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Docket No. 93758-Agenda 4-March 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ISMAEL LOPEZ, Appellant.

Opinion filed October 17, 2003.

JUSTICE KILBRIDE delivered the opinion of the court:

In this case we decide whether a trial court can order the physicalexamination of an alleged sex offense victim. Defendant was chargedwith aggravated criminal sexual abuse under section 12-16(c)(1)(i) ofthe Criminal Code of 1961 (Criminal Code) (720 ILCS5/12-16(c)(1)(i) (West 1998)). He sought a gynecologicalexamination of the alleged victim, B.B., who was three years old atthe time. The circuit court of Du Page County granted defendant'srequest, and B.B.'s family refused to comply. As a sanction, the courtgranted defendant's motion in limine to prohibit the State fromintroducing any medical expert evidence of its own. On appeal, theappellate court reversed, finding that the record did not establish acompelling need for the examination, and remanded the cause for ahearing on the issue. 328 Ill. App. 3d 563. We granted defendant leaveto appeal (177 Ill. 2d R. 315) and now affirm in part, vacate in part,and remand. We hold that a trial court cannot order the physicalexamination of a complaining witness in a sex offense case. We furtherhold that, when a trial court rules on the admission of evidence in asex offense case where a defendant has requested the physicalexamination of a complaining witness and the witness refuses tosubmit to the examination, the court must balance the due processrights of the defendant against the privacy rights of the alleged victim,by deciding what medical evidence, if any, the State is allowed tointroduce.

I. BACKGROUND

At the behest of B.B.'s family, Dr. E. Anderson examined B.B.,who was 20 months old at the time, and concluded that she was avictim of sexual abuse. This conclusion was based in part on Dr.Anderson's finding that her labial origin "show[ed] a small falsepassage, suggestive of partial tearing" and also on the presence of scartissue surrounding the vagina. Dr. Anderson reported that he wasunable to inspect B.B.'s hymen adequately because B.B. complainedof discomfort and "with[drew] from the situation." Dr. Andersonexplained that, while he could not "100%" rule out a developmentalanomaly, he felt that B.B.'s condition was the result of a traumaticinjury. He further commented that:

"[c]ertainly, visualization of the hymen would provideadditional useful info[rmation] for a definitive [diagnosis],although the synechia is suggestive of previous scarring andraw edges coming together, suggestive of trauma. *** Dueto the swelling of the tissues, I should note that it wasdifficult to decide whether the tissue adhesion was with thelabia minora or with the actual [vaginal] wall, although itwould appear to be most likely labial."

Dr. M. Flannery also examined B.B. She prepared 17 colposcopicphotographs of B.B.'s vaginal region. Based on her examination, Dr.Flannery concluded that B.B.'s condition was "suspicious for traumamost likely consistent with digital penetration." Dr. Flannery'sfindings, in part, noted:

"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."

Following B.B.'s medical examinations, defendant was indictedfor aggravated criminal sexual abuse under section 12-16(c)(1)(i) ofthe Criminal Code (720 ILCS 5/12-16(c)(1)(i) (West 1998)).Approximately three months after the medical examinations, the Statepresented defendant with the reports of Dr. Anderson and Dr.Flannery. On defendant's request, the State later provided defendantwith copies of the photographs taken by Dr. Flannery.

Approximately 13 months after the examinations, when B.B. wasabout three years old, defendant filed a motion to produce B.B. for anindependent gynecological examination. Attached to defendant'smotion to produce was the affidavit of his medical expert, Dr. R.Slupnik. Dr. Slupnik stated that she had reviewed the medical recordsand the photographs of B.B. According to Dr. Slupnik, she was"unable to arrive at a conclusion" about Dr. Flannery's finding of a"partial obliteration of the [hymenal] rim posteriorly." Dr. Slupnikopined:

"Partial obliteration of the hymen is not conclusively seenon the photographs submitted to me. Some clarification ofthe area of the hymen at 6 or 7 o'clock could be obtained byvarious other exam techniques, including a change ofposition.

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 rinse thehymen 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 hymen does notre-grow, re-generate, or re-attach if truly traumatized byblunt force penetrating trauma. Findings that are specific forsexual abuse will be permanent."

A hearing was held on the motion to produce B.B. for anindependent gynecological examination. At the hearing, the Statecontended that an examination as proposed by Dr. Slupik would lastlonger than five minutes and also denied that the evidence of traumaseen by Dr. Flannery would still be present. The State complained thatdefendant waited too long to file his motion to produce B.B. TheState further clarified that Dr. Flannery did not suggest that there wasmedical evidence conclusive of "digital penetration," but simply thatthe condition of B.B.'s genitalia was "suspicious for trauma mostlikely consistent with digital penetration."

Defendant argued that the chief reason Dr. Slupik wished toexamine B.B. independently was that she did not believe thephotographs conclusively showed a partial obliteration of the hymen.In response to the State's reference to defendant's delay in requestingthe independent physical examination, defendant suggested that thetrial court's congested docket was, in part, responsible for the delay.

Following the hearing, the trial court granted defendant's motionfor an examination of B.B. by Dr. Slupik. The trial court record issilent as to the rationale behind this decision. The lone comment onthe issue is the court's observation during argument that Dr. Flannerywould not be permitted to testify at trial regarding her conclusionsbecause Dr. Flannery could not "even testify as to a speculation." Thetrial court later denied the State's motion to reconsider withouthearing argument from the parties.

B.B.'s family refused to produce her for the examination. As aresult, defendant moved to dismiss the indictment. Defendantcontended that Dr. Slupik's examination "could clearly exonerate"him and that his "due process right to a fundamentally fair trial will bedestroyed without the opportunity to obtain the potentiallyexonerating evidence that could come along only from an independentexamination of [B.B.]."

In response, the State sought an evidentiary hearing to determinethe appropriate sanction to be levied for the failure to produce B.B.so that the parties could present the testimony of their experts. Thetrial court stated that it considered the issue of the appropriatesanction "a simple legal issue" and scheduled a hearing for legalargument only. At that hearing, the trial court informed the State thata sanction of dismissal or exclusion of evidence would follow if theState did not produce B.B. for an independent medical examination.

B.B.'s family still refused to produce B.B. for the examination.The State again requested that the court conduct an evidentiaryhearing before deciding the appropriate sanction. The court denied therequest and dismissed the indictment. In its written order, the courtindicated that its decision was based upon "the U.S. Constitution,Illinois Constitution, effective assistance of counsel, due process andreasons more fully set out in the record."

The parties then agreed that it would be more logical from aprocedural standpoint to reinstate the indictment and allow the courtto address defendant's motion as a motion in limine to excludeevidence. Thus, the court reinstated the indictment. Defendant thenfiled a motion in limine to bar the State from presenting the testimonyof Dr. Anderson and Dr. Flannery concerning their examinations ofB.B., as well as any other evidence derived from those examinations.

At the hearing on defendant's motion in limine, the State madeits third request for an evidentiary hearing. In response, defendantargued that the court had already "balanced the discovery due processinterests of *** defendant against the privacy interests of the victim"when it granted defendant's request for the examination. Defendantalso contended that B.B. had already been examined twice and thatthe proposed examination was "nonphysically invasive." Defendantfurther urged that fairness would be served neither by thecross-examination of Dr. Anderson and Dr. Flannery nor by thetestimony of nonexamining experts concerning the colposcopicphotographs, as the photographs would have the physicalexaminations as their "direct source."

The State answered that the court's previous balancing of therespective interests was inadequate in that the court had not taken intoaccount all of the evidence that the State intended or attempted topresent. The State noted that Dr. Slupnik's sole disagreement with Dr.Anderson and Dr. Flannery concerned the finding that B.B.'s genitalarea showed a partial posterior obliteration of the hymen. The Stateagain suggested that an evidentiary hearing should be conducted todetermine whether a finding of a partial posterior obliteration ofB.B.'s hymen is necessary to a conclusion that her genital area hadbeen traumatized. The State further asserted that the real concern withanother physical examination was its potential psychological impactgiven its nature and that it would be the third examination for B.B.

Following the hearing on defendant's motion in limine, the courtdenied the State's request for an evidentiary hearing and granteddefendant's motion. The court, in relevant part, found that:

"the body of the young child is effectively still the physicalevidence in this case ***. The proposed defense examinationof the 'evidence' would be more than potentially useful. Inlight of the incomplete or inconclusive findings of the State'stwo experts and as it could determine whether or not'findings' specific for sexual abuse are present, that examcould determine whether the alleged victim is a victim indeed(leaving as the only practical issue the identity of theperpetrator of the abuse). There is a clear need for the exam."

The trial court recognized that both defendant's due processrights and the alleged victim's rights were at issue. Nevertheless, thecourt found that under People v. Newberry, 166 Ill. 2d 310 (1995),and People v. Wheeler, 151 Ill. 2d 298 (1992), cross-examination ofthe State's experts was insufficient to protect defendant's rightsbecause an expert who has personally examined a victim is in a betterposition to render an opinion than a nonexamining expert.

In particular regard to Newberry, the court commented:

"[The Newberry court] was concerned with the examinationof physical evidence unlike People v. Wheeler which dealtwith a psycho therapist's [sic] interview with a rape victim.The People v. Wheeler court barred the State's use ofevidence of rape trauma syndrome through the testimony ofan examining expert. The State would be allowed tointroduce rape trauma evidence through a nonexaminingexpert. That is, arguably, the State could call an expert todescribe the syndrome and its symptoms, and call otherwitnesses to offer evidence of those symptoms. The Peoplev. Newberry court upheld the dismissal of the charge becauseof the inability of the State to provide the physical evidencefor the defense expert's examination. This is the situation inthe case before this court. The State has shown that they areable, and willing, to present the young child, the physicalevidence, to State's experts but not to a defense expert."

As a result of these findings, the court ordered that the experttestimony and reports of Dr. Anderson and Dr. Flannery be excludedfrom evidence. In addition, the trial court precluded the State fromintroducing the evidence of nonexamining experts.

On the State's appeal, the appellate court reversed, holding thatdefendant failed to demonstrate a compelling need to have the victimexamined by his medical expert. 328 Ill. App. 3d 563. According tothe appellate court, the "critical inquiry" involved in applying the"compelling need" test is " 'whether the evidence sought by thedefendant is of such importance to his defense that it outweighs thepotential for harm caused by the invasion of the complainant'sprivacy, including the prospect that undergoing a physical examinationmight be used for harassment of a prosecuting witness.' " 328 Ill.App. 3d at 573, quoting State v. Barone, 852 S.W.2d 216, 222 (Tenn.1993). The appellate court remanded the cause to the trial court foran evidentiary hearing to determine the need for an independentphysical examination of B.B., providing the trial court with detailedinstructions on how to proceed. 328 Ill. App. 3d at 572-75. In anunpublished portion of its opinion, the appellate court further held thatthe trial court erred in granting defendant's motion in limine to bar theState from introducing any evidence or testimony from B.B.'sexamining physicians. By leave of this court, defendant appeals fromthe appellate court decision. 177 Ill. 2d R. 315.

II. ANALYSIS

A. Physical Examination

In People v. Glover, 49 Ill. 2d 78 (1971), the defendant, chargedwith deviate sexual assault, 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" because it was dark at the time of the alleged assault.Glover, 49 Ill. 2d at 81. The trial court denied the motion to compelthe examinations. On appeal, this court stated that "[t]here is noquestion of [an Illinois court's] jurisdiction to order an examination ofthe complaining witness in a case involving a sex violation." Glover,49 Ill. 2d at 82, citing People ex rel. Noren v. Dempsey, 10 Ill. 2d 288(1957). Nevertheless, we affirmed the trial court's denial of themotions for the examinations and held that: (1) requests for suchexaminations must be premised upon a compelling reasondemonstrated by the defendant; and (2) the decision to order anindependent examination is subject to the discretion of the trial court.Glover, 49 Ill. 2d at 82.

It is well settled that prior precedent should be overturned "onlyon the showing of good cause," only where there is " 'specialjustification' " for the departure, or only where the reasons fordeparture are "compelling." People v. Tisdel, 201 Ill. 2d 210, 228-29(2002) (quoting Heimgaertner v. Benjamin Electric ManufacturingCo., 6 Ill. 2d 152, 167 (1955), Chicago Bar Ass'n, 161 Ill. 2d 502,510 (1994) (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 81 L. Ed.2d 164, 172, 104 S. Ct. 2305, 2311 (1984)), and People v. Robinson,187 Ill. 2d 461, 463-64 (1999)). This court has recognized that it willnot depart from precedent " 'merely because the court is of theopinion that it might decide otherwise were the question a new one.' "Robinson, 187 Ill. 2d at 464, quoting Maki v. Frelk, 40 Ill. 2d 193,196-97 (1968). For the reasons that follow, we find that suchcompelling justification exists in this case. We, therefore, overruleGlover and hold that a trial court may not order the physicalexamination of a complaining witness in a sex offense case.

1. Criminal Versus Civil Proceedings

Noren, the sole case cited in Glover for the proposition that atrial court can compel the physical examination of a complainingwitness, involved a negligence action for personal injuries suffered bya plaintiff in an automobile accident. The defendant sought a physicalexamination of the plaintiff to determine the extent of the plaintiff'sinjuries in order to prepare for trial. He requested the entry of an orderrequiring the plaintiff to submit to a physical examination by aphysician chosen by the defendant. The trial court granted thedefendant's request and the plaintiff filed a writ of mandamus tocompel the trial court to expunge the order. This court denied thewrit, reasoning, in part, as follows:

"It is common knowledge that the circuit court of CookCounty has for years consistently ordered plaintiffs to submitto physical examinations in appropriate cases. In People exrel. Leighty v. Fisher, No. 30219 (1947, unreported), thiscourt denied leave to file an original petition for mandamusto expunge an order of the circuit court of Cook County thatrequired the plaintiff in a personal injury case to submit tophysical examination. The time has come for this court torecognize explicitly the propriety of this practice. *** [C]asesthat have asserted a want of power in our courts to order aphysical examination when physical condition is in issue areoverruled." Noren, 10 Ill. 2d at 294.

Thus, it is apparent that Noren was concerned solely with civil cases,involving a plaintiff's physical condition.

Alleged victims in criminal cases, unlike plaintiffs in civil cases,are not parties to the action, nor are they under control of the State.The appellate court in People v. Visgar, 120 Ill. App. 3d 584 (1983),noted Glover's shortcoming of relying on a civil case. Visgar, 120 Ill.App. 3d at 587. Nevertheless, due to the apparent unequivocal natureof our holding in Glover and given that Glover was again cited withapproval in People v. Rossi, 52 Ill. 2d 13 (1972), and in a handful ofappellate court cases (see, e.g., People v. Davis, 97 Ill. App. 3d 299(1981); People v. Dentley, 31 Ill. App. 3d 679 (1975)), the Visgarcourt relied on it to justify the continued power of a trial court tocompel the physical examination of a complaining witness in a sexoffense case.

The defendant in Visgar, charged with the lewd fondling of achild, sought a physical examination to determine "whether [thecomplaining witness'] hymen was intact." Visgar, 120 Ill. App. 3d at587. Reasoning that there was no allegation that the complainingwitness was injured or that her vagina had been penetrated, the trialcourt found that an examination "would not be necessary for anypurpose." Visgar, 120 Ill. App. 3d at 587. Thus, unlike the case athand, the appellate court in Visgar was not faced with the decision ofaffirming a trial court's decision to order the physical examination ofa complaining witness.

2. Other Jurisdictions

Here, the appellate court turned to the other jurisdictions thatutilize the "compelling need" test because neither Glover nor Visgarprovided any guidance on how to implement the test. See, e.g., Peoplev. Chard, 808 P.2d 351 (Colo. 1991); Bartlett v. Hamwi, 626 So. 2d1040 (Fla. App. 1993); State v. D.R.H., 127 N.J. 249, 604 A.2d 89(1992); State v. Garrett, 384 N.W.2d 617 (Minn. App. 1986); Statev. Ramos, 553 A.2d 1059 (R.I. 1989); State v. Barone, 852 S.W.2d216 (Tenn. 1993); State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903(1992). In Chard, for example, the Colorado Supreme Courtconsidered a defendant's request for involuntary, independentpsychological and physical examinations of a child who was an allegedvictim of a sex offense. Relying on prior case law relating toinvoluntary psychological examinations, the court expressly adoptedthe "compelling need" test for involuntary physical examinations.Chard, 808 P.2d at 353. Chard listed the factors to be considered indetermining whether a "compelling need" is present. Those factorsare: (1) the complainant's age; (2) the remoteness in time of thealleged criminal incident to the proposed examination: (3) the degreeof intrusiveness and humiliation associated with the procedure; (4) thepotentially debilitating physical effects of such an examination; and (5)any other relevant considerations. Chard, 808 P.2d at 355, citingRamos, 553 A.2d at 1062. In assessing those factors, the trial courtmust " ' "balance the possible emotional trauma, embarrassment orintimidation to the complainant against the likelihood of theexamination producing material, as distinguished from speculative,evidence." ' " Chard, 808 P.2d at 356, quoting People v. Estorga,612 P.2d 520, 523 (Colo. 1980), quoting People v. King, 581 P.2d739, 741 (Colo. 1978).

Like Chard, the other jurisdictions that have adopted the"compelling need" test for involuntary physical examinations haverelied, at least in part, on the court's authority to order apsychological examination. See D.R.H., 127 N.J. at 257, 604 A.2d at93 (noting, where defendant sought only a physical examination, theinherent power of the judiciary to order a witness to submit to apsychiatric or psychological examination); Ramos, 553 A.2d at 1062(noting, where defendant sought only a physical examination, that anumber of courts have held that a trial court has discretionary powerto order a witness in a criminal trial to submit to a psychiatricexamination); Barone, 852 S.W.2d at 221 (noting, where defendantsought only a physical examination, the trial judge has the inherentpower to compel a psychiatric or psychological examination of thevictim). In the other jurisdictions that hold a trial court may not orderan unwilling witness to submit to a physical examination (see, e.g.,State v. Hewett, 93 N.C. App. 1, 9, 376 S.E.2d 467, 472 (1989); Stateex rel. Wade v. Stephens, 724 S.W.2d 141, 143-44 (Tex. Ct. App.1987)), the courts likewise have no discretionary authority to order acomplaining witness to submit to a mental examination (State v.Clontz, 305 N.C. App. 116, 121, 286 S.E.2d 793, 796 (1982); Stateex rel. Holmes v. Lanford, 764 S.W.2d 593, 594 (Tex. Ct. App.1989)).

Similarly, in Illinois, a court has no authority to "order [the]mental examination of [a] sex victim." 725 ILCS 5/115-7.1 (West1998). When our decision in Glover was issued, section 115-7.1 wasnot yet in existence. See 725 ILCS 5/115-7.1 (West 1998) (added byPub. Act 83-289,