{ "id": 2183264, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ISMAEL LOPEZ, Defendant-Appellee", "name_abbreviation": "People v. Lopez", "decision_date": "2002-03-21", "docket_number": "No. 2\u201400\u20140747", "first_page": "563", "last_page": "575", "citations": [ { "type": "official", "cite": "328 Ill. App. 3d 563" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "92 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3097208 ], "year": 1982, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0545-01" ] }, { "cite": "749 A.2d 689", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1999, "pin_cites": [ { "page": "693", "parenthetical": "\"[M]any people are likely to find unusually intrusive medical examinations, such as psychiatric and gynecological examinations, uncomfortable or even traumatic\"" } ], "opinion_index": 0 }, { "cite": "46 Conn. Supp. 301", "category": "reporters:state", "reporter": "Conn. Supp.", "case_ids": [ 1128068 ], "year": 1999, "pin_cites": [ { "page": "306", "parenthetical": "\"[M]any people are likely to find unusually intrusive medical examinations, such as psychiatric and gynecological examinations, uncomfortable or even traumatic\"" } ], "opinion_index": 0, "case_paths": [ "/conn-supp/46/0301-01" ] }, { "cite": "166 Cal. Rptr. 293", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1980, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "108 Cal. App. 3d 117", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6044932 ], "year": 1980, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/108/0117-01" ] }, { "cite": "801 F.2d 893", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10549729 ], "year": 1986, "pin_cites": [ { "page": "899-907", "parenthetical": "holding that visual examination of unclothed alleged minor victim by child protection worker implicated fourth amendment concerns" } ], "opinion_index": 0, "case_paths": [ "/f2d/801/0893-01" ] }, { "cite": "387 U.S. 523", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338823 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "530" }, { "page": "936" }, { "page": "1732" } ], "opinion_index": 0, "case_paths": [ "/us/387/0523-01" ] }, { "cite": "376 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "471", "parenthetical": "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\"" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527766 ], "year": 1989, "pin_cites": [ { "page": "8", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0001-01" ] }, { "cite": "553 A.2d 1059", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7897018 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "1062", "parenthetical": "\"The practice of granting physical examinations of criminal witnesses must be approached with utmost judicial restraint and respect for an individual's dignity\"" }, { "page": "1062" } ], "opinion_index": 0, "case_paths": [ "/a2d/553/1059-01" ] }, { "cite": "187 W. Va. 212", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8575427 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "216" }, { "page": "907" }, { "page": "216" }, { "page": "907", "parenthetical": "noting the \"intrusiveness and humiliation associated with a gynecological examination\" of the victims, three young girls" } ], "opinion_index": 0, "case_paths": [ "/w-va/187/0212-01" ] }, { "cite": "852 S.W.2d 216", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9997792 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "221-22" }, { "page": "222" }, { "page": "222" }, { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/sw2d/852/0216-01" ] }, { "cite": "604 A.2d 89", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 301129, 301213 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nj/127/0248-01", "/nj/127/0249-01" ] }, { "cite": "127 N.J. 249", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 301213 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nj/127/0249-01" ] }, { "cite": "384 N.W.2d 617", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10657656 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nw2d/384/0617-01" ] }, { "cite": "808 P.2d 351", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10370855 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "355-56" } ], "opinion_index": 0, "case_paths": [ "/p2d/808/0351-01" ] }, { "cite": "120 Ill. App. 3d 584", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594182 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "587" }, { "page": "587" }, { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0584-01" ] }, { "cite": "49 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911902 ], "weight": 4, "year": 1971, "pin_cites": [ { "page": "82" }, { "page": "81" }, { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0078-01" ] }, { "cite": "191 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229724 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-2d/191/0127-01" ] }, { "cite": "166 Ill. 2d 310", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198912 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0310-01" ] }, { "cite": "151 Ill. 2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291483 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0298-01" ] } ], "analysis": { "cardinality": 1186, "char_count": 31997, "ocr_confidence": 0.776, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.2869120941027836 }, "sha256": "d816ccf49fdd3611db760f22dc27e28755da713f7dfbb8b49c8847b81bdc13e1", "simhash": "1:9acbf720b66290e1", "word_count": 5155 }, "last_updated": "2023-07-14T17:11:21.532369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ISMAEL LOPEZ, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered, the opinion of the court:\nDefendant, Ismael Lopez, was charged under section 12\u2014 16(c)(l)(i) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12 \u2014 16(c)(l)(i) (West 1998)) with aggravated criminal sexual abuse. Specifically, the indictment alleged that defendant \u201cknowingly fondled the vaginal area of [B.B.] for the purpose of the sexual arousal of the defendant.\u201d On defendant\u2019s motion, the trial court ordered the State to produce B.B. for a physical examination by a physician retained by the defense. The victim\u2019s 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.\u2019s examining physicians concerning their physical examinations of her. Denying the State\u2019s request for a hearing, the trial court granted the motion. We vacate the order granting defendant\u2019s motion for an independent physical examination of B.B. and remand the cause.\nBACKGROUND\nSuspecting that B.B. was being sexually abused, her grandmother made an appointment with B.B.\u2019s physician, Dr. E. Anderson. B.B. was 20 months old at that time. In a report dated December 1, 1998, Dr. Anderson noted \u201can adhesion of the labia with a synechial scar of the tissue touching together, covering the opening of the [vagina] and obscuring the hymen.\u201d The labia was \u201cmoderately red.\u201d Dr. Anderson further stated, \u201cA careful exam of the labial origin post to this shows a small false passage, suggestive of partial tearing.\u201d Dr. Anderson was not able to inspect B.B.\u2019s hymen adequately. When he attempted to separate B.B.\u2019s labia or view her vagina, B.B. reported discomfort and then \u201cwith[drew] from the situation.\u201d Dr. Anderson\u2019s conclusion was \u201csuspected sexual abuse based on the apparent scar tissue surrounding the vagina.\u201d He explained:\n\u201cI 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 information] 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.\u201d\nDr. Meghan Flannery examined B.B. soon after Dr. Anderson\u2019s examination. She examined B.B. in the \u201cfrog leg\u201d and \u201cknee/chest\u201d positions and prepared 17 colposcopic photographs of B.B.\u2019s vaginal region. In her notes of December 3, 1998, Dr. Flannery reported:\n\u201cThin hymenal rim with partial obliteration of the rim posteriorly. Edges of the hymen are thickened. Notched areas at approximately the two o\u2019clock and ten o\u2019clock positions. Widened elongated hymen. Exam suspicious for trauma most likely consistent with digital penetration.\u201d\nIn 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\u2019s 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.\nIn 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\u2019s expert, Dr. Ramona Slupik. In its motion, the defense asserted that Dr. Slupik was \u201cunable to concur in the findings of Dr. Flannery\u201d and that Dr. Slupik believed \u201cthat 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.\u201d The defense submitted an affidavit of Dr. Slupik, in which she stated in relevant part:\n\u201cI 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\u2019clock could be obtained by various other exam techniques, including a change of position.\nA 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 \u2018frog-leg\u2019 position) as well as in the prone position (\u2018knee chest\u2019). 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.\nFurther, \u2018findings\u2019 which were allegedly present during Dr. Flan-nery\u2019s exam 14 months ago should still be present now, if they are specific for sexual abuse. A female hymen does not re-grow, regenerate, or re-attach if truly traumatized by blunt force penetrating trauma. Findings that are specific for sexual abuse will be permanent.\u201d\nAt the hearing on the motion to produce B.B. for examination by Dr. Slupik, the State indicated that it had spoken with \u201cour physician who did the examination\u201d (presumably Dr. Flannery) and that \u201c[s]he has proceeded by proffer.\u201d 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\u2019s, the prosecutor replied, \u201cI don\u2019t believe we need [sic] at this point because I believe it is by stipulation, I am giving this by way of proffer.\u201d\nThe State then set forth Dr. Flannery\u2019s points of contention with Dr. Slupik\u2019s 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\u2019s motion and Dr. Slupik\u2019s affidavit both \u201coverstated\u201d Dr. Flannery\u2019s description of the trauma. The State explained that Dr. Flannery did not, as the defense motion represented, conclude that there was medical evidence \u201cconsistent with digital penetration,\u201d but only that B.B.\u2019s genitalia was \u201csuspicious for trauma most likely consistent with digital penetration.\u201d There is a \u201csignificant difference\u201d 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 \u201cconclusively]\u201d showed partial obliteration of the hymen. The defense added that the State\u2019s \u201cexpert is agreeing that you cannot see in the photographs everything that she specifically saw in the examination.\u201d In response to the State\u2019s reference to the defense\u2019s delay in requesting the additional physical examination, the defense attorney advised the court that her heavy caseload was partially responsible for the delay.\nThe trial court granted the defense\u2019s 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\u2019s observation during argument that Dr. Flannery would not be permitted to testify at trial regarding her conclusions because \u201c[she] can\u2019t even testify as to a speculation.\u201d\nThe State filed a motion to reconsider. Without hearing argument from the parties, the court denied the motion for \u201creasons stated of record.\u201d When B.B.\u2019s family refused to produce her for the examination, the defense filed a motion to dismiss the indictment for the State\u2019s failure to produce B.B. The defense argued in its motion that Dr. Slupik\u2019s examination \u201ccould clearly exonerate\u201d defendant and that defendant\u2019s \u201cdue 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.\u201d\nAt a hearing to schedule a deadline for the State\u2019s response, the State requested an evidentiary hearing for the parties to present the testimony of their experts. The State asserted that the court needed \u201cto hear everything involved in this examination\u201d in order to determine the appropriate sanction. Asserting that it considered the issue of the appropriate sanction \u201ca simple legal issue,\u201d the court scheduled a future hearing for legal argument only.\nAt the parties\u2019 oral argument on the issue on May 3, 2000, the trial court noted that People v. Wheeler, 151 Ill. 2d 298 (1992), \u201cgive[s] us some significant guidance in terms of evaluating what\u2019s appropriate consistent with the defendant\u2019s right as well as with the victim\u2019s rights and the victim\u2019s family\u2019s rights.\u201d 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.\nAs 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 ev-identiary 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 \u201cbased 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.\u201d\nThe parties agreed that it would be wiser from a procedural standpoint to reinstate the indictment and have the court address the defense\u2019s 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.\nAt 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 \u201cbalanced the discovery due process interests of the defendant against the privacy interests of the victim.\u201d 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 \u201cnonphysically invasive.\u201d 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 nonexamin-ing expert concerning the photographs would have the physical examinations as its \u201cdirect source.\u201d\nThe State argued in response that the court\u2019s previous balancing of the respective interests was not adequate because the court \u201cdid not take into account all of the evidence that [the State] intend[ed] or attempted to present.\u201d The State pointed out that, based on her examination of the photographs, Dr. Slupik\u2019s only disagreement with Drs. Anderson and Flannery was with respect to their finding that B.B.\u2019s 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.\u2019s 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.\nThe court denied the State\u2019s request for an evidentiary hearing and granted the defense\u2019s motion in limine. The court\u2019s written order provided in relevant part:\n\u201c4. 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 \u2018evidence\u2019 would be more than potentially useful. In light of the incomplete or incondusive [szc] findings of the State\u2019s two experts and as it could determine whether or not \u2018findings\u2019 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)].)\n5. That the State\u2019s position is that the defense, to ensure a fair trial, can simply review the State\u2019s medical records and findings and cross-examine the State\u2019s two experts. The Supreme Court in People vs. Newberry, and common sense, recognizes that \u2018while these opportunities exist, the relief they offer is illusory.\u2019 [Newberry, 166 Ill. 2d at 317.] The Supreme Court also recognized in People vs. Wheeler[, 151 Ill. 2d at 309], \u2018while 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 [szc] a better position to render an opinion than is an expert who has not done so.\u2019\n6. The Court in People vs. Newberry was concerned with the examination of physical evidence unlike People vs. Wheeler which dealt with a psycho therapist\u2019s [szc] interview with a rape victim. The People vs. Wheeler court barred the State\u2019s 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\u2019s 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\u2019s experts but not to a defense expert.\n7. That issues of the defendant\u2019s due process right to a fundamentally fair trial, of the effective assistance of counsel, and of the right of confrontation (See 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.\u201d\nThe court excluded \u201cthe 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.\u201d In its comments at the hearing following the parties\u2019 arguments, the court suggested that section 115 \u2014 6 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 \u2014 6 (West 1998)) contains a sanction \u201cbroader than the Wheeler sanction\u201d and is precedent for excluding the State\u2019s evidence as requested by the defense. The court also remarked that it had previously granted the defense\u2019s request for examination because the request was \u201creasonable\u201d and the examination would be \u201crelevant\u201d and \u201cenlightening to the court.\u201d\nDECISION\nIn People v. Glover, 49 Ill. 2d 78, 82 (1971), our supreme court held that a trial court has \u201cjurisdiction 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.\u201d The defendant in Glover sought both a psychiatric examination of the complaining witness to investigate her alleged history of \u201c \u2018emotional instability and immaturity\u2019 \u201d and an ophthalmological examination \u201cto determine her ability to see and identify the defendant.\u201d 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\u2019s denial of the motion for the physical examination, providing no analysis but only the summary holding that \u201cthe record reflects no compelling reason\u201d for the examination. Glover, 49 Ill. 2d at 82.\nSeveral 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 \u201cwhether [her] hymen was intact.\u201d Visgar, 120 Ill. App. 3d at 587. We upheld the trial court\u2019s 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 \u201cwould not be necessary for any purpose.\u201d Visgar, 120 Ill. App. 3d at 587.\nWe note that Visgar does not dispose of the defendant\u2019s request in this case. Defendant is charged under section 12 \u2014 16(c)(1)(i) of the Criminal Code with committing \u201can act of sexual conduct with a victim who was under 13 years of age when the act was committed.\u201d 720 ILCS 5/12 \u2014 16(c)(1)(i) West 1998). Section 12 \u2014 12(e) of the Criminal Code (720 ILCS 5/12 \u2014 12(e) (West 1998)) defines \u201csexual conduct,\u201d in relevant part, as \u201cany 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.\u201d The specific allegation in the indictment is that Lopez \u201cknowingly fondled the vaginal area of [B.B.]\u201d for his sexual gratification. Although it has not formally alleged that defendant penetrated B.B.\u2019s vagina, the State has expressed an intention to introduce evidence of penetration, i.e., that B.B.\u2019s 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\u2019s proposed evidence of penetration.\nWe 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\u2019s motion. First, there is nothing in the record substantiating Dr. Slupik\u2019s conclusory observation that an examination of B.B.\u2019s vaginal area is necessary because the colposcopic photographs present views of B.B.\u2019s hymen that are inadequate to demonstrate conclusively whether or not there is a partial obliteration of B.B.\u2019s hymen. The State made a vague concession at the hearing on the motion that the photographs do not show \u201ceverything\u201d 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\u2019s rationale for the examination is compelling.\nSecond, 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\u2019s finding of a partial obliteration of B.B.\u2019s hymen. However, Dr. Slupik does not address the findings of Dr. Anderson. Although, due to B.B.\u2019s discomfort, Dr. Anderson was unable to inspect her hymen, he did find \u201capparent scar tissue surrounding the vagina,\u201d specifically, \u201can adhesion of the labia with a synechial scar of the tissue touching together, covering the opening of the [vagina] and obscuring the hymen.\u201d Dr. Anderson noted that the inspection of the hymen would provide \u201cadditional useful info [rmation] for a definitive [diagnosis].\u201d He immediately added, however, that \u201cthe synechia is suggestive of previous trauma and raw edges coming together, suggestive of trauma.\u201d Dr. Slupik did not express an opinion on the accuracy of Dr. Anderson\u2019s 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\u2019s examination apparently would challenge only one of two apparently independent indications of trauma for which the State has produced evidence, we cannot regard defendant\u2019s request for the examination as \u201ccompelling.\u201d 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\u2019s request for an examination.\nGiven the gravity of the criminal charge in this cas\u00e9 and the seriousness of the interests implicated in defendant\u2019s 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\u2019s 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\u2019s remarks suggest it did not evaluate defendant\u2019s request in accordance with the applicable standard. In its order granting the defense\u2019s 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 \u201cclear need\u201d for the examination. In its remarks at the hearing on the motion in limine, the court commented that the defense\u2019s request for the examination was \u201creasonable\u201d and that the examination would yield evidence that is \u201crelevant\u201d and \u201cenlightening.\u201d A \u201cclear\u201d need is not the same as a \u201ccompelling\u201d need nor is a \u201creasonable\u201d request the same as a \u201ccompelling\u201d request.\nWe 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 \u201ccompelling need\u201d test to a defendant\u2019s request for an independent physical examination of the complaining witness in a sex offense case. A number of state courts have adopted a \u201ccompelling need\u201d or \u201ccompelling reason\u201d 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\u2019s 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 \u201ccompelling need\u201d must be shown for the examination. We believe trial courts should be provided further guidance on this issue.\nWe agree with the Barone court that the \u201ccritical inquiry\u201d involved in applying the \u201ccompelling need\u201d test is \u201cwhether 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\u2019s privacy, including the prospect that undergoing a physical examination might be used for harassment of a prosecuting witness\u201d (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 \u201cthat the highly intrusive nature of a physical exam,\u201d especially (we note) a gynecological examination, \u201craises the same concerns about emotional trauma, embarrassment, and intimidation to the child victim that are present with psychological examinations\u201d (Barone, 852 S.W.2d at 222; see also State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989) (\u201cThe practice of granting physical examinations of criminal witnesses must be approached with utmost judicial restraint and respect for an individual\u2019s dignity\u201d)). We approve of the approach, set forth in Barone and other cases, under which a trial court confronted with a defendant\u2019s request for an independent physical examination of the complaining witness in a sex offense case must consider (1) the complainant\u2019s 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\u2019s 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\u2019s 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 eviden-tiary hearing is necessary in this case for an adequate consideration of defendant\u2019s motion for an independent examination of B.B.\nWhile the trial court must consider all of the above factors in addressing defendant\u2019s motion, we note that certain factors in particular must be given greater attention on remand than they were given previously. First, in addressing defendant\u2019s motion, the trial court gave inadequate consideration to the rights of B.B. We find inappropriate the trial court\u2019s remark that the body of B.B., \u201cthe young child,\u201d is \u201cphysical evidence.\u201d 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, \u201cPowder does not have dignity, and courts are rightly solicitous when a human being\u2019s privacy faces invasion\u201d). Evidence does not have an interest in privacy. A person, on the other hand, does \u2014 even when she is not an alleged perpetrator but an alleged victim of crime. Section 4(a)(1) of the Rights of Crime Victims and Witnesses Act (725 ILCS 120/4(a)(1) (West 1998)) provides that crime victims have \u201c[t]he right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.\u201d The privacy interests of complainants have constitutional protection as well. \u201cIt 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.\u201d 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) (\u201cIt 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.\u201d 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.\nSecond, 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 (1999) (\u201c[M]any people are likely to find unusually intrusive medical examinations, such as psychiatric and gynecological examinations, uncomfortable or even traumatic\u201d); Delaney, 187 W. Va. at 216, 417 S.E.2d at 907 (noting the \u201cintrusiveness and humiliation associated with a gynecological examination\u201d of the victims, three young girls). In this respect, we find significant B.B.\u2019s discomfort with and eventual \u201cwithdrawal\u201d from Dr. Anderson\u2019s gynecological examination and Dr. Anderson\u2019s decision not to continue with the examination.\nThird, 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\u2019s examination was proposed.\nWe also hold that the trial court erred in granting defendant\u2019s motion in limine to bar the State from introducing any evidence or testimony from B.B.\u2019s examining physicians concerning their examinations of her. The exclusion of evidence is an \u201cextreme sanction! ] not favored when an alternative exists\u201d (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.\nFor the reasons provided above, the order of the circuit court of Du Page County granting defendant\u2019s motion for an independent physical examination of the alleged victim is vacated, and the cause is remanded for proceedings consistent with this decision.\nOrder vacated; cause remanded with directions.\nGEIGER and GROMETER, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Margaret M. Healy, Assistant State\u2019s Attorney, and Martin E Moltz and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "G. Joseph Weller and Dev A. Parikh, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ISMAEL LOPEZ, Defendant-Appellee.\nSecond District\nNo. 2\u201400\u20140747\nOpinion filed March 21, 2002.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Margaret M. Healy, Assistant State\u2019s Attorney, and Martin E Moltz and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nG. Joseph Weller and Dev A. Parikh, both of State Appellate Defender\u2019s Office, of Elgin, for appellee." }, "file_name": "0563-01", "first_page_order": 581, "last_page_order": 593 }