Defense counsel has filed a motion to have my child victim examined by a psychiatrist for competency in an agg. sex. ass. case. Has anyone come across this issue? Obviously, I think this is little more than a tactic to harrass my victim and try to intimidate her. We agree that she is mildly retarded, but she knows the difference between right and wrong and she knows what happened to her. The defendant alleges that she is incapable of telling the truth. He claims he would not be able to effectively cross-examine her without the expert assistance of an examining psychiatrist.

I had this question come up in Ft. Bend but there the defense wanted a shrink to determine my victim's competency to testify under 601(a)(2) which clearly states that the Judge does the examination. However, 601(a)(1) while not as specific does say "in the opinion of the Court" so I'd say its up to the Judge to make that determination. I have a few good cases where kids were found competent by the court if you want the sites.

Since she is a sex asslt victim, is she seeing a therapist already ? And if so under what theory does he get his own therapist instead of having her therapist give a report to the court ?

And see if In Re State ex rel Robinson 116 sw3d 115, helps you any.

Just random thoughts. Let us know what happens.

[This message was edited by Stacey L. Brownlee on 05-23-06 at .]

Check out State ex rel Holmes v. Lanford, 764 S.W.2d 593. It's been a while since I've read it, but I think it is directly on point and in your favor.

Also, to a lesser extent, Wade ex rel v. Stephens, 724 S.W.2d 141 may help.

I've had several defense attorneys try to pull this and have successfully used Holmes to shut them down every time.

It will likely come up for a hearing in the next month. I'll let you know. Thanks for the help.

Every few months, some defense attorney drags out that motion. The appellate courts have ruled that trial courts have no legal authority to order examination of a victim -- medically or psychologically. Any such order should be subject to a writ of prohibition.

CPS and criminal case running at same time. Respondents (non-protective mother and perp father) want victim psyched as part of the CPS case. Lexis search has not turned up much.