacy.  A person, on the other hand, does--even when

she is not an alleged perpetrator but an alleged victim of crime. 

Section 4(a)(1) of the Code (725 ILCS 120/4(a)(1) (West 1998))

provides that crime victims have "[t]he right to be treated with

fairness and respect for their dignity and privacy throughout the

criminal justice process."   The privacy interests of complainants have constitutional protection as well. "It is surely anomalous to

say that the individual and his private property are fully

protected by the Fourth Amendment only when the individual is

suspected of criminal behavior."  Camara v. Municipal Court, 387 U.S. 523, 530, 18 L. Ed. 2d 930, 936, 87 S. Ct. 1727, 1732 (1967);

see Darryl H. v. Coler, 801 F.2d 893, 899-907 (7th Cir. 1986) (holding that visual examination of unclothed alleged minor victim

by child protection worker implicated fourth amendment concerns); People v. Browning, 108 Cal. App. 3d 117, 124, 166 Cal. Rptr. 293, 297 (1980) ("It is our conclusion that witnesses should have, and

we hold they do have, the same fourth amendment protection against

governmental intrusion into their bodies that defendants in

criminal cases have." Holding that proposed surgery on complainant

to remove bullets remaining in his body for ballistic examination

would be an unreasonable intrusion into his body proscribed under

fourth amendment).  When entertaining a motion by the defense for

an independent physical examination of the complaining witness in

a sex offense case, the trial court must give due consideration to

the rights of the alleged victim as well as the rights of the

defendant.  	

	Second, the trial court must give greater consideration to the

nature of the proposed examination and its potential physical and

emotional impact on B.B.  There is a degree of intrusiveness and

humiliation associated with a gynecological examination, especially

of a young girl.  See Privee v. Burns, 46 Conn. Supp. 301, 306, 749 A.2d 689, 693 (Conn. Super. Ct. 1999) ("[M]any people are likely to

find unusually intrusive medical examinations, such as psychiatric

and gynecological examinations, uncomfortable or even traumatic"); Delaney, 187 W. Va. at 216, 417 S.E.2d at 907 (noting the "intrusiveness and humiliation associated with a gynecological

examination" of the victims, three young girls).  In this respect,

we find significant B.B.'s discomfort with and eventual

"withdrawal" from Dr. Anderson's gynecological examination and Dr.

Anderson's decision not to continue with the examination. 

	Third, it is important to consider the significant time that

has lapsed since the offense, alleged to have occurred in October

or November 1998.  The examination by Dr. Slupik was first proposed

in January 2000, more than one year after the alleged assault. 

More than two years have since passed.  The lapse of time warrants

serious consideration in light of the disagreement between Drs.

Flannery and Slupik as to whether the evidence of trauma that Dr.

Flannery found in December 1998 still existed even in January 2000

when Dr. Slupik's examination was proposed.

	We also hold that the trial court erred in granting

defendant's motion in limine to bar the State from introducing any evidence or testimony from B.B.'s examining physicians concerning

their examinations of her.  The exclusion of evidence is "an

"extreme sanction[] not favored when an alternative exists" (People v. Weaver, 92 Ill. 2d 545, 561 (1982)), and in our view the trial court imposed that sanction without giving proper consideration to the appropriateness of lesser sanctions.  Due to length

restrictions, our discussion of that issue is unpublished. 

 	[The following material is nNonpublishable material under Supreme Court Rule 23 omitted here.] 

	Under Supreme Court Rule 415(g), if a party fails to comply

with a discovery order in a criminal case, "the court may order

such party to permit the discovery of material and information not

previously disclosed, grant a continuance, exclude such evidence,

or enter such other order as it deems just under the

circumstances."  134 Ill. 2d R. 415(g).  The primary goals of

pretrial discovery are to promote the search for the truth and

eliminate surprise as a trial tactic.  People v. Houser, 305 Ill. App. 3d 384, 393 (1999).  Sanctions are intended to promote the

goals of discovery, not to punish.  See People v. Hawkins, 235 Ill. App. 3d 39, 41 (1992).  The exclusion of evidence does not

contribute to the goal of truth seeking.  Hawkins, 235 Ill. App. 3d at 41.  In fact, the exclusion of evidence is a " 'conscious

mandatory distortion of the fact-finding process.' "  Houser, 305 Ill. App. at 393, quoting Taylor v. Illinois, 484 U.S. 400, 425, 98 L. Ed. 2d 798, 821, 108 S. Ct. 646, 661-62 (1988) (Brennan, J.

dissenting, joined by Marshall & Blackmun, JJ.).  Exclusion of

evidence is "an extreme sanction" and should be imposed only in the

"most extreme situations."  Houser, 305 Ill. App. 3d at 390; People v. Wheeler, 92 Ill. 2d 545, 561 (1982) (exclusion of evidence is "not favorable where an alternative exists").  The nature of a sanction must be commensurate with the discovery violation.  People v. Schambow, 305 Ill. App. 3d 763, 769 (1999).  If sanctions other than exclusion can sufficiently correct and deter discovery

violations, then there is no reason to resort to exclusion of

evidence.  Houser, 305 Ill. App. 3d at 393.  When the sanction of exclusion is imposed by the trial court, that decision will be

closely scrutinized on appeal.  People v. Damico, 309 Ill. App. 3d  203, 212 (2000).     

	Before resorting to the extreme remedy of excluding evidence,

a trial court must consider several factors, including (1) the

effectiveness of a less severe sanction; (2) the materiality of the

testimony to the outcome of the case; (3) prejudice to the other

party caused by the testimony, and (4) evidence of bad faith in the

failure to comply with the discovery order.  See People v. White, 257 Ill. App. 3d 405, 414 (1993).  "The decision to admit or

exclude evidence is left to the sound discretion of the trial judge, and that decision will not be overturned on review absent a

clear abuse of that discretion."  (Emphasis added.)  People v. Beck, 295 Ill. App. 3d 1050, 1061 (1998).

	"In the exercise of sound legal discretion a [trial] court

must consider the alternatives available to it and choose

among them.  When the trial court fails to recognize the

alternatives from which it may choose, it cannot be said that

discretion was in fact exercised."  People v. Foster, 271 Ill. App. 3d 562, 569 (1995).

	Although we mooted this issue by reversing the trial court's

order granting defendant's request for an examination, we note that

the trial court did not exercise sound discretion in determining

which sanction to impose.  It is not that the trial court ignored

critical evidence before it that pertained to one or more of the

relevant factors.  Rather, the flaw in the trial court's decisional

process is the court's refusal to permit the parties to present an

adequate evidential context in which the court could calculate an

appropriate sanction--especially the extreme sanction of excluding

evidence.  The sanction of exclusion should not have been imposed

in this case without a prior hearing to develop evidence relating

to the relevant factors. 

	We address the relevant factors in succession.  As for factor

one--alternatives to exclusion of evidence--it is apparent that,

due to its refusal to conduct an evidentiary hearing, the trial

court did not become adequately informed about the merits of

alternatives to the blanket exclusion it imposed in this case.  As

an alternative to that exclusion, the State proposed that the trial

court bar the testimony of its examining experts but accept the

colposcopic photographs into evidence and permit nonexamining

experts to testify concerning them.  The court acknowledged that

the supreme court in Wheeler barred the State from presenting evidence of rape trauma syndrome through the testimony of an

examining expert.  Although the trial court recognized that the

Wheeler court had expressly noted that the State had the option of introducing evidence of rape trauma syndrome though the testimony

of a nonexamining expert, the trial court rejected the State's

proposed sanction.  Newberry, the court claimed, upheld the dismissal of a charge based on the State's "inability to provide

the physical evidence for the defense expert's examination."  The

present case involved the same situation, the court reasoned,

because the State did not produce "the young child" who was the

"physical evidence" in this case to the defense.  Finally, the

trial court suggested that section 115--6 of the Code contains a

sanction "broader than the Wheeler sanction" that is precedent not only for excluding the State's examining experts but also barring

the testimony of nonexamining experts concerning the colposcopic

photographs. 

	The court evidently believed that Newberry, Wheeler and section 115--6 disposed of the State's proposal as a matter of law

and hence eliminated any need for an evidentiary hearing to

determine the appropriateness of that proposal.  We disagree. 

These authorities are distinguishable.  In Newberry, defendant was arrested and found with a substance that resembled cocaine.  When

a field test on the substance tested negative for the presence of

cocaine, the defendant was charged with possession of a look-alike

substance.  Following a subsequent laboratory test on the substance

that reached a result contrary to the field test, defendant was

charged with possession of a controlled substance.  The defendant

filed a written motion to examine all tangible objects seized from him.  One year later the prosecution informed the defendant that

the substance had been destroyed through police negligence. 

Newberry, 166 Ill. 2d at 311-313.  The supreme court held that dismissal of the charges was mandated by due process and was an

appropriate discovery sanction under Supreme Court Rule 415 (134

Ill.2d R. 415(g)(i)).  The court rejected the State's suggestion

that the defendant was "not without recourse because he can still

assail the State's test results by introducing evidence and by

cross-examining the State's experts about the procedures they

followed."  Newberry, 166 Ill.2d at 316-17.  The court acknowledged these options but dismissed them as offering "illusory" relief

because

	"[w]hatever the actual reliability of the tests performed in

the lab *** [citation] the laboratory analysis of the evidence

will carry great weight with the jury [citation], and the jury

will undoubtedly give such an analysis more deference than the

initial field test procedures, which are inherently less

precise and controlled." Newberry, 166 Ill. 2d at 317.

	We disagree with the trial court that Newberry controls here and precludes the sanction proposed by the State.  Under the

State's proposal there is no fear of jury deference toward an

examining expert's opinion because that proposal does not allow for

the opinions of such experts.  The colposcopic photographs that the

State seeks to admit are opinion-neutral; each side would be

permitted to present the opinions of nonexamining experts as to what the photographs depict.  Of course, whether the photographs

are of a quality sufficient for a nonexamining physician to use

them as the basis for an opinion as to trauma is unclear from the

record. 	

	The trial court's application of Wheeler also was mistaken.  In Wheeler, the defendant was charged with aggravated criminal sexual assault. Before trial, he learned that the State intended to

introduce expert testimony that the alleged victim suffered from

rape trauma syndrome.  Such testimony was admissible under section

115--7.2 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115--7.2

(now 725 ILCS 5/115--7.2 (West 1998))).  The defendant moved to

compel the victim to submit to an examination by his own expert,

but section 115--7.1 of the Code (Ill.Rev.Stat.1989, ch. 38, par.

115--7.1 (now 725 ILCS 5/115--7.1 (West 1998)) barred the trial

court from "order[ing] or requir[ing] a witness who is the victim

of an alleged sex offense to submit to or undergo either a

psychiatric or psychological examination."  At trial, the State

called its expert, who had examined the victim personally. The

defendant appealed his conviction, arguing that sections 115--7.1

and 115--7.2, as they were applied to him, denied him due process

of law. The supreme court agreed.  The court ruled that, although

the defendant was free to call a nonexamining expert, the State's

ability to call an examining expert gave it "a clear advantage" in

its effort to prove that the victim suffered from rape trauma

syndrome. Wheeler, 151 Ill. 2d at 311. Thus, the defendant's trial was "fundamentally unfair."  Wheeler, 151 Ill. 2d at 311.  The court concluded that, unless the victim consented to an examination

by the defendant's expert, the State could not call an examining

expert of its own.  Wheeler, 151 Ill. 2d at 312.  The court expressly noted, however, that the State "may still introduce rape

trauma evidence through the opinions of nonexamining experts." 

Wheeler, 151 Ill. 2d at 312.      

	Thus, Wheeler expressly recognized the sanction proposed by the State in this case--that is, excluding the testimony of

examining physicians.  The trial court referenced this fact but

evidently ruled out the alternative in light of the parallels it

perceived between this case and Newberry.  As we showed above, Newberry is distinguishable.  We conclude, then, that the court erroneously believed that Newberry and Wheeler rendered the State's proposed sanction inappropriate as a matter of law.

	The court's interpretation of section 115--6 is another

indication that it gave inadequate consideration to the

availability of alternatives to the exclusion requested by the

defense.  Section 115--6 of the Code provides that, if a defendant

indicates that he might raise the defense of insanity or of an

intoxicated or drugged condition, the court must grant the State's

motion to compel the defendant to submit to various examinations. 

725 ILCS 5/115--6 (West 1998).  The section further provides: 

	"The refusal of the defendant to cooperate in such

examinations shall not automatically preclude the raising of the aforesaid defenses but shall preclude the defendant from

offering expert evidence or testimony tending to support such

defenses if the expert evidence or testimony is based upon the expert's examination of the defendant.  If the Court, after a hearing, determines to its satisfaction that the defendant's

refusal to cooperate was unreasonable it may, in its sound

discretion, bar any or all evidence upon the defense

asserted."  725 ILCS 5/115--6 (West 1998).  (Emphasis added.) 

As the appellate court observed in In re Detention of Kortte, 317 Ill. App. 3d 111, 117 (2000), when a defendant reasonably refuses

to comply with the State's request for an examination, section 115-

-6 "prevents [the defendant] from introducing only that evidence

that the State is unable to introduce itself, i.e., the testimony of an examining expert.  Thus, no party has an evidentiary

advantage; both may call examining experts, or both may call

nonexamining experts."  The trial court was incorrect in stating,

without qualification, that section 115--6 permits a sanction

greater than the Wheeler sanction.  Section 115--6 permits a trial court to go beyond the Wheeler sanction (that is, beyond the exclusion of testimony from examining experts) only where the

defendant's refusal to comply with the State's request for an

examination is unreasonable.  If that refusal is reasonable,

however, the available sanction is more restrictive; consistent

with the sanction contemplated in Wheeler, section 115--6 insures in that situation only that neither party is put at the evidentiary disadvantage of having only the testimony of nonexamining experts

to pit against the testimony of the other party's examining

experts.  In this case, the trial court did not find, nor was there

even any allegation, that B.B.'s refusal to comply with the

defense's request for an independent physical examination was

unreasonable.  Thus, both Wheeler and section 115--6 are consistent with the sanction the State proposed, that is, excluding the

testimony of examining experts but permitting nonexamining experts

to testify concerning the colposcopic photographs.  We conclude,

then, that because the trial court erred in believing that the

State's proposed remedy was unavailable as a matter of law, it

further erred in denying the State's request for an evidentiary

hearing where the court might have explored the fairness of

alternatives to the extreme sanction of excluding the colposcopic

photographs together with the testimony of all physicians who

examined B.B.

  	As for the second factor, the court did not have adequate evidence before it concerning the materiality of the evidence it

excluded.  Appreciating the materiality of evidence requires, of

course, an appreciation of the elements of the crime charged. 

Lopez is charged under section 12--16(c)(1)(i) of the Code with

committing "an act of sexual conduct with a victim who was under 9

years of age when the act was committed."  Section 12--12(e) of the

Code defines "sexual conduct," in relevant part, as "any

intentional or knowing touching  or fondling by the victim or the accused, either directly or through clothing, of the sex organs,

anus or breast of the victim or the accused *** for the purpose of

sexual gratification ***."  The specific allegation in the indictment

is that Lopez "knowingly fondled the vaginal area of [B.B.]" for

his sexual gratification. 

	As for those indications of improper sexual contact relevant

to this charge, Dr. Anderson found a tear at B.B.'s labial origin

as well as scar tissue surrounding B.B.'s vagina.  However, since

he could not obtain an adequate view of B.B.'s hymen, he could not

definitively conclude that her vulva had been traumatized.  Based

on her finding of partial obliteration of B.B.'s hymen, Dr.

Flannery suspected "trauma most likely consistent with digital

penetration."  Dr. Flannery took photographs of B.B.'s vaginal

region during the exam.  In her affidavit, Dr. Slupik questions

whether these photographs "conclusively" show partial obliteration

of the hymen. 

	Having denied the request for an evidentiary hearing at which

the parties would have developed and tested the views stated in the

physicians' medical reports and affidavit, the trial court left

unexplored vital issues about the force of the excluded evidence. 

As regards the photographs, we do not see how the trial court could

have reached a reasoned opinion as to whether the photographs

presented adequate views of B.B.'s hymen or, provided they were

adequate, whether they actually showed a partial obliteration of

the hymen.  

	Its refusal to permit the physicians to testify also left the

trial court with an incomplete understanding of their opinions. 

For example, without such testimony, the trial court could not have

reached a substantiated conclusion as to whether a finding of

trauma could be based on evidence other than a partial obliteration

of the hymen.  The debate between Drs. Flannery and Slupik was

limited to whether this obliteration existed.  Dr. Anderson,

however, also found scar tissue in B.B.'s labial region.  Because

the State was given no occasion to present Dr. Anderson's

testimony, the trial court did not learn what kind of relation (if

any) there was between the alleged scar tissue and the alleged

hymenal tear.  The court also did not learn whether the scar tissue

as described by Dr. Anderson could by itself support a finding that

B.B.'s vulva had been traumatized.  

	As for the third factor--the prejudice to the defense of the

excluded evidence--the trial court properly was concerned that the

fairness of the trial might be compromised if the State was

permitted to present the testimony of the physicians who examined

B.B., whereas, because of B.B.'s refusal to submit to a defense

examination, Lopez had no examining witnesses to present.  However,

as noted above, the court did not adequately consider whether the

prejudice would have been eliminated or adequately decreased by

permitting the introduction of the photographs and excluding only

the testimony of examining physicians.  

	As for the fourth and final factor--the bad faith of the

prosecution in failing to comply with the discovery order--it

appears the trial court may not have acknowledged the reason why

B.B. did not undergo a defense examination as ordered.  The trial

court stated that the "State has shown that they are able, and

willing, to present the young child, the physical evidence, to

State's experts but not to a defense expert."  There are two

difficulties with this statement.  First, in describing Drs.

Anderson and Flannery as the "State's experts" the court seems to

imply that the State arranged for the examinations of B.B. by these

physicians.  Further, it is not clear whether the court is saying

that the State was not willing to comply with the court's order for

an examination by Dr. Slupik.  

	The record is unclear as to the extent of government

involvement with B.B. and her family at the time of her

examinations with Drs. Anderson and Flannery.  In his report, Dr.

Anderson noted that he spoke with an agent of the Department of

Children and Family Services after his examination of B.B. and that

the agent indicated that B.B. would be sent to the "children's

center."  Dr. Anderson also noted that he encouraged B.B.'s family

to contact the local police.  There is no indication whether or not

any law enforcement agency was involved with B.B.'s family at the

time of Dr. Anderson's examination.  Dr. Flannery noted that B.B.

was referred to her by the Du Page County Children's Center, but

there is no indication in her report that any law enforcement agency recommended or initiated the examination or that any such

agency was even involved with the family at the time of the

examination.  

	It also appears to us that the State endeavored to follow the

court's order for a defense examination and that it was the

family's refusal to produce B.B. that prevented the examination

with Dr. Slupik.  Accordingly, the trial court has no basis for

suggesting that the State produced B.B. for its own experts and

then withheld her in bad faith from other experts.  

	We conclude, then, that the trial court imposed the extreme

sanction of a blanket exclusion without giving due consideration to

the proper factors.  Erroneously believing that the issue of the

appropriate sanction was settled as a matter of law by Newberry, Wheeler, and section 115--6, the court did not permit the parties to present evidence on the issue.  As it happens, the issue is

quite fact-bound and warrants further consideration in the context

of an evidentiary hearing.    

	[The preceding material is nonpublishable under Supreme Court Rule 23.] 

	For the reasons provided above, the order of the circuit court of Du Page County granting defendant's motion for an independent

physical examination of the alleged victim is vacated, and the

cause is remanded for proceedings consistent with this decision.  

	Order vacated; cause remanded with directions.  

	GEIGER and GROMETER, JJ., concur.