DISTRICT COURTS OF APPEAL	March 18, 1988
13 FLW 668

Criminal law—Thai o,uirt pos~ss~ authority to order psychiatriz enmination of sexual battery tim only upon showing of strong and compelling reasons for such eomhiatlon—Thal coon’s order compelling victim to undergo fisychiatric eramination in instant case departure from ~sontial requirenients of law—Certiorari granted

STATE OP FLORInA, Petitioner, V. HONORABLE HARRY LEE COE, III, Circuit judge, Thirteenth Judicial Circuit, and WILLIAM HAROLD
THOMAS Respondent 2nd District. Case No. 88-fl. Opinion filed March
II 1988. Petition rot Writ of Pruhibition in the Circuit Court for Hillsborough County; Hany Lee Ccc, Ill, ludgt. James M. Barton, II, Assistant State Attorney, Tampa for Petitioner; Rex Curry, Assistant Public Defender for Respondent, William Harold Thomas.

(PER CURIAM.) This is a ~jeti6oq, fix a writ of prohibition seeking to quash the trial judge’s order which required the victim of a serial battery to undergo a psychiatric examination for the
purpose of detenniniog her credibility. We treat the petition as one tr a writ of certiorari, see Ela.R.App.P. 9.040(c); State p. Penli, No. 69,097 (Fla. Jan. it, 1988) [13 EL.W. 44], grant the petition, and quash the trial jfldge’s order
	The trial judge’s order was entered hr State it Thomas, No.
&7-13974, in response to a defrtsc motion to require the victim to undergo a psychiatrielpsycltological examination. Thomas is charged with the sexual battery, kidnapping, and aggravated battery of the victim. The unswom jyfotion alleged that the victim did not appreciate the duty to tell the truth. may suffer psychological prvblenis afThcting her credibility, and may suffer from alcoholism. Attached to the motion was an unsv~om statement of fr.cts which essentially alleged that the victim has a jealous relationship with her boyfriend, who is not the defendant; that the victim has consumed alcohol; and that the victim has given conflicting accounts of the attack.
	At the hearing on the model,, defense counsel represented to the trial judge that be wanted a psychological examination of the victim to go “after her credibility.” He further stared essentially that the victim has “some obtssive-type relationship with her boyfriend:’ wWshelikesmtoplayherrescn.,~rorhero she has told conflicting accoulits of the attack: and she told an officer on the night of the attack that she was “somewhat intoxicated and had three beers!’ The attack apparently occurred after the victim had walked out on her boyfriend while they were attending a party.
	The trial co,,rt granted the defense motion for a psychiatric exammation. stating:
	rm not s~’ing what did or didn’t happen, but it’s a classic opportunity for setting a littk consent and getting caught and yelling it was him, and he ftts seared and cuts his hair.
	(Apparently, the defendant cut his hair after the police h~I first
	talked to him.] There is not a whole lot inconsistent with
	innocence just as there is a lot consistent with guilt.

	I think if~ in the best interest of the Criminal Justice System
and this case that it be done, given the frcts. I think it’s the best thing to do. There are too many problems with this case, too many indications of—fludge ~s interrupted by defense C on nse II.
	Thereafter, the trial judge denied the state’s motion for rehearing. This petiff on followed.
	The state argues first. that the trial judge exceeded his jurisdiction in ordering the victim to undergo a psychiatric examination and second, that even if the trial judge had the
authority to order such examinations, an examination under the
frcts of this case is not warranted.
	In Dinkins it Stare, 244 So.24 148 (Ph. 4th DCA 1971), the fourth district ,~s presented with similar issues, although in the context of a defendant’s appeal from the trial court’s denial of his motion to compel a victim of sexual battery to submit to a psychiatric examination. In affirming the trial court’s denial of the defense modon, our sister court stated that there was no statute or rule in Florida which granted trial courts the authority to order s,,ch exan,inations of victims in sexual battery cases, although then-section 801161, Florida Statutes (1969), provided fiar such examinations in child molestation cases. See also WiTh v. Stote, 217 So.2d 610 (Fla. 3d 1)04 1969) (it was within trial co,urt’s sound discretion to deny defense motion to require psychiatric examination of complaining witnesses in case involving lewd, lascivious or indecent assault upon two minors under fourteen
years of age).’ The fourth district also recognized that several scholars bad advocated that courts did have the powcr to order such examinations. but stated:
Nonetheless, it strikes us as Sound, in the absence of either express statutory authority or court rule permitting such, or in the absence of such strong and compelling evidence of mental or emotional instability of the prosecutrix that denial of a psychiatric examination could amount to a denial of due process of law,.. the court should not subject the prosecutuix to such an examination. Thus, while we do no expressly reject the concept of the court possessing inherent power to require such an examination under the most compelling of circumstances where it is necessary to insure ajust and orderly disposition of the cause would discourage the practice in any hut the most extreme instances.
244So.24* UQTbeevideinspponofthemotior~,ni,~i~ was an affidavit cia pswhiatrist who bad interviewed the defendant and determined that he was competent to stand trial. The affidavit further stated that the psychiatrist believtd the defendant’s ‘trsion of the affair to be credible, and from his own experience he bad found that charges of rape frequently spring from the alleged victim’s emotional disorders. The fourth district concluded that there was no showing that a psychiatric examination of the victim under those ~cts was essential to prevent a miscarriage ofiustice.
hi.
	The third district, citing Dinkins, has held that a dial court did not abuse its discretion in denying a defense motion to require the ncnm cia sexual baurry to undergo a psychiatric enminacion to determine the victim’s competency to testify where the trial court conducted a personal examination and was satisfied as to the victim’s competency. HwJson t~ State, 368 Soid 437 (FIa. 3d DCA l9~9), cen. denied, 381 So.2d 767 (Fla. 1980). See also Futton it State, 352 So.2d 581 (Na. 3d DCA 1977) (trial court properly denied defense tequest that victim of robbery and
attempted nader be submitted to psychiatric examination where request was based on unsubstantiated reports of victims mental
instability).
	In Bawling,. State, 326 So.2d 229 (Ha. 2d DCA), cc’?. denied, 336 So.2d 108 (Ha. 1976). this court, without expressly approving or disapproving. recogniztd the above-cited passage in Dinkins.
In Hawkins, the dcfizndant had requested a continuance to secure the results of certain psychological tests that the victim bad taken so that a psychiatrist could teview them. The Mcbianist. to whom
defense counsel had talked, tentatively expressed the opinion that the victim did not always tell the truth and that she had paranoid tendencies. The trial court denied the motion on the basis that the psychiatrist’s testlinony would be irrelevant since it did not relate to the wimess’ com~tency to testify. In reversing the trial court’s denial, this court stated:
	[Tihe issue in this caAt ‘~s not whether to require the
prosecuting witness to nadergo a psychiatric examination; the
	examination had already been conducted. ~3k believe that
appropriate psychiatric t~timony to the effect dint [the victim’sl
	propensity to tell the nih was affected by her mental and
	emotional condition ,~vuld have been relevant and admissible
fbi the purpose of impeaching her credibility.
326 So.2d at 231.	-
	Unlike in Hawkinr, tIM court is now faced squarely with the issue whether the trial cdurt has the inherent power to require victims of sexual battery to undergo psychiatric or psychological examinations in order to determine their credibility. and if so, whether the tcts of the j~tescnt case support ordering such an exam inatioo.
	The parties correctly f,oint out that there is a split in the decisions on these issues in other jurisdictions. See generally Annotation, Necessity or Pennissibility of Mental &a,nination to Detennine Competency of Credibility of Canplainant in Sexual Ofl~nse Prosecution. 45 A. L.R. 4th 310 (1986); Annotation.
Requiring Complaining Miness in Prosecution for Sex Crime to Submit to Psychiatric &dtninadon, 18 A.L.R. 3d 1433 (1968).
The rationale in jurisdicdbns holding that a court does not have authority to require such examinations is (I) that appointing a psychiatrist to examine a A*itness for credibility usurps the betfinder’s role; (2) that to req,iire a psychiatrist to “vouch” Ar the wiwess’ credibility woWd be another form of required corroboration of sex offenses which has been repealed by the legislatures in these jurisdictions;2 and (3) that such a requirement v~ould invade die victim’s fnivacy and ~~ou1d lilcely result in frwer victims reporting a sexual battery for fear of having to subject themselves to a psychiattic examination. See, e.g.. People it Souvenir, 83 Misc.2d 1018, 373 N.Y.S.2C1 824 (N.Y. Crim. Ct. 1975). Even in jurisdictioiis holding that the trial court does have the authority to require sth examinations, the courts emphasize that such authority should only be exercised for “strong” and
‘compelling’ reasons. See, eg.. Stare it (hrgg. 226 ICax,. 481, 602 P•2d 85 (1979); Forbes it State, 559 S.W.2d 318 (Ten. 1971):
State v. Lederer, 99 Wis.ld 430, 299 N.W.2d 457 (19W). The ~~unh district’s opinion in Dinkinr, while not expressly holding that trial courts possess this authority is aligned with the latter view that even if such authority exists, it should not be exercised unless “strong’ and “compelling” reasons exist- We agree with the view espoused in DMkins.
	Returning to the bets I this case, we hold that the defendant presented neither a saon~ nor compelling reason for requiring the victim to submit to a psychiatric ennnat’on tribe pmpose
of determining her credibility. Pint. there was no evidence presented to suggest that the victim bad a history of psychiatric or psychological prvblems that would have afltc ted her credibility. The only “evidence” ~as the Un sworn motion, and its bctiial allegations, and defense counsel’s representations to the n-iaJj~idge. Even if we were to accept these allegations as frue, there v~as still no strong or compelling evidence to suggest that such an examination was required to prevent a miscarriage of justice. Accordingly, we hold that the trial court departed from the essential requirements of law in ordering the victim to undergo a psychiatric examination. Therefore, we grant the state’s petition, quash the trial court’s order, and remand b~r further proceedings not inconsistent with this opinion.
	Petition for writ of certiorari granted. (FRANK, ACI. and THREADGILL and PARKER, 31., Concur)


	Chspterfl,floridaSlatulesvasrepeoled in 1977, and rwlwd by chapter
917, providing for handling and tnbncntof,nentaily disopie,td sex offenders.
See CI,. 17-312 I 31. Laws of Pie. Section 801.161w not reisined in chapter
917, and as not inoorpomied into chapter ~, relating to lev~Jness and
indecent exposu,t.
	‘V& note iii., section 194022(a). Florida Statutes (1987), providea that die testimo,~ of. sexual baitciy victim need not be conoborated.

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ST PETERSBURG TIMES
MARY JO MELONE
Rape case spotlights treatment of victims

	• In a criminal case, who deserves jfistice?
	The victim?
-; The defendant?
	Ca,, justice serve them both?
	The questions are rarely easily answered. And they are rarely posed as sharply as they are in a case now before Hill sborough Cirtuft Judge Harry Lee Coe.
• Coo’s courthouse ni&name is “Hai,ging Harry.” He has a reput~tion for imposing tou~i sentences,
*ith little sympathy for the guilty. But last week Coe took a highly unusual step to protect a defendant in:a kidnapping and sexual battery case before trial.
7 The judge ordered a woman who said shed been attacked to undergo a psychiatric exam to determine whether she made up ha story. A day later, a state appeals court tern~ari1y blocked the exam and the trial until the court rules on the legality of the psychiatric test.
	-~ The 18-year-old woman who said she was the victim cant be further identified here; the law forbids publicly naming victins of sex crimes. The defendant is William Harold Thomas, a 24-year-old man with an arrest record on theft, drug - and other charges going back nearly six years.
	Late one night last September, ¶he woman was drinking at a party, which she left on her own. She said she was soon aMucteA by five men in a car and forced at gunpoint to perform a sex act on the driver before she escaped.
Thomas was iat& charged with the offense after being arrested for I unrelated crimes. Thomas matched a compd~it~ drawing the victim wade of th~ driver and her assailant and she later selected his picture from a stack of photograjihs. Hut after he was first questioned, the prosecution said, Thomas cut his hair, which had been his most distina

guishing feature.
	The victim also described a car that somewhat reseMbled Thomas’. There was no positive rixedical evidence that a sex act had occurred, but there v,ere grass stains on her clothes.
	That’s about all the evidence tbereis.Asoftenbappensrnseztial assault cases, this One is largely a matter of the victins word against the suspect’s.
	Thomas’ public defender said the woman offered differing ver~ions of the event. He charged that she concocted the story to get revenge on her boyfriend. The prosecution countered that shed been traumatized by the incident and that forcing her to be examined would, in effect, put her on trial rather than her alleged assailant.
	“I am not saying what did or didn’t happen, but it’s a classic o~ jiortunity for getting a little consent and getting caught and yelling it was him, and he gets scared and cuts his hair,’ Judge Coe said at the first of two hearings on the request for an examinati on. Coe said it ivould be about as easy to believe in Thomas’ innocence as in h~s gvilt.
	The judge.’has a point. Hot why aidhe also raise other questions about the woman’s poesible complicity? Why did he make h decision without listening to her testimony or that of any other televant witnesses? Why didhe agree to a paycluatnst chosen by the defense?

‘ Coo didn’t return phone calls seeking answers to those questions. Wbat’s troubling about his courti)om remarks is that women who suffer s~xmI assault have all too ~jten been told they were somehow to blame. That’s why most communities, including Tampa, have rape crisis centers to assist victims.
	On the other hand, the Constitution stAnds on the side of William Harold Thomas. Nothing can be assumed from his past arrests. The ~friminaI justice system operates oti the belief that it is better to sometimes let the guilty go free than to convict an innocent man. His lawyer says that Thomas has passed a polygraph test, and that he has a right to the most vigoro&s defense possible.

	That’s for dertain. But Thomas’ alleged victim has her own view. “I don’t have a criminal recdrd, and they say I’m lying,” she said. “They’re doubting me: and I didn’t A0 miyThingP