Goodson v. State

For the Court:

I.

Today’s appeal charges once again that we vindicate the right of one accused of child sexual abuse to a fair trial according to accepted rules of evidence, while at once shielding the complainant from undue additional trauma, nor undermining the people’s powerful interest in persistent prosecution of abusers. All of this we may seek only according to law. Because the trial court allowed the jury to hear an inadmissible expert opinion, we reverse and remand for a new trial.

II.

Richard Dale Goodson was born on August 15, 1939, and most recently has worked in Alabama. Goodson was the defendant below and is the appellant here.

Sonya T. was born on January 24, 1972, and is Goodson’s niece. Between the years when she was six and ten years old Sonya’s family lived in Tishomingo County. During that time she says Goodson occasionally fondled her and raped her. Four years after the last incident, Sonya told her mother that she had been “abused and molested.”

Sonya’s parents have been married for seventeen years and have two girls, Sonya and a sister, three years younger. The family moved to Iuka in 1976 and left in 1982, then moving among several different northern states, coming back to live in Iuka from January until April, 1986. On February 8, 1986, Sonya told her mother of the alleged incidents with her uncle.

This criminal prosecution was formally commenced in April of 1986 when the Tish-omingo County Grand Jury returned an indictment charging Goodson with forcible rape of a female under fourteen years of age. Miss.Code Ann. § 97-3-65(1) (Supp. 1989). The case was called for trial on April 17, 1987. Witnesses for the prosecution included the victim, her mother, and Dr. Linda Chidester who is engaged in the practice of medicine in Mantachie, Mississippi. Goodson took the witness stand in his own defense and denied all charges.

In due course, the jury found Goodson guilty of rape but was unable to fix the penalty. On the same day, April 17, 1987, the Circuit Court sentenced Goodson to serve a term of twenty years in the custody of the Mississippi Department of Corrections. This appeal has followed.

III.

Goodson first challenges the legal sufficiency of the evidence against him. He suggests the Circuit Court erred when it denied his motion for a directed verdict of acquittal and, thereafter, his motion for judgment of acquittal notwithstanding the verdict of the jury.

The Circuit Court properly denied these motions.

In passing on motions for directed verdicts and requests for peremptory instructions of not guilty, all evidence on behalf of the State is taken as true, together with reasonable inferences that may be drawn therefrom, and, if there is sufficient evidence to support a verdict of guilty, the motion for directed verdict must be overruled and peremptory instruction must be denied. Barker v. State, 463 So.2d 1080 (Miss.1985); Shelton v. State, 445 So.2d 844 (Miss.1984); Wilks v. State, 408 So.2d 68 (Miss.1981); Bayse v. State, 420 So.2d 1050 (Miss.1982).

Gill v. State, 485 So.2d 1047, 1049 (Miss.1986); see also McKinney v. State, 521 So.2d 898, 899 (Miss.1988); McFee v. State, 511 So.2d 130, 133-34 (Miss.1987); Christian v. State, 456 So.2d 729, 734-35 (Miss.1984); Otis v. State, 418 So.2d 65, 67 (Miss.1982), Davis v. State, 406 So.2d 795, 801 (Miss.1981). The same standard applies when we review a denial of an accused’s post-verdict motion for judgment of acquittal. Faithful application of that standard yields affirmance on this issue.

IV.

A.

Goodson next argues that the Circuit Court erred when it overruled his objection to Dr. Linda Chidester’s opinion testimony that Sonya had suffered sexual trauma. The opinion was given during the prosecuting attorney’s direct examination of Dr. Chidester. Context is important.

Q. Was there anything unusual about Sonya’s behavior or disposition that you noticed when you did the examination?

A. Yes, she was [objection raised by defense] ... She was extremely upset and frightened by the pelvic exam. She was crying. She did not want me to do the exam. When she first came, she said that she was not going to let me examine her. And then after talking to her and finally in the end just by being professional and saying, ‘Sonya, get undressed, put the sheet over you, put on the gown, I will be back in a moment’; and, walking out of the room and closing the door, then she did what I told her to do.

Q. Dr. Chidester, do you examine many girls and young women like Sonya in your practice?

A. I examine a good many young girls in my practice, yes.

Q. As compared to these others, would you call her behavior unusual?

A. Extremely unusual, yes.

Q. All right. Does this indicate anything to you as a doctor, or do you have an opinion based upon your experience as a doctor, and in the area of gynecology, and based upon reasonable medical certainty, is this indicative of anything to you.

[There was an objection by defense and the judge allowed Dr. Chidester to answer on the basis that she qualified as an expert.]

A. I think it indicates that she had been sexually traumatized in some way.

Up to and including Dr. Chidester’s opinion testimony that Sonya’s reaction was “extremely unusual,” we perceive no error. Such opinion testimony is wholly admissible by virtue of Rules 702 and 703, Miss.R.Ev. The problem arises in Dr. Chidester’s subsequent opinion, presented over Goodson’s objection, that Sonya “had been sexually traumatized.” The point is of importance, for Dr. Chidester’s opinion, together with another item of evidence discussed below, goes far toward establishing the corpus delicti.

B.

Dr. Chidester is a practicing physician. She is not qualified as psychiatrist or psychologist. Dr. Chidester gave no evidence of any specialized training in the field of child sexual abuse. Prior to expression of the opinion in issue, Dr. Chidester had stated only that “I examine a good many young girls in my practice.” Less than prudent cross-examination elicited an “I have had a tremendous amount of experience in child sexual abuse,” but no details are provided.

Our rules regarding admission of expert opinion testimony are found in Rules 702 and 703, Miss.R.Ev. Like rules are in force in most jurisdictions, and in this context we begin by noting the counsel of a thoughtful and comprehensive interdisciplinary commentary.

Courts should proceed cautiously when considering the admissibility of expert testimony on child sexual abuse. It is vitally important that professionals offering such testimony be highly qualified. Courts should insist on a thorough showing of expertise before permitting individuals to testify as experts.

Myers, et al., supra, 68 Neb.L.Rev. at 145.

This counsel of caution is by no means limited to child sex abuse cases. “Generally, under our new Rules of Evidence, the decision of whether or not an expert witness is qualified to testify is within the trial court’s [sound] discretion.” May v. State, 524 So.2d 957, 963 (Miss.1988) (citing Detroit Marine Engineering v. McRee, 510 So.2d 462, 467 (Miss.1987); Hooten v. State, 492 So.2d 948 (Miss.1986)). “The test is whether a witness ‘possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman.’ ” May, 524 So.2d at 963 (citing McRee, 510 So.2d at 467; Henry v. State, 484 So.2d 1012, 1015 (Miss.1986)). May makes clear that Rule 702 “does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within his purported field of knowledge.” May, 524 So.2d at 963.

Of significance, the prosecution in its brief on appeal makes no effort to defend Dr. Chidester’s qualifications as an expert. To the contrary, the prosecution argues only that the contested opinion was admissible as a lay opinion, presumably under Rule 701, Miss.R.Ev. No doubt there are occasions when one who by profession possesses expertise may properly offer a lay opinion. Here Dr. Chidester was proceeding in her professional capacity. The record falls far short of establishing that Dr. Chidester had the professional competence to give the opinion at issue with the level of reliability our law demands of evidence offered at trial.

C.

There is a second, more fundamental problem. Assuming arguendo that Dr. Chidester may be qualified as an expert in the field of child sexual abuse, there remains the serious question whether the particular opinion at issue — that Sonya “had been sexually traumatized” — was admissible.

Affirmative answers to two interrelated but separate questions must precede the factfinder’s receipt of an expert’s opinion: (1) “Is the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion?” Miss. Farm Bureau Ins. Co. v. Garrett, 487 So.2d 1320, 1326 (Miss.1986); Handy v. Brantley, 471 So.2d 358, 366 (Miss.1985); House v. State, 445 So.2d 815, 822 (Miss.1984); see also, May, 524 So.2d at 963; and (2) will the proposed testimony assist the trier of fact? Rule 702, Miss.R.Ev.; Hosford v. State, 560 So.2d 163, 168 (Miss.1990).

Though her language is loose, Dr. Chi-dester offered her opinion that Sonya was a sexually abused child. This is of concern, as it is doubtful that there is any such thing as a scientifically established child sexual abuse profile, a doubt we expressed only a few weeks ago in Hosford. The thoughtful literature on the subject seems virtually unanimous that such opinion testimony should not be admitted. Myers, et al., supra, 68 Neb.L.Rev. at, 66-69; McCord, supra, 77 Journal of Criminal Law and Criminology at, 18-41; Cohen, supra, 74 Georgetown L.J. at 440-44. In this setting, Hosford admonishes:

Until such time as a profile has been scientifically established, courts should be reluctant to allow expert [opinion] testimony that a child displays the so-called typical characteristics of other [sexual] abuse victims.

Hosford, 560 So.2d at 168. We have never accepted the field, and the prosecution made no effort to establish it.

Many states have banned expert opinion testimony that a child has been sexually abused. See, e.g., State v. Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673, 676 (Ct.App.1984); Johnson v. State, 292 Ark. 632, 639, 732 S.W.2d 817, 821 (1987); State v. Lash, 237 Kan. 384, 385, 699 P.2d 49, 50-51 (1985); State v. Black, 537 A.2d 1154, 1157 (Me.1988); State v. Castore, 435 A.2d 321, 326 (R.I.1981). Others allow it. Glendening v. State, 536 So.2d 212 (Fla.1988); Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987). The most considered opinion on the point is that of Prof. Myers and his colleagues.

Because of disagreement among experts on child sexual abuse, and because of the consequences of criminal conviction, it may be appropriate in criminal jury trials to eschew behavioral science testimony cast in terms of a direct opinion that sexual abuse occurred.

Nothing said here establishes any special rules for expert opinion testimony in child sexual abuse cases. Rules of law must proceed out of respect for the realities of the phenomena they seek to regulate, if justice is to be served. Our reading of Rule 702 only recognizes that the behavioral sciences do not generate opinions that are accepted with confidence as great as those emanating from experts in the natural or physical sciences. These differences inhere in the nature of the several sciences. The rule is the same. The phenomena regulated are what differ.

We reject the opinion at issue for want of an established and accepted scientific predicate and because nothing in the record shows Dr. Chidester qualified as an expert within the burgeoning and controversial field of child sexual abuse. Beyond these, attention to the specifics of Dr. Chidester’s testimony is hardly reassuring. Dr. Chi-dester saw Sonya but once — for at most an hour and forty-five minutes. The record reflects but three predicates for her opinion: (1) the history Sonya gave, (2) the physical finding of absence of a hymenal ring (to be discussed below), and (3) Sonya’s reaction to a pelvic examination.

The history, of course, was properly admitted. See Rule 803(4), Miss.R.Ev. The absence of a hymenal ring, and nothing more, is of little consequence — especially fours years after the fact. Sonya’s reaction to the pelvic examination is problematic. In the first place, this is not among the factors researchers have found particularly probative of sexual abuse. More significant, Dr. Chidester in no way explained how Sonya’s reaction generated the opinion she offered. She testified that “I see a lot of young girls” and “I have had a tremendous amount of experience in child sexual abuse,” yet she labeled Sonya’s reaction “extremely unusual” and said “I have never had one to cry before (until Sonya).” What is glaringly absent is what, in Dr. Chidester’s experience, suggested to her that Sonya’s reaction was indicative of sexual abuse. If she has had a “tremendous amount of experience in child sexual abuse” but has “never had one cry before,” common sense casts doubt on the credibility of Dr. Chidester’s opinion that Sonya’s crying was an idicia that she had been sexually abused. With this meager predicate, opinion testimony that Sonya “had been sexually traumatized in some way” is quite dubious.

Hosford is important. The prosecution had presented a similar opinion through an expert who, according to the record, was much more qualified than Dr. Chidester. The prosecution there fully developed a predicate for the expert’s opinion. Notwithstanding, Hosford held “improper” the expert’s testimony regarding the characteristics of child sexual abuse victims, noting the authorities cited here. 560 So.2d at 168. Hosford held the error harmless only because of the peculiar context that the defendant had predicated his entire trial strategy on the premise that the prosecu-trix was indeed a victim of sexual abuse while a young child, only that the abuse had been committed by others. Richard Dale Goodson has not for a minute admitted that Sonya has been sexually abused. Hosford commands reversal here.

D.

In sum, the record falls far short of establishing that Dr. Chidester had the professional competence in the field of child sexual abuse to give the opinion at issue with the level of reliability Rule 702 and our law demand of evidence offered at trial. Moreover, the prosecution made no effort to show that behavioral science has developed to the point where even the most knowledgeable experts in the field may give opinions that sexual abuse has occurred with the required level of reliability. As such, there was a substantial probability that the jury would be misled by Dr. Chidester’s opinion. The Circuit Court erred when it overruled Goodson’s objection to the opinion at issue.

We hold further that this error “affected” Goodson’s substantial right to a fair trial. Rule 103(a), Miss.R.Ev. In the factual context before us, we could not in candor suggest the error may have been harmless.

V.

Goodson argues further that the Circuit Court erred when it refused to allow him to present evidence of Sonya’s sexual activity between the time she says he raped her in 1982 and the time she was first examined by Dr. Chidester in 1986. The evidence at issue was that of defense witness, Chris Garner, who says that he was a friend of Sonya’s at school. Sonya had previously testified that Goodson had raped her and that she had told Garner this. The Circuit Court quite correctly allowed Garner’s denial that Sonya ever told him her uncle had raped her. At issue is Goodson’s further proffer that Sonya told Garner she had had sex “with one of her boy friends ... while she lived up North.” The testimony points to an alternative explanation of Dr. Chides-ter’s finding that Sonya had lost her hyme-nal ring.

Testimony in such form is not in any event admissible as substantive evidence. What Goodson offered was not within any exception to the hearsay rule enumerated in Rule 803, Miss.R.Ev. Because Sonya T. is not a party opponent within Rule 801(d)(2) and the statement attributed to Sonya T. does not fall within Rule 801(d)(1), what Goodson offered may not be received as an admission. It may, however, have been used as impeachment, provided Sonya T. was afforded the opportunity to explain or deny what Chris Garner says she told him. Rule 613(b), Miss.R.Ev. Because the problem will likely recur on remand, and because the matter is one of broad concern, we consider it with some care.

Ordinarily, the fact that a rape victim may not have been a virgin is wholly irrelevant. A prostitute has as much right not to be raped as any other person. Context is critical to Goodson’s claim.

To begin with, the prosecution called Sonya T. who testified that Goodson had raped her. The prosecution then presented Dr. Chidester who testified that on August 22, 1986, she performed a “normal pelvic examination on Sonya.” Upon this examination, Dr. Chidester found that the victim’s hymenal ring was gone. Dr. Chides-ter went on to explain that some girls do not have a hymenal ring while others lose it through trauma other than sex. “[TJhis tissue sometimes can be lost for various reasons, sexual intercourse being one of the more obvious ones.” This was the only physical finding offered by the prosecution in support of the charge that Goodson had raped Sonya. Sonya’s age gives the point its potency. The empirical data aside, many believe a teenage girl may only lose her hymenal ring through sexual experience. The prosecution presented Dr. Chi-dester so that it could point the finger at Goodson. In this context, the defense sought to impeach Sonya’s testimony that Goodson had raped her by offering Garner to testify that Sonya had told him that she had had sex with a boyfriend “up North.” The unmistakable import of Sonya’s testimony, coupled with that of Dr. Chidester, was that Goodson caused Sonya’s loss of her hymenal ring by raping her. As the point was central to the prosecution’s case, Sonya’s testimony was subject to impeachment by the defense by showing that she had made a prior inconsistent statement, i.e., a statement suggesting that she was not worthy of belief on her explanation for Dr. Chidester’s 1986 physical finding.

The question arises under Rule 412(b)(2)(A), Miss.R.Ev., the so-called rape shield rule, which limits what the accused may tell the jury of the victim’s

past sexual behavior with persons other than the accused, offered by the accused ... [as evidence relevant to] the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen, pregnancy, disease, or injury.

The purpose of the rule is to prevent defense counsel from putting the victim “on trial,” from unfairly invading the victim’s privacy and from deflecting the jury’s attention from the true issue. The rule reflects recognition that the trial process at best is traumatic to the victim of sexual abuse. If she has reason to believe the most intimate details of her life are going to be bandied about the courtroom, many victims will decide the game is not worth the candle and decline to file a complaint.

Our first question is whether for purposes of the rule “past sexual behavior” refers only to sexual behavior occurring prior to the date of the offense charged in the indictment, or whether it refers to sexual behavior at any time in the past, i.e., prior to trial. The answer is and always has been the latter. The relevance of other sexual behavior of the victim which may explain the source of semen, pregnancy, disease or injury and thus exonerate the accused, as a matter of common sense, is not necessarily affected by whether it occurred before or after the event charged in the indictment. Conversely, the reasons why it would be unfair to delve into the victim’s sexual experience prior to a rape extend equally to post-rape sexual activity.

This point settled, our question becomes whether the absence of a hymenal ring is a “disease or injury” within Rule 412(b)(2)(A). In today’s context, we answer in the affirmative, for the reasons presently provided.

The Michigan Supreme Court addressed the general point in People v. Mikula, 84 Mich.App. 108, 269 N.W.2d 195, 198 (1978). One of the issues in Mikula was whether the Michigan rape shield statute prohibited the admission of evidence of the complainant’s sexual conduct with persons other than defendant if such evidence was offered for the sole reason of explaining the condition of the complainant’s hymen and vaginal opening. Mikula, 269 N.W.2d at 197.

It is well settled that where the prosecution substantiates its case by demonstrating a physical condition of the complainant from which the jury might infer the occurrence of a sexual act, the defendant must be permitted to meet that evidence with proof of the complainant’s prior sexual activity tending to show that another person might have been responsible for her condition.

Mikula, 269 N.W.2d at 198 (citations omitted).

The Mikula court then considered whether that state’s legislature had changed this rule by not expressly authorizing introduction of such evidence in the rape shield statute. Id.

We conclude, therefore, that the Legislature intended that evidence of specific instances of sexual activity is admissible to show the origin of a physical condition when evidence of that condition is offered by the prosecution to prove one of the elements of the crime charged provided the inflammatory or prejudicial nature of the rebuttal evidence does not outweigh its probative value.

Id.

Here no question has been raised regarding the competency of Dr. Chidester’s testimony regarding her physical findings. Still note should be taken of Mikula’s consideration of similar testimony in light of the six month delay between the rape and the medical examination.

A physician’s testimony regarding the condition of a complainant’s genital area is competent circumstantial evidence of the fact of penetration ... Whether such testimony should be excluded because of the lapse of time between the incident and the examination must be determined in light of the facts and circumstances of the case....

However, a foundation must be laid for such testimony. There must be some evidence of the complainant’s physical condition prior to the alleged assault. In the instant case, there was no evidence concerning the complainant’s physical condition prior to the alleged incident. Unless such evidence is introduced, the medical testimony is irrelevant and immaterial.

Mikula, 269 N.W.2d at 199 (citations omitted). The relevance of this reasoning to retrial of the case at bar is readily apparent.

Other cases holding that source of injury relevant include: State v. Murphy, 134 Vt. 106, 353 A.2d 346 (1976) (improper exclusion of testimony that injury to child’s genitals may have been caused by masturbation); State v. Baron, 58 N.C.App. 150, 292 S.E.2d 741 (1982) (improper exclusion of evidence that complainant tried to insert tampon prior to alleged rape and experienced much pain); see also United States v. Kasto, 584 F.2d 268, 271 n. 2 (8th Cir.1978).

There is an abundance of thoughtful commentary considering the point and supporting admissibility.

The prosecution often introduces evidence of the complainant’s physical condition, typically evidence of pregnancy, injury (e.g., a torn hymen), venereal disease, or the presence of semen, and from this evidence the jury infers that the alleged sexual contact between the defendant and the complainant actually occurred. Following the introduction of evidence of the complainant’s physical condition, evidence of the complainant’s pri- or sexual conduct is relevant to the issue of whether the alleged sexual contact occurred if the sexual conduct evidence shows that the prosecution’s evidence could have come from a source other than the defendant.

Comment, Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence, 1985 Wis.L.Rev. 1219, 1233-34. Another commentator has reasoned:

Consider the following hypothetical case: The prosecution, in attempting to prove the rape’s occurrence, offers evidence that semen was found in the victim’s vagina shortly after the alleged assault. The accused wishes to make a showing that on the very same day and prior to the medical examination, the woman had intercourse with X. Or take two slightly different instances: The state tries to corroborate the crime by proof that the victim is pregnant or is suffering from a venereal illness. The defendant wants to show that Y had sexual relations with the complainant around the time when she must have conceived or that, prior to the onset of the disease, Z and others had been intimate with her. If the accused is not conceding that he committed the act (as, for example, by claiming consent) but rather is striving to point the finger at someone else, the law should not deny him crucial proof on these issues merely because it has the effect of revealing some of the victim’s history. Placed in the scales of due process, the defendant’s need to use this matter will, in the absence of special factors, clearly outweigh the state’s general exclusionary interest. Not only does the evidence relate to the actor’s identity much more closely than sexual behavior viewed as “character” bears on consent on a given occasion; it also covers a very limited range of conduct occurring over a brief period, not a lifetime’s worth of experience. Moreover, in contrast to the use of these facts to evince consent or lack of veracity, here the evidence — albeit intimate or even embarrassing — does not exploit sexist stereotypes of women, and accordingly is less innately offensive. Therefore, since it serves an important probative function at minimal expense to the rape complainant, the judge should presumptively let it in.

Berger, Man’s Trial, Women’s Tribulation: Rape Cases in the Courtroom, 'll Colum.L.Rev. 1, 57-58, 98 (1977).

A rape complainant’s testimony is usually corroborated by physical evidence— the presence of semen, resulting disease, or pregnancy. Often forcible rape cases also include testimony about the infliction and extent of physical injury to the victim. Proof that another man engaged in sexual intercourse with the complainant at or near the time of the alleged rape provides an alternative source of the physical evidence and is therefore obviously relevant. For this reason, many states permit the defendant to introduce evidence that someone other than himself was responsible.

Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 584 (1980) (citations omitted).

Professors Wright and Graham reason that an accused should be allowed to introduce past sexual behavior evidence whenever the prosecution produces evidence of “any physical consequences” to prove that the act took place. 23 C. Wright & K. Graham, Federal Practice & Procedure § 5388, at 598 (1980); see Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn.L.Rev. 763, 818-25 (1986) (exception should be directed to all possible physical consequences of rape alleged by prosecution); cf. Note, Indiana’s Rape Shield Law: Conflict with the Confrontation Clause? 9 Ind.L.Rev. 418, 425 (1976) (there is also obvious probative value to evidence which discloses previous intercourse with someone other than the defendant when such evidence can account for a physical fact in evidence at the trial * * *). See also Rothstein, New Federal Evidence Rule 412 on Sex Victim’s Character, 15 Crim.L.Bull. 353, 359-61 (1979); Spector & Foster, Rule 412 and the Doe Case: The Fourth Circuit Turns Back the Clock, 35 Okla.L.Rev. 87, 102, 105-07 (1982); Note, United States v. Shaw: What Constitutes an “Injury” Under the Federal Rape-Shield Statute, 43 Univ.Miami L.Rev. 947 (1989).

We are not unaware of United States v. Shaw, 824 F.2d 601 (8th Cir.1987), holding that the condition of a rape victim’s hymen is not an “injury” within Rule 412(b)(2)(A), Fed.R.Ev. We consider that the authorities cited and quoted from above, both in their holdings and their reasoning, show Shaw as simply wrong. We hold that, where the prosecution proves the condition of the victim’s vaginal opening to induce belief that the condition is the result of an injury-producing and otherwise illegal act of sexual violence committed by the defendant, that injury-produced condition is an injury within our Rule 412(b)(2)(A). We considered an analogous point in Murriel v. State, 515 So.2d 952, 954-56 (Miss.1987). The prosecution had presented testimony that the ten-year-old victim had had an abortion. Evidence that the abortion had followed pregnancy caused by defendant was tenuous at best. Going further than is required today, the Court held the potency of the prosecution’s point so prejudicial that a mistrial should have been ordered, notwithstanding that defendant was allowed to show he was not responsible for the pregnancy and resulting abortion. See also Stokes v. State, 484 So.2d 1022, 1025 (Miss.1986). The Murriel principle is at least broad enough to hold here that Good-son of right could offer competent evidence that his actions may not have caused Sonya’s loss of her hymenal ring.

On remand this matter is committed to the Circuit Court’s discretionary authority within Rule 412(c)(3), Miss.R.Ev., but to be exercised in a manner not inconsistent with this opinion.

VI.

Goodson also argues that the Circuit Court erred in allowing Dr. Chidester to say that Sonya told her that her uncle had sexually abused her and, more important, that she, Dr. Chidester, was of the opinion that Sonya was telling the truth. The point may not ground reversal, for the record reflects Goodson “opened the door.” Because the issue appears likely to recur on remand, we address it.

Put generally, the question is whether under Rule 702 the trial court may admit expert opinion testimony that a child alleged to have been the victim of sexual abuse is telling the truth. In Williams v. State, 539 So.2d 1049, 1051 (Miss.1989), we said such testimony would be “of dubious competency.” We repeated the doubt in Hosford, 560 So.2d at 166-67. Hall v. State, 539 So.2d 1338, 1341 n. 1 (Miss.1989), recognizes this as a “hotly disputed legal issue,” but did not address the question. Before Rule 702 became law, the Court had held that a psychologist who hypnotized an eight-year-old girl could not testify that in his opinion the girl was telling the truth when under hypnosis she said the defendant had sexually abused her. House v. State, 445 So.2d 815, 821-23 (Miss.1984).

The law forbids use as evidence the results of a lie detector test. Garrett v. State, 549 So.2d 1325, 1330 (Miss.1989); Miskelley v. State, 480 So.2d 1104, 1108 (Miss.1985); Pennington v. State, 437 So.2d 37, 40 (Miss.1983); Jordan v. State, 365 So.2d 1198, 1204 (Miss.1978). On what basis can the court find that a physician’s opinion of the truthfulness of a child is more reliable than a lie detector’s “opinion” of the truthfulness of the person tested? One authority reports “that behavioral scientists themselves recognize that they have no particular expertise in evaluating the credibility of a child abuse complainant.” McCord, supra, 77 Journal of Criminal Law and Criminology at 44. Prof. Myers and his colleagues have carefully considered the point and conclude that “[i]t is appropriate to prohibit expert testimony that a child told the truth on a particular occasion.” Myers, et al., supra, 68 Neb.L. Rev. at 127; see also Myers, supra, 28 J.Fam.L. at 19-20. And the overwhelming majority of courts preclude such testimony. See, e.g., State v. Moran, 151 Ariz. 378, 385, 728 P.2d 248, 255 (1986), where the court wrote:

Experts called to testify about behavioral characteristics that may affect an alleged victim’s credibility may not give an opinion of the credibility of a particular witness. Psychologists and psychiatrists are not, and do not claim to be, experts at discerning truth. Psychiatrists are trained to accept facts provided by their patients, not to act as judges of patients’ credibility.

See also Thompson v. State, 769 P.2d 997 (Alaska Ct.App.1989); State v. Lindsey, 149 Ariz. 472, 474-75, 720 P.2d 73, 75-76 (1986); People v. Oliver, 745 P.2d 222, 225 (Colo.1987); People v. Ross, 745 P.2d 277, 278 (Colo.Ct.App.1987); Tingle v. State, 536 So.2d 202 (Fla.1988); Head v. State, 519 N.E.2d 151, 153 (Ind.1988); Lawrence v. State, 464 N.E.2d 923, 925 (Ind.1984); State v. Brotherton, 384 N.W.2d 375, 378-79 (Iowa 1986) (court held that testimony that a young child could not fantasize about a sexual act was improper indirect testimony regarding the child’s credibility); State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232, 238 (1986); People v. Reinhardt, 167 Mich.App. 584, 596, 423 N.W.2d 275, 282 (1988); State v. Miller, 377 N.W.2d 506, 508 (Minn.Ct.App.1985); State v. Bailey, 89 N.C.App. 212, 219, 365 S.E.2d 651, 655 (1988); State v. Holloway, 82 N.C.App. 586, 587, 347 S.E.2d 72, 73 (1986); State v. Middleton, 294 Or. 427, 437 n. 11, 657 P.2d 1215, 1221 n. 11 (1983); Commonwealth v. McNeely, 368 Pa.Super. 517, 520, 534 A.2d 778, 779 (1987) (an expert’s “opinion on the accuracy of the victim’s recitation of facts is inadmissible”); State v. Ramsey, 782 P.2d 480, 485 (Utah 1989); State v. Rimmasch, 775 P.2d 388, 406-407 (Utah 1989); State v. Eldredge, 773 P.2d 29 (Utah 1989); State v. Madison, 53 Wash.App. 754, 770 P.2d 662 (1989); Zabel v. State, 765 P.2d 357 (Wyo.1988); Griego v. State, 761 P.2d 973 (Wyo.1988).

VII.

The judgment of the Circuit Court that Richard Dale Goodson stand convicted of the crime of rape and the sentence of imprisonment imposed thereon are reversed and this case is remanded to the Circuit Court for a new trial on all issues. See West v. State, 553 So.2d 8, 12 (Miss.1989); Hall v. State, 539 So.2d 1338, 1348 n. 24 (Miss.1989); Johnson v. State, 529 So.2d 577, 579 (Miss.1988).

REVERSED AND REMANDED.

PRATHER and BLASS, JJ., concur.

DAN M. LEE, P.J., and SULLIVAN, J., concur and file special concurring opinions. '

HAWKINS, P.J., dissents and files an opinion joined by ANDERSON, J.

ROY NOBLE LEE, C.J., dissents with separate opinion joined by HAWKINS, P.J., and ANDERSON, J.

PITTMAN, J., not participating.

. The name "Sonya T.” is fictitious — for obvious reasons.

. At trial the parties stipulated that Dr. Chides-ter was a licensed and practicing physician. This but begs the question at issue. The mere fact that one is a licensed and practicing physician hardly suggests expertise in child sexual abuse, cf. Hall v. Hilbun, 466 So.2d 856, 875 (Miss.1985); see abo Myers, et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L.Rev. 1, 11, 12, 24, 83 (1989). Much has been written in recent years regarding expert testimo ny in child sexual abuse litigation. By far the most comprehensive, current and thoughtful item among the legal literature is this interdisciplinary effort recently published in the Nebraska Law Review. The authors include:

(1.) John E.B. Myers, J.D., Professor of Law, University of the Pacific, McGeorge School of Law, Sacremento, California;

(2) Jan Bays, M.D., F.A.A.P., Medical Director of Child Abuse Programs at Emanuel Hospital and Health Center, Portland, Oregon;

(3) Judith Becker, Ph.D., Professor of Clinical Psychology, College of Physicians and Surgeons, Columbia University, and the Director of the Sexual Behavior Clinic, New York Psychiatric Institute, New York, New York;

(4) Lucy Berliner, M.S.W., Assistant Clinical Professor of Social Work, College of Social Work, University of Washington, and Research Director, Harborview Sexual Assault Center, Seattle, Washington;

(5) David L. Corwin, M.D., child psychologist in private practice, and psychiatric consultant to the Multidisciplinary Child Abuse Team at Children’s Hospital, Oakland, California; and

(6) Karen J. Saywitz, Ph.D., Assistant Professor of Psychiatry, UCLA School of Medicine, and the Director of Child and Adolescent Psychology Services in the Division of Child and Adolescent Psychiatry, Harbor/UCLA Medical Center, Los Angeles, California.

Their article is cited below as "Myers, et al., supra, 68 Neb.L.Rev. at_

. In their entirety, these rules read:

RULE 702. TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

. We are not saying that Dr. Chidester may not be shown an expert in the field of child sexual abuse, only that the present record does not show her qualified to give the opinion at issue. A checklist that may be of use to counsel in qualifying such experts has been provided by Myers, et al., supra, 68 Neb.L.Rev. at 10-12.

. Myers, et al., supra, 68 Neb.L.Rev. at 66-69; McCord, Expert Psychological Testimony About Child Complaints in Sexual Abuse Prosecutions, 77 Journal of Criminal Law and Criminology 1, 18-41 (1986); Cohen, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Georgetown L.J. 429, 440-44 (1985).

. We are not unaware of the professional literature regarding the problems of expert testimony based on novel scientific principles. See, e.g., Neufeld and Colman, When Science Takes the Witness Stand, 262 Scientific American 46 (1990); Myers, et al., supra, 68 Neb.L.Rev. at 19-32; McCord, Syndhromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or.L.Rev. 19 (1987). This literature is perceptively surveyed and discussed in State v. Rimmasch, 775 P.2d 388, 394-99 (Utah 1989). What should be emphasized about this view is that it renders dynamic the realm of expert opinion testimony. Should subsequent empirical research and scientific investigation yield a child sexual abuse profile or syndrome, our rules as now written would readily admit opinions from otherwise qualified experts. See State v. Ramsey, 782 P.2d 480, 485 (Utah 1989).

.See footnote 4, supra.

. Myers, et al., supra, 68 Neb.L.Rev. at 85; see also, Myers, Allegations of Child Sexual Abuse in Custody and Visitation Litigation: Recommendations For Improved Fact Finding and Child Protection, 28 J.Fam.L. 1, 17 (1990).

. See Myers, et al., supra, 68 Neb.L.Rev. at 75.

. Goodson gave notice twenty days before trial of his intent to offer evidence of the "sexual conduct of the complaining witness." See Rule 412(c), Miss.R.Ev.

. Garner’s testimony partakes the form of what many in former days may have regarded as an admission. Use of admissions as evidence is now governed by Rule 801(d)(2)(A), Miss.R.Ev., wherein the question becomes whether she is a "party opponent." In a practical sense a prosecuting witness certainly occupies party opponent status. A careful reading of the rule (which, of course, applies in both civil and criminal cases) leaves us convinced that the prosecuting arm of the state, and not the crime victim/prosecutrix, is the defendant's party opponent within Rule 801(d)(2). We do not consider whether such evidence may be admissible under Rule 803(24), Miss.R.Ev., the catchall exception to the hearsay rule, for the point was neither litigated below nor has it been briefed or argued here. See Leatherwood v. State, 548 So.2d 389, 400-02 (Miss.1989); Mitchell v. State, 539 So.2d 1366, 1370-71 (Miss.1989); Hall v. State, 539 So.2d 1338, 1342-43 (Miss.1989); Cummins v. State, 515 So.2d 869, 873-75 (Miss.1987).

.See Kirkland v. State, 371 So.2d 402, 404 (Miss.1979). Much mythology surrounds this subject. In the past horseback riding and gym classes were often blamed. Today tampon use is the common culprit. For a medical view, see Emans, Woods, Flagg & Freeman, Genital Findings in Sexually Abused, Symptomatic and Asymptomatic, Girls, 79 Pediatrics 778 (May 1987). [''A total of 305 girls between the ages of 1 and 14 years seen at The Children’s Hospital or in a pediatric office had a genital examination between November 1984 and January 1986. Of the 305 girls evaluated, 119 were seen because of a history of sexual abuse (group 1), 127 had genital examinations as part of their routine health examination (group 2), and 59 girls were seen for evaluation of genital complaints such a vaginitis, vulvitis, bleeding dysuria (group 3)"]. Id. “The occurrence of abrasions, hymenal tears, intra-vaginal synechiae, and con-dyloma accuminata have medical and legal significance, even if not statistical significance, because they were found exclusively among abused children in this study. The four girls with hymenal tears all gave a history of pain associated with vaginal penetration.” Id. at 784 The absence of a hymenal ring is considered a "suggestive finding” of sexual activity by the medical profession. Id. "In the study of Orr and Prietto, 55% of girls 1 to 15 years of age had “suggestive" findings, including vaginal discharge, erythema, lacerations, or "no hymen”. Id. It is likewise not considered conclusive, “the majority of sexually molested children younger than 10 years of age still have normal findings on genital examinations, which should not be used to exclude the possibility of sexual molestation.” Id. See also Myers, et al., supra, 68 Neb.L.Rev. at 39-42.

. Rule 412 in its entirety reads:

(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual offense is not admissible.

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is:

(1) Admitted in accordance with subdivisions

(c)(1) and (c)(2) hereof and is constitutionally required to be admitted; or

(2) Admitted in accordance with subdivision (c) hereof and is evidence of

(A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen, pregnancy, disease, or injury; or

(B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which a sexual offense is alleged; or

(C) False allegations of past sexual offenses made by the alleged victim at any time prior to the trial.

(c)(1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim’s past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim.

(2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subdivision (b), the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses including the alleged victim, and offer relevant evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.

(3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined, (d) For purposes of this rule, the term "past sexual behavior” means sexual behavior other than the sexual behavior with respect to which the sexuai offense is alleged.

. Subsequent to the trial of this case, this point was explicitly added to the Rule by the addition ■ of subparagraph (d), which reads, “For purposes of this rule, the term ‘past sexual behavior’ means sexual behavior other than the sexual behavior with respect to which the offense is alleged.” See Rule 412(d), effective March 1, 1989.

. This Court relied on Mikula in Williams v. State, 427 So.2d 100, 102-03 (Miss.1983) (adoption of tender years hearsay rule prior to enacting rules of evidence). The part Mikula noted above is not affécted by the Rules of Evidence's evisceration of the tender years exception. See Hosford v. State, supra, Mitchell v. State, 539 So.2d 1366, 1369-70 (Miss.1989) and Leatherwood v. State, 548 So.2d 389, 399 (Miss.1989).

. To evaluate the effect of the evidence that Sonya had no hymenal ring when Dr. Chidester examined her, we sought to review the prosecution’s final argument to the jury. The problem is that the record contains no transcript of such argument. It is the appellant’s burden to furnish the record. Williams v. State, 522 So.2d 201, 209 (Miss.1988).

In both his notice of appeal and designation of record, Goodson states "No part of the court record is to be omitted.” Fourteen portions of the trial proceedings are specifically designated and closing arguments are not among them. We are left with the disquiet that all at this trial functioned according to a practice we have repeatedly sought to inter: the court reporter simply does not take down argument of counsel. Whether it is designated as a part of the record on appeal turns on the wishes of counsel. Rule 10(b), Miss.Sup.Ct. Rules. The court reporter should preserve every word spoken so that it will be available if designated. Cf. Winters v. State, 473 So.2d 452, 457-58 (Miss.1985); Dorrough v. State, 437 So.2d 35, 37 (Miss.1983).