Class Denounces ‘Court-Ordered Rape’

CHARLESTON, W.Va. (CN) - West Virginia unconstitutionally requires sexual assault victims to submit to body cavity exams at the behest of their assailants - "court-ordered rape" - a woman claims in a federal class action.

Quincy Gray McMichael Lewis sued the West Virginia Supreme Court of Appeals, asking that the state be enjoined from enforcing the law.

"In 2009, the West Virginia Supreme Court of Appeals issued a decision authorizing state criminal courts to order private third-party victims in criminal sexual violence matters to submit to non-consensual penetrating pelvic examinations, at the behest of the accused, to enable the accused to conduct 'discovery' of the condition of the victim's internal genitalia. State ex rel. J.W. v. Knight, 679 S.E.2d 617 (W.Va. 2009) (hereafter 'J.W .')," the complaint states. "This ruling is broadly applicable to adult and child victims and presumably also authorizes forced examinations of male victims' anal cavities."

McMichael Lewis claims the law violates her constitutional rights and those of other potential victims of sexual violence by subjecting them to "court-ordered rape."

She claims the law disproportionately affects women and makes victims less likely to report sex crimes to police.

"Subjecting a victim of penetrating sexual violence to a court-ordered re-enactment of the crime shocks the conscience," the complaint states. "Even if such an order were not enforced by means of forced submission, the issuance of such an order under threat of sanction for noncompliance shocks the conscience.

"A state court judge in a criminal matter lacks authority to order a private third-party victim of penetrating sexual violence to submit to a genital examination, at the behest of the accused, for the purpose of conducting 'discovery' of the interior of the victim's genitalia.

"Private persons who participate in the criminal justice system as victims of penetrating sexual violence do not stand in privity with the state and lack formal party standing to be heard and/or to seek redress for injuries sustained in connection with criminal justice proceedings. The prosecutor cannot ethically advance a victim's personal or constitutional legal interests. ...

"The accused in a criminal matter has no constitutional or other right to seek court-ordered 'discovery' of the interior of his victim's genitalia.

"Internal injuries are rarely present in the genitalia of victims of penetrating sexual crimes. A leading study of pregnant adolescents found that almost all study subjects had intact hymens despite sexual penetration. ...

"If J.W. is not enjoined from enforcement, victims of penetrating sexual crimes in West Virginia will be forced to submit to forcible sexual penetration by court order, or forced to choose between submission and sanctions for non-compliance, such as contempt of court, suppression of evidence, dismissal of charges and/or a jury instruction undermining the victim's credibility for noncompliance.

"If J.W. is not enjoined from enforcement, victims of penetrating sexual crimes in West Virginia will be deterred from reporting rape and participating in the criminal justice system. In a recent survey of 20 female West Virginia residents, nearly 90 percent said the risk of being ordered to submit to a forced vaginal exam at the behest of the accused would affect their willingness to report rape and participate in the criminal justice system. When asked to rate their reluctance on a scale of 1 to 10, with 10 being the highest, the average response was 7.8, with a median response of 9. After J.W. was decided, the National District Attorneys' Association (NDAA) issued a statement in connection with federal litigation filed by the victim in J.W. in an attempt to prevent enforcement of that state court ruling against her and similarly situated others. The NDAA expressed grave concern that the ruling set a dangerous precedent that would significantly undermine their efforts to prosecute and prevent sexual violence.

"Because the vast majority of victims of sex crimes are female, failure to enjoin enforcement of J .W. will disproportionately harm females by inhibiting effective legal response." (Citations omitted).

McMichael Lewis seeks class certification, an injunction, and wants the law declared unconstitutional.

She is represented by Wendy Murphy with New England Law, of Boston, and Brandon Johnson with Stroebel & Johnson, of Lewisburg, W. Va.

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