Two bills introduced in the New Jersey Legislature aim to limit when judges can order physical or psychological exams of sexual assault victims.
It comes amid efforts across the country to clamp down on a practice that sexual-violence prevention advocates say can retraumatize survivors seeking justice.
“No one should ever have to be ordered to go through that trauma all over again,” said Assemblywoman Carol Murphy, D-Burlington, who sponsored the legislation. “We want to make sure that if it’s ordered, it’s at the highest standard that a court has to meet.”
The two bills — one to deal with criminal cases (A5646) and the other for civil litigation (A5643) — would only allow judges to order physical or psychological exams of victims if there would be “overwhelming probative worth” in the results and if the need for the exam outweighed the potential harmful impact on the alleged victim.
Murphy said that it is not a widespread problem in New Jersey, but that her legislation would close a legal loophole.
Earlier this year, the West Virginia Senate passed legislation banning judges from ordering physical exams of sexual-assault survivors, according to the Herald Dispatch in Huntington.
One victim who spoke to WHYY and wanted to be identified only as Lisa said she underwent what she called a “court-ordered rape” in New Jersey in 1998 when she was suing in civil court a former partner who had given her a sexually transmitted infection.
“The last thing I remember is I thought I was screaming and I couldn’t wake up and I was screaming ‘Lisa, wake up! Lisa, wake up!’ And that’s all I remember,” she said.
Lisa said that the experience left her with post-traumatic stress, panic attacks, and nightmares — that she still experiences two decades later. She has pushed for legislation to ban the practice in New Jersey and other states.
Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault, praised the proposed legislation but said she remains concerned that some judges are ignorant of how sexual assault impacts victims and how the judicial process can re-victimize them.
“There has to be a multipronged approach, not just to address this particular issue with mandated gynecological exams, but also making sure that our judges in all cases have the baseline understanding necessary to affirm the lived experiences of survivors when they’re actually able to make it into a courtroom,” she said.
Teffenhart pointed to several recent examples of New Jersey judges making insensitive comments during sexual assault cases.
In one instance, retired Judge James Troiano said a 16-year-old boy should not have been tried for rape as an adult because he came from a “good family.” Troiano will no longer hear cases. Last week, amid controversy over his comments, he requested the state Supreme Court remove him from the bench, sending him back to retirement.
The high court also initiated removal proceedings against Judge John Russo, who asked a woman in 2016 if she should have closed her legs to stop an alleged sexual assault.
A third judge, Marcia Silva, is facing scrutiny for apparently minimizing the trauma a 12-year-old girl faced after allegedly being raped by her 16-year-old boyfriend. The state’s Advisory Committee on Judicial Conduct is now investigating Silva’s comments.