Two bills that would set new standards under which a court may order a physical or psychological examination of alleged victims of sexual assault during criminal and civil proceedings have been introduced.

Both measures—A-5643 and A-5646—are sponsored by Assemblywoman Carol Murphy, D-Burlington, co-chairwoman of the Assembly Judiciary Committee, on Monday.

Murphy said she introduced the bills to better protect sexual assault victims.

“They're to assure that it has to be extremely difficult [to get] a court order for [victims] to get tested again just to assure that the rape or the sexual assault happened,” Murphy told the Law Journal Thursday, just before the start of the final Assembly voting session before the Legislature adjourns for a two-month summer recess.

“Even though it's not often, it is known to happen that when you go in the courtroom, whether criminal or civil, that sometimes the tactic is to have the victim retested … which doesn't really do anything” to bolster the case's evidence, she said.

“That victim should not be subject to additional victimization through a court order,” she added.

“That examination can have consequences that are not intended, but it can revictimize them, and that's one thing I want to look at,” Murphy said. “Whether it's sexual assault, rape, physical abuse, anything, and whether it's women or men being sexually abused, I wanted to assure that we had something on the books to say it cannot happen.”

A-5643 pertains to the circumstances under which a court may order a physical or psychological examination of an alleged victim of sexual assault in a civil action filed by the victim for damages arising out of the alleged sexual assault. The bill would amend Title 2A of the New Jersey Statutes.

A-5643 has not yet been referred to an Assembly committee, nor has a Senate version of the bill been introduced.

In criminal cases, the New Jersey Supreme Court has set forth the standard for compelling, at the request of a criminal defendant, an alleged child victim of sexual assault to submit to a physical examination for evidence relating to the alleged sexual abuse.

In the high court's 1992 decision in State v. D.R.H., it held that courts may order a physical examination for a child sex-abuse victim only when satisfied that the defendant has made a sufficient showing that such an examination can produce competent evidence that has substantial probative worth; and if admitted and believed by the trier of fact, such evidence could refute or neutralize incriminating evidence or impugn the credibility of prosecution witnesses. The decision further held that the court must be satisfied that the defendant's need clearly outweighs the possible harmful consequences to the alleged victim in such cases.

A-5643 codifies a higher standard of proof than the standard set forth in State v. D.R.H., according to its sponsor, and applies it to alleged victims who file civil actions for damages arising from an alleged violation of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, or human trafficking involving sexual activity.

The heightened standard sought under the bill relates to both physical and psychological examinations, and to both adult and child alleged victims of sexual assault who are suing for damages.

Under A-5643, a court may order a physical or psychological examination of an alleged victim of the various violations listed, on motion and after conducting a hearing in camera, provided the court makes sufficient findings as set forth under the bill.

Before ordering an examination, the court would be required to determine that the defendant in an alleged sexual assault makes a sufficient showing, by clear and convincing evidence, that:

• An examination of the sexual assault victim in a civil suit can produce competent evidence that has “overwhelming probative worth”;
• The evidence produced by the examination, if admitted and believed by the trier of fact, could refute or neutralize incriminating evidence or impugn the credibility of a prosecution witness; and
• The need for an examination clearly outweighs the possible harmful consequences to the alleged victim.

The other measure Murphy introduced Monday was A-5646, which has an identical Senate version, S-4017. They have been referred to the Law and Public Safety Committee of each chamber.

A-5646 seeks to apply the same “overwhelming” standard for physical or psychological examination of an alleged sexual assault victim in a criminal proceeding by amending Chapter 61B of Title 2A of the New Jersey Statutes. The bill states that a court can order a physical or psychological examination of the victim only if the exact same circumstances under A-5643 are met, and the defendant makes a convincing argument that the exam has “overwhelming” probative worth; it could refute or neutralize incriminating evidence or impugn the credibility of a prosecution witness; and the need for it outweighs potential harm to the victim.

Both A-5646/S-4017 and A-5643 would take effect immediately after full legislative approval and the governor's signature.

Assemblywoman Murphy said she expects both bills to be heard and possibly amended in committee in the next session when the Legislature reconvenes in the fall.

“Both bills are to strengthen the criminal and civil process for victims of sexual assault to ensure they are protected,” she said.