After mustering the courage to contact the authorities, some sex-abuse survivors are finding that they are being victimized all over again by judges and physicians.

It’s called “court-ordered rape” — a term used by advocates to describe forced vaginal or anal exams of sex abuse victims. The exams ostensibly are meant to obtain physical evidence of a crime. But critics say the invasive procedures are scaring victims from pressing charges and forcing victims to relive their rapes.

A state lawmaker last month introduced legislation that would make it much harder for judges in criminal prosecutions and lawsuits to order such exams. The two bills are being considered after the state Supreme Court this month ordered all judges to undergo sensitivity training for matters involving sex crimes.

The order followed a high-profile disciplinary case of an Ocean County Superior Court judge who told a rape victim that she could “close your legs” in order to “stop somebody from having intercourse with you.” The Supreme Court has initiated proceedings that could boot John Russo Jr. from the bench.

The Supreme Court this month also accepted the permanent retirement of Monmouth County Family Court Judge James Troiano, who was criticized by an appellate court panel for suggesting that a teen rape suspect should be treated with leniency because he came from a good family and school, adding that a 16-year-old victim should have thought about how pressing charges could ruin the accused perpetrator’s life.

Middlesex County Family Court Judge Marcia Silva also faced public backlash for saying in a decision that she did not see how a 12-year-old girl, who allegedly had been violently raped by a 16-year-old boy, suffered physically or emotionally beyond losing her virginity.

The legislation regarding examinations is another way policymakers are tying to change the way the criminal justice system handles abuse survivors and investigations.

'Put up or shut up'

It is not clear how often victims are being ordered to undergo unwanted physical examinations, but it is happening.

In September 2018, Villanova law professor Michelle Madden Dempsey wrote to colleagues at several women’s and domestic violence advocacy groups regarding “court-ordered rape” — a term she says was used by a New Jersey woman who had faced such a court order, and a term that Dempsey found apropos, considering that the Journal of Forensic and Legal Medicine in 2015 called virginity testing in sex assault cases a “form of sexual assault and rape.”

“[O]ur legal analysis demonstrates that court-ordered rape is occurring in the United States, and that several jurisdictions have sanctioned court-ordered rape, either in practice or in principle,” Dempsey wrote.

The woman at the center of Dempsey’s letter was a Bergen County resident who in the mid 1990s pressed charges against her former partner for infecting her with herpes.

At the time, “sexual penetration by a diseased person” was a misdemeanor. A year after a Superior Court judge in 1996 upheld the Municipal Court conviction of Norman Dubin under that statute, his ex successfully lobbied lawmakers to make the crime a fourth- and third-degree felony.

The woman — who New Jersey 101.5 has agreed to not name because she was the victim of a sex crime — then sued her ex for damages. Even though Dubin already had been found guilty of infecting her, and even though he had admitted in a deposition in the civil case that he indeed had herpes, his attorney insisted that the plaintiff undergo an independent gynecological exam to prove her case.

The woman resisted and offered a number of reasons why she should not be subjected to an exam, not the least of which was that she was terrified of undergoing such a procedure, court records show. She also offered the court letters from doctors — one with the American Board of Infectious Diseases, the other a medical epidemiologist with the National Center for HIV, STD and TB Prevention — explaining that such an exam is not only unnecessary to determine whether a patient has herpes, but inappropriate because herpes often shows no signs that could be detected with a physical exam.

In a September 1998 letter to Superior Court Judge Lawrence Smith, Dubin’s attorney insisted that the defense “needed a physical evaluation of plaintiff, in conjunction with a detailed medical and sexual history, to challenge the claims which are presented.”

“In simple terms, the time has long since past for plaintiff to ‘put up or shut up,’” attorney John G. Tinker Jr. argued after he said that several medical appointments had been rescheduled.

In December 1998, Judge Smith signed an order mandating a gynecological exam, rejecting the woman’s “application demonstrating a real potential for emotional harm” as being “besides the point.”

Neither Smith (now retired) nor Tinker could be reached for comment.

After the judge mandated an exam, the case was eventually dismissed in favor of the convicted defendant. Years later, she continues to draw attention to her case.

"I've been fighting against this for almost 21 years. I didn't want this to happen to anyone else," she said in an interview with New Jersey 101.5.

Victimized all over again

Assemblywoman Carol Murphy, D-Burlington, is sponsoring the two-bill package that creates a higher standard of proof to be used in cases where a court orders a sexual assault victim to undergo an examination.

“This was borne out of concerns for the obstacles that victims of sexual assault and sexual crimes often face through litigation or through trial,” she said.

Murphy said sexual assault victims may be ordered to undergo an exam several months or even a year after the crime.

“When you order a court exam, you’re now putting that victim into a situation where they’re with a doctor that they don’t know. They’re being forced to submit to an exam that may or may not determine anything,” she said. “Now they feel as if they’re being victimized all over again.”

Murphy’s legislation builds upon a state Supreme Court precedent set in a 1992 case involving a 10-year-old girl. The court first ordered an exam nine months after the reported attack in order to prove whether her vaginal hymen was broken — a request that was appealed.

Four years later the high court ruled that a judge may order a physical exam of a child sex abuse victim only when the defendant has convinced the court that the exam can produce competent evidence that could “refute or neutralize incriminating evidence or impugn the credibility of prosecution witnesses.”

Dempsey, the Villanova law professor, says such hymen tests are “junk science” anyway. And other physical exams have little value, especially after time has passed.

“Even if a vaginal examination shortly after an assault proves evidence of injury, it is unlikely that these findings will be present at the time when defendants are requesting courts to order vaginal examinations,” she wrote.

Murphy’s bills require a higher standard of proof than the Supreme Court case. The defense would have to show by “clear and convincing evidence, that an examination can produce competent evidence that has overwhelming probative worth.” The worth of the exam also has to outweigh possible harmful consequences.

The proposed bills — A5646 and A5643 — would apply to child and adult victims in both criminal and civil proceedings involving allegations of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact and human trafficking involving sexual activity. It would also cover orders for psychological examinations.

The former Bergen County woman who has been lobbying for a new law says the legislation should go further in restricting genital, anal and breast examinations in all crimes and cases, not just the listed sex crimes.

"Judges are ignorant," she said. "Break it down in plain language."

Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault, supports the proposals. She said it’s important for survivors to give their consent for a gynecological exam, not have it forced upon them, especially in light of recent complaints against judges in the state.

“We’ve highlighted over the last couple of weeks a number of challenges for survivors and victims of crimes when they get before members of our judiciary,” Teffenhart said.

She believes laws like this will encourage more victims to come forward.

“Every safeguard, every policy, every practice reform that we can put in place will help us do better and ensure that survivors have better outcomes.”

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