People v. Lopez

Case Date: 03/21/2002
Court: 2nd District Appellate
Docket No: 2-00-0747 Rel

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) (720ILCS 5/12--16(c)(1)(i) (West 1998)) with aggravated criminal sexualabuse. Specifically, the indictment alleged that defendant"knowingly fondled the vaginal area of [B.B.] for the purpose ofthe sexual arousal of the defendant." On defendant's motion, thetrial court ordered the State to produce B.B. for a physicalexamination by a physician retained by the defense. The victim'sfamily refused to produce her for the examination. Defendant thenmoved for an order barring the State from introducing any evidenceor testimony from B.B.'s examining physicians concerning theirphysical examinations of her. Denying the State's request for ahearing, the trial court granted the motion. We vacate the ordergranting defendant's motion for an independent physical examinationof B.B. and remand the cause.

BACKGROUND

Suspecting that B.B. was being sexually abused, hergrandmother made an appointment with B.B.'s physician, Dr. E.Anderson. B.B. was 20 months old at that time. In a report datedDecember 1, 1998, Dr. Anderson noted "an adhesion of the labia witha synechial scar of the tissue touching together, covering theopening of the [vagina] and obscuring the hymen." The labia was"moderately red." Dr. Anderson further stated, "A careful exam ofthe labial origin post to this shows a small false passage,suggestive of partial tearing." Dr. Anderson was not able toinspect B.B.'s hymen adequately. When he attempted to separateB.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 tissuesurrounding the vagina." He explained:

"I cannot 100% [rule out] that this is a developmentalanomaly, but due to the tear post, I feel this probably istraumatic. Certainly, visualization of the hymen wouldprovide additional useful info[rmation] for a definitive[diagnosis], although the synechia is suggestive of previousscarring and raw edges coming together, suggestive of trauma.*** Due to the swelling of the tissues, I should note that itwas difficult to decide whether the tissue adhesion was withthe labia minora or with the actual [vaginal] wall, althoughit would appear to be most likely labial."

Dr. Meghan Flannery examined B.B. soon after Dr. Anderson'sexamination. She examined B.B. in the "frog leg" and "knee/chest"positions and prepared 17 colposcopic photographs of B.B.'s vaginalregion. In her notes of December 3, 1998, Dr. Flannery reported:

"Thin hymenal rim with partial obliteration of the rimposteriorly. Edges of the hymen are thickened. Notched areasat approximately the two o'clock and ten o'clock positions. Widened elongated hymen. Exam suspicious for trauma mostlikely consistent with digital penetration."

In February 1999, the State gave the defense the reports ofDrs. Flannery and Anderson but not the photographs Dr. Flannery hadtaken during her examination. Although Dr. Flannery's reportindicated 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 October1999.

In January 2000, when B.B. was about three years old, thedefense moved the court to order the State to produce B.B. for anindependent gynecological examination by the defense's expert, Dr.Ramona Slupik. In its motion, the defense asserted that Dr. Slupikwas "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 ismedical evidence consistent with digital penetration, as found byDr. 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 sheexamined the alleged victim on December 17, 1998. In additionto other findings, Dr. Flannery found a partial obliterationof the rim posteriorly. Based upon my review of the medicalrecords I am unable to arrive at a conclusion with regard tothis finding for the following reasons:

1) Partial obliteration of the hymen is notconclusively seen on the photographs submitted to me. Someclarification of the area of the hymen at 6 or 7 o'clock couldbe obtained by various other exam techniques, including achange of position.

A repeat examination of the alleged victim would resolvewhether there is partial obliteration posteriorly. Theexamination 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 ("kneechest"). One ounce of sterile water would be used to rinsethe hymen of any mucus or other debris and to facilitate itsdepiction. The exam would take approximately 5 minutes. Other than Q-tips, no other instruments would be used duringthe 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 hymendoes not re-grow, re-generate, or re-attach if trulytraumatized by blunt force penetrating trauma. Findings thatare specific for sexual abuse will be permanent."

At the hearing on the motion to produce B.B. for examinationby Dr. Slupik, the State indicated that it had spoken with "ourphysician who did the examination" (presumably Dr. Flannery) andthat "[s]he has proceeded by proffer." The State stated it did notbelieve defense counsel would have an objection to this manner ofproceeding. When, at a later point in the hearing, the trial courtasked the State whether it intended to file an affidavit to counterDr. Slupik's, the prosecutor replied, "I don't believe we need[sic] at this point because I believe it is by stipulation, I amgiving this by way of proffer."

The State then set forth Dr. Flannery's points of contentionwith Dr. Slupik's claims. Specifically, the physician denied thatthe examination Dr. Slupik proposed would take five minutes andthat the evidence of trauma seen by Dr. Flannery would still bepresent when Dr. Slupik examined B.B. The State also contendedthat the defense's motion and Dr. Slupik's affidavit both"overstated" Dr. Flannery's description of the trauma. The Stateexplained that Dr. Flannery did not, as the defense motionrepresented, conclude that there was medical evidence "consistentwith digital penetration," but only that B.B.'s genitalia was"suspicious for trauma most likely consistent with digitalpenetration." There is a "significant difference" between thesetwo findings, the State suggested. The defense responded that theprimary reason for the motion was that Dr. Slupik did not believethat the photographs "conclusive[ly]" showed partial obliterationof the hymen. The defense added that the State's "expert isagreeing that you cannot see in the photographs everything that shespecifically saw in the examination." In response to the State'sreference to the defense's delay in requesting the additionalphysical examination, the defense attorney advised the court thather heavy caseload was partially responsible for the delay.

The trial court granted the defense's motion for anexamination of B.B. by Dr. Slupik. However, neither at the hearingnor in its written order did the court set forth any reason for itsruling. The only adumbration of a rationale was contained in thecourt's observation during argument that Dr. Flannery would not bepermitted 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 hearingargument from the parties, the court denied the motion for "reasonsstated of record." When B.B.'s family refused to produce her forthe examination, the defense filed a motion to dismiss theindictment for the State's failure to produce B.B. The defenseargued in its motion that Dr. Slupik's examination "could clearlyexonerate" defendant and that defendant's "due process right to afundamentally fair trial will be destroyed without the opportunityto obtain the potentially exonerating evidence that could comealong only from an independent examination of the complainingwitness."

At a hearing to schedule a deadline for the State's response,the State requested an evidentiary hearing for the parties topresent the testimony of their experts. The State asserted thatthe court needed "to hear everything involved in this examination"in order to determine the appropriate sanction. Asserting that itconsidered the issue of the appropriate sanction "a simple legalissue," the court scheduled a future hearing for legal argumentonly.

At the parties' oral argument on the issue on May 3, 2000, thetrial court noted that People v. Wheeler, 151 Ill. 2d 298 (1992),"give[s] us some significant guidance in terms of evaluating what'sappropriate consistent with the defendant's right as well as withthe victim's rights and the victim's family's rights." The courtthen continued the matter to May 9, promising to impose thesanction of dismissal or exclusion of evidence if the State did notproduce B.B. for examination before the next hearing.

As of the May 9 hearing, the family still had refused toproduce B.B. for the examination. The State asked the court to conduct an evidentiary hearing before deciding the appropriatesanction. The court denied the request and dismissed theindictment. In its written order, the court indicated that itsdecision was "based upon the U.S. Constitution, IllinoisConstitution, effective assistance of counsel, due process andreasons 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 proceduralstandpoint to reinstate the indictment and have the court addressthe defense's motion as a motion in limine to exclude evidence. The court reinstated the indictment, and the defense filed a motionin limine to bar the State from presenting (1) the testimony ofDrs. Anderson and Flannery concerning their examinations of B.B.,as well as the testimony of any other medical personnel presentduring the examinations; and (2) any demonstrable evidence derivedfrom the examinations as well as any testimony of nonexaminingexperts concerning such evidence.

At the hearing on the motion, the State made its thirdrequest for an evidentiary hearing. Opposing the request, thedefense observed that the court, in ordering the examination, hadalready "balanced the discovery due process interests of thedefendant against the privacy interests of the victim." Thedefense argued that a compelling interest existed for theexamination because (1) Dr. Slupik determined that she could notverify the conclusions of Drs. Anderson and Flannery withoutexamining B.B.; (2) B.B. had already been examined twice; and (3)the proposed examination was "nonphysically invasive." The defenseargued that fairness would not be served either by allowing it tocross-examine Drs. Anderson and Flannery or by permitting theparties to present only nonexamining experts to testify concerningthe colposcopic photographs. The latter remedy particularly wasnot adequate, the defense contended, because any testimony by anonexamining expert concerning the photographs would have thephysical examinations as its "direct source."

The State argued in response that the court's previousbalancing of the respective interests was not adequate because thecourt "did not take into account all of the evidence that [theState] intend[ed] or attempted to present." The State pointed outthat, based on her examination of the photographs, Dr. Slupik'sonly disagreement with Drs. Anderson and Flannery was with respectto their finding that B.B.'s genital area showed a partialposterior obliteration of her hymen. The State suggested that anevidentiary hearing should be conducted to determine whether afinding of a partial posterior obliteration of B.B.'s hymen isnecessary to a conclusion that her genital area had beentraumatized. The State also asserted that the real concern wasnot, as the defense suggested, the physical nature of theexamination but, rather, its potential psychological impact givenits nature and the fact that it would be the third such examinationthat B.B. would undergo.

The court denied the State's request for an evidentiaryhearing and granted the defense's motion in limine. The court'swritten order provided in relevant part:

"4. That the body of the young child is effectively still thephysical evidence in this case (see the last statement inthe affidavit of the defense report). The proposeddefense examination of the 'evidence' would be more thanpotentially useful. In light of the incomplete orincondusive [sic] findings of the State's two experts andas it could determine whether or not 'findings' specificfor sexual abuse are present, that exam could determinewhether the alleged victim is a victim indeed (leaving asthe only practical issue the identity of the perpetratorof the abuse). There is a clear need for the exam. (SeePeople v. Newberry, [166 Ill. 2d 310 (1995)].)

5. That the State's position is that the defense, to ensurea fair trial, can simply review the State's medicalrecords and findings and cross-examine the State's twoexperts. The Supreme Court in People vs. Newberry, andcommon sense, recognizes that 'while these opportunitiesexist, the relief they offer is illusory.' [Newberry, 166Ill. 2d at 317.] The Supreme Court also recognized inPeople vs. Wheeler [151 Ill. 2d at 309], 'while it may bepossible for an expert to form an opinion...based only ona review of reports...[t]his is clearly not the preferredmethod....An expert who has personally examined a victimin [sic] a better position to render an opinion than isan expert who has not done so.'

6. The Court in People vs. Newberry was concerned with theexamination of physical evidence unlike People vs.Wheeler which dealt with a psycho therapist's [sic]interview with a rape victim. The People vs. Wheelercourt barred the State's use of evidence of rape traumasyndrome through the testimony of an examining expert. The State would be allowed to introduce rape traumaevidence through a nonexamining expert. That is,arguably, the State could call an expert to describe thesyndrome and its symptoms, and call other witnesses tooffer evidence of those symptoms. The People vs.Newberry court upheld the dismissal of the charge becauseof the inability of the State to provide the physicalevidence for the defense expert's examination. This isthe situation in the case before this court. The Statehas shown that they are able, and willing, to present theyoung child, the physical evidence, to State's expertsbut not to a defense expert.

7. That issues of the defendant's due process right to afundamentally fair trial, of the effective assistance ofcounsel, and of the right of confrontation (See Peoplevs. McClanahan [191 Ill. 2d 127 (2000)]) under theFederal and State Constitutions are involved in thiscase. So is the issue of victims [sic] rights. So alsois the issue of fundamental fairness."

The court excluded "the testimony of Dr. Anderson; the testimonyand reports of Dr. Flannery; the testimony of any personnel presentat the exams; and any photographs, diagrams or other demonstrativeevidence procured during or as a result of the exams." In itscomments at the hearing following the parties' arguments, the courtsuggested that section 115--6 of the Code (725 ILCS 5/115--6 (West1998)) contains a sanction "broader than the Wheeler sanction" andis precedent for excluding the State's evidence as requested by thedefense. The court also remarked that it had previously grantedthe 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 supremecourt held that a trial court has "jurisdiction to order anexamination of the complaining witness in a case involving a sexviolation [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 ofthe complaining witness to investigate her alleged history of " 'emotional instability and immaturity' " and an ophthalmologicalexamination "to determine her ability to see and identify thedefendant." Glover, 49 Ill. 2d at 81. The defendant argued thatthe latter examination was necessary because it was dark at thetime of the alleged assault and there were no other witnesses tothe assault. The supreme court upheld the trial court's denial ofthe motion for the physical examination, providing no analysis butonly the summary holding that "the record reflects no compellingreason" for the examination. Glover, 49 Ill. 2d at 82.

Several years later, we cited Glover in setting forth the rulethat a trial court may order a physical examination of thecomplainant in a sex offense case provided the defendantdemonstrates 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 ofa child. The defendant moved for a physical examination of thecomplaining witness to determine "whether [her] hymen was intact." Visgar, 120 Ill. App. 3d at 587. We upheld the trial court'sdenial of the motion, reasoning that because there was noallegation that the complaining witness was injured or that hervagina was penetrated, an examination of the vagina "would not benecessary for any purpose." Visgar, 120 Ill. App. 3d at 587.

We note that Visgar does not dispose of the defendant'srequest in this case. Defendant is charged under section 12--16(c)(1)(i) of the Code with committing "an act of sexual conductwith a victim who was under 9 years of age when the act wascommitted." Section 12--12(e) of the Code (720 ILCS 5/12--12(e)(West 1998)) defines "sexual conduct," in relevant part, as "anyintentional or knowing touching or fondling by the victim or theaccused, either directly or through clothing, of the sex organs,anus or breast of the victim or the accused *** for the purpose ofsexual gratification." The specific allegation in the indictmentis that Lopez "knowingly fondled the vaginal area of [B.B.]" forhis sexual gratification. Although it has not formally allegedthat defendant penetrated B.B.'s vagina, the State has expressed anintention to introduce evidence of penetration, i.e., that B.B.'shymen is not intact, to prove its charge that defendant fondledB.B. On its face, the examination defendant proposes would beuseful in challenging this evidence. Thus, we find Visgardistinguishable insofar as in this case, unlike Visgar, the Statehas alleged penetration and defendant has proposed an examinationto confirm or disconfirm some of the State's proposed evidence ofpenetration.

We hold, nevertheless, that defendant has not demonstrated acompelling need for the examination he requests. The record isundeveloped on some points critical to defendant's motion. First,there is nothing in the record substantiating Dr. Slupik'sconclusory observation that an examination of B.B.'s vaginal areais necessary because the colposcopic photographs present views ofB.B.'s hymen that are inadequate to demonstrate conclusivelywhether or not there is a partial obliteration of B.B.'s hymen. The State made a vague concession at the hearing on the motion thatthe photographs do not show "everything" that Dr. Flannery saw inthe examination. However, the adequacy of the photographs was notexplored sufficiently in the court below. Therefore, we cannot saythat Dr. Slupik's rationale for the examination is compelling.

Second, the sole evidence defendant has produced in support ofhis motion is the affidavit of Dr. Slupik, who alleges that theexamination would be useful in challenging Dr. Flannery's findingof a partial obliteration of B.B.'s hymen. However, Dr. Slupikdoes not address the findings of Dr. Anderson. Although, due toB.B.'s discomfort, Dr. Anderson was unable to inspect her hymen, hedid find "apparent scar tissue surrounding the vagina,"specifically, "an adhesion of the labia with a synechial scar ofthe tissue touching together, covering the opening of the [vagina]and obscuring the hymen." Dr. Anderson noted that the inspectionof the hymen would provide "additional useful info[rmation] for adefinitive [diagnosis]." He immediately added, however, that "thesynechia is suggestive of previous trauma and raw edges comingtogether, suggestive of trauma." Dr. Slupik did not express anopinion on the accuracy of Dr. Anderson's finding of scar tissue. The relation of the scar tissue to the hymenal tear was notexplored in the court below. Thus, it is not clear from the recordwhether a challenge to the existence of a hymenal obliterationsupposedly found by Dr. Flannery necessarily would be a challengeto the existence of the scar tissue supposedly found by Dr.Anderson. Because Dr. Slupik's examination apparently wouldchallenge only one of two apparently independent indications oftrauma for which the State has produced evidence, we cannot regarddefendant's request for the examination as "compelling." We holdthat the record, in its current state, does not meet the standardset forth in Visgar and Glover and that the trial court erred ingranting defendant's request for an examination.

Given the gravity of the criminal charge in this case and theseriousness of the interests implicated in defendant's request foran examination, the record was insufficiently developed on theissue at hand. We recognize that neither party requested anevidentiary hearing on defendant's request for the examination. Nonetheless, a trial court has an active, inescapable responsibility to ensure that the contested proceeding it overseesand the resulting rulings it issues accord with the appropriatelegal standards, which in this instance require defendant toestablish a compelling need. Some of the trial court's remarkssuggest it did not evaluate defendant's request in accordance withthe applicable standard. In its order granting the defense'smotion in limine to sanction the State for its failure to complywith the order granting the examination, the trial court statedmerely that there was a "clear need" for the examination. In itsremarks at the hearing on the motion in limine, the court commentedthat the defense's request for the examination was "reasonable" andthat 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 onremand from this decision. To our knowledge, Visgar and Glover arethe only published cases in which a reviewing court in Illinois hashad occasion to apply the "compelling need" test to a defendant'srequest for an independent physical examination of the complainingwitness in a sex offense case. A number of state courts haveadopted a "compelling need" or "compelling reason" approach to suchrequests. 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, 852S.W.2d 216 (Tenn. 1993); State v. Delaney, 187 W. Va. 212, 417S.E.2d 903 (1992). However, while many of these courts havediscussed at length what a trial court should consider inentertaining a defendant's request for an independent physicalexamination 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 morethan that a "compelling need" must be shown for the examination. We believe trial courts should be provided further guidance on thisissue.

We agree with the Barone court that the "critical inquiry"involved in applying the "compelling need" test is "whether theevidence sought by the defendant is of such importance to hisdefense that it outweighs the potential for harm caused by theinvasion of the complainant's privacy, including the prospect thatundergoing a physical examination might be used for harassment ofa prosecuting witness" (Barone, 852 S.W.2d at 222). We agree withthe Barone court that the relevance of the requested examination tothe defense must be considered in each case with due regard for theobvious fact "that the highly intrusive nature of a physical exam,"especially (we note) a gynecological examination, "raises the sameconcerns about emotional trauma, embarrassment, and intimidation tothe 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 examinationsof criminal witnesses must be approached with utmost judicialrestraint and respect for an individual's dignity")). We approveof the approach, set forth in Barone and other cases, under whicha trial court confronted with a defendant's request for anindependent physical examination of the complaining witness in asex offense case must consider (1) the complainant's age; (2) theremoteness in time of the alleged criminal incident to the proposedexamination; (3) the nature of the requested examination and theintrusiveness inherent in it; (4) the resulting physical andemotional effects of the examination on the victim; (5) theprobative 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.2dat 907; Ramos, 553 A.2d at 1062). On remand, the trial courtshould 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 anotherexamination of B.B. are intensely factual in nature and the recordis incomplete in several critical respects, we believe anevidentiary hearing is necessary in this case for an adequateconsideration of defendant's motion for an independent examinationof B.B.

While the trial court must consider all of the above factorsin addressing defendant's motion, we note that certain factors inparticular must be given greater attention on remand than they weregiven previously. First, in addressing defendant's motion, thetrial court gave inadequate consideration to the rights of B.B. Wefind 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 anattempt to compare the victim with cocaine powder, "Powder does nothave dignity, and courts are rightly solicitous when a humanbeing's privacy faces invasion"). Evidence does not have aninterest in privacy. A person, on the other hand, does--even whenshe 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 withfairness and respect for their dignity and privacy throughout thecriminal justice process." The privacy interests of complainantshave constitutional protection as well. "It is surely anomalous tosay that the individual and his private property are fullyprotected by the Fourth Amendment only when the individual issuspected of criminal behavior." Camara v. Municipal Court, 387U.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 victimby 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, andwe hold they do have, the same fourth amendment protection againstgovernmental intrusion into their bodies that defendants incriminal cases have." Holding that proposed surgery on complainantto remove bullets remaining in his body for ballistic examinationwould be an unreasonable intrusion into his body proscribed underfourth amendment). When entertaining a motion by the defense foran independent physical examination of the complaining witness ina sex offense case, the trial court must give due consideration tothe rights of the alleged victim as well as the rights of thedefendant.

Second, the trial court must give greater consideration to thenature of the proposed examination and its potential physical andemotional impact on B.B. There is a degree of intrusiveness andhumiliation associated with a gynecological examination, especiallyof a young girl. See Privee v. Burns, 46 Conn. Supp. 301, 306, 749A.2d 689, 693 (Conn. Super. Ct. 1999) ("[M]any people are likely tofind unusually intrusive medical examinations, such as psychiatricand 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 gynecologicalexamination" 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 thathas lapsed since the offense, alleged to have occurred in Octoberor November 1998. The examination by Dr. Slupik was first proposedin January 2000, more than one year after the alleged assault. More than two years have since passed. The lapse of time warrantsserious 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 2000when Dr. Slupik's examination was proposed.

We also hold that the trial court erred in grantingdefendant's motion in limine to bar the State from introducing anyevidence or testimony from B.B.'s examining physicians concerningtheir examinations of her. The exclusion of evidence is an"extreme sanction[] not favored when an alternative exists" (Peoplev. Weaver, 92 Ill. 2d 545, 561 (1982)), and in our view the trialcourt imposed that sanction without giving proper consideration tothe appropriateness of lesser sanctions. Due to lengthrestrictions, our discussion of that issue is unpublished.

[Nonpublishable material under Supreme Court Rule 23 omittedhere.]

For the reasons provided above, the order of the circuit courtof Du Page County granting defendant's motion for an independentphysical examination of the alleged victim is vacated, and thecause is remanded for proceedings consistent with this decision.

Order vacated; cause remanded with directions.

GEIGER and GROMETER, JJ., concur.