Peter Moreno, JD, MS
University of Washington School of Law
Innocence Project Northwest

At least ten registered exonerations in child sexual abuse cases involved false or misleading medical testimony
• Amine Baba-Ali, Joel Covender,
Louis Eze, Luis Galicia, Teobaldo
Guce, George Lindstadt, Dominic
Okongwu, Kevin Peterson, Rubin
Swift, and Joy Wosu.
• Many cases have involved multiple factors, including false accusations and police misconduct.

• Many child sexual assaults are alleged long after the alleged abuse.
• Often, the child’s memory and reporting of the abuse and abuser(s) are imperfect.
• Often, the child has spoken to multiple people before he or she is examined by a nurse or physician.
• Often, the child is at the center of an ongoing dispute between the adults involved.
• Often, prosecutors look for corroborating evidence when determining whether to prosecute.

• Acute situations (<72 hours): a rape kit is usually collected. Exams look for signs of acute trauma such as internal and external cuts or bruising.
• Delayed reporting or chronic abuse: if vaginal abuse, the exam typically focuses on supposed indicators on the hymen: scars, clefts, notches, transections, thinning, etc.
• Hymen is a band of tissue that rings the vaginal opening; can be a full ring or crescent-shaped, usually has one or more holes; scalloped or smooth or folded; gets thicker and more elastic during puberty.

• Narrower hymenal rim or larger hymenal opening = abuse
• Scars and clefts and notches = abuse
• Only insertion trauma can produce certain medical findings.
• Post-pubertal girls usually do not suffer damage to the hymen, so marks observed after puberty are likely from pre-pubertal injury.

• Width of hymenal rim is irrelevant (Adams and Knudson
1996)
• Diameter of hymenal opening is irrelevant (Adams 2001)
• Shallow notches in hymen (<50% of width) are irrelevant
(Berenson et al. 2000)
• Many deep notches (>50% of width) and some transections (100%) are irrelevant – age matters (Adams et al. 2007)
• Combination of hymenal or anal findings is irrelevant
(Adams 1997)
• Hymens do not appear to scar (McCann et al. 2007)

• Hymens are very difficult to examine, normal hymenal appearance varies widely, and most trauma heals rapidly
• Once a girl becomes sexually active, no finding can be linked to past trauma
• Certain findings mimic indicators of sexual abuse
• Folding of anal/hymenal tissue due to infection
• Redness or adhesion or swelling from infection or irritation
•
•
Skin tags, fissures, etc.
STIs – more later

• “[T]here are fewer physical diagnostic findings of child sexual abuse than initially appreciated and
[the] most available finding is what the child has to say about his or her experience.” (Finkel and
Alexander 2011)
• “Note that ‘sexual abuse by history’ is the most common medical diagnosis arising from such evaluations.” (Alexander 2011)

• “It is a time-honored fundamental of medical practice that history is almost always the most important component of a complete medical exam.” (Alexander 2011)
• Three main reasons for absence of observable injury: physical contact was not violent (e.g., fondling), tissues stretched without injury, or injuries had healed (Adams 2007) (misreporting of history not mentioned)
• “Once a disclosure occurs, the primary task of the perpetrator is to undermine the credibility of the child. Clearly the perpetrator was never interested in the welfare of the child…” (Finkel and Alexander 2011)

• Bias in physical exam
• “History is crucial in determining overall significance” of certain findings (Adams Classification System 2001)
• Bite marks or suction marks on the genitalia or inner thighs
• Bias in reporting and testimony
• “Statements such as ‘Normal or nonspecific findings are to be expected in a child who describes this type of molestation’… should be included in reports to law enforcement…” (Adams 2001)

Post-conviction challenges are uncommon, but there are examples
• Gersten v. Senkowski, 2d Cir. 2005
• State’s doc testified findings were “highly suggestive of penetrating trauma to the hymen.” IAC for failure to challenge testimony.
• In re Hill, Cal. App. 2011
• State’s doc testified hymen was normal, and abnormal findings weren’t expected because of time between assault and exam.
Post-conviction doctor stated this was misleading, especially given victim’s sexual experience. IAC.
• In re Farris, Wash. App. 2014 (unpub)
• State’s doc testified that notch indicated penetration trauma, took no colposcope photos. Post-conviction doctor stated findings, assuming they were accurate, were consistent with normal variations. IAC. Cited Gersten.

Or…The ways in which medical evaluations can be wrong
Sonja Gerrard, PhD
University of Washington School of Law
Innocence Project Northwest

How do sexual abuse diagnosis errors occur?
• Standards for classification of sexual abuse exam findings were promulgated before adequate research support existed for the classification system.
• Interpretation of marks/scars/notches has changed.
• Interpretation of STIs has changed.
• Lack of knowledge and skill on the part of the doctor performing the exam.

Evolving medical research and standards
• Presence of Condyloma accuminata (genital warts)
• Downgraded in 2001 classification system from probable to possible sign of abuse
• There are ways, other than sexual contact, to become infected with
HPV. See R. Weinberg et. al. (1994) Outcome of CPS referral for sexual abuse in children with condyloma accuminata . Adolescent and Pediatric Gynecology, 7:19-24.

Evolving medical research and standards
• HSV-1 and HSV-2 can be transmitted by methods other than sexual contact
• F. Xu et. al., (2007) Seroprevalence of herpes simplex virus type 1 in children in the United States . Journal of Pediatrics, 151:374-377
• Tunback et. al., (2007) Early acquisition of herpes simplex virus type 1 antibodies in children: a longitudinal serological study .
Journal of Clinical Virology 40: 26-30.

Evolving medical research and standards
• Gonorrhea can be transmitted by methods other than sexual contact
• See F. Goodyear-Smith (2007) What is the evidence for nonsexual transmission of gonorrhea in children after the neonatal period? A systematic review . Journal of Forensic and Legal Medicine, 14:489-
502.

• Medical diagnosis is about pattern recognition
• This constellation of symptoms is indicative of disease X.
• This visual pattern is indicative of disease Y.
• Lessons learned in the laboratory
•
•
Lessons learned from retrospective studies of cancer detection using mammography
What about diagnoses that can’t be followed retrospectively?

In the laboratory: tales of a microscopist
• How does one learn to recognize patterns?
• Training sets
• Repetition
• Accuracy testing
• Pattern recognition using unknowns (blinded samples)
• Peer review

• Excellent system for studying factors that control pattern recognition accuracy because the outcome can be followed retrospectively
• Cancer?
• No cancer?

• Factors that influence the performance of radiologists that read mammograms
• Fellowship training in breast imaging correlates significantly with improved overall accuracy rates (lower false positive and negative rates)
• What do fellows do? Interpret and perform diagnostic tests under the supervision of specialists for ~ 1 year.

Estimating Accuracy of Sexual Abuse
Diagnoses
• Starling, et. al. (2009) Child abuse training and knowledge: A national survey of emergency medicine, family medicine and pediatric residents and program directors. Pediatrics 123: e595-e602.
• Adams, et. al. (2012) Diagnostic accuracy in child sexual abuse medical evaluation: Role of experience, training and expert case review. Child Abuse and Neglect 36:
383-392.

Estimating Accuracy of Sexual Abuse
Diagnoses
• Training, experience and peer review matter
• Enormous variability in assessment of diagnostic skill and medical knowledge (participants scored between 0 and
100%)
• Tendency to overdiagnose sexual abuse − even in case studies presenting normal anatomy

Doctor error is highly correlated with training
• Lack of training
• Lack of familiarity with guidelines for medical evaluation
• Lack of familiarity with proper examination techniques
• Lack of familiarity with normal prepubescent genital anatomy
• Lack of familiarity with abnormal findings that do not indicate abuse

Doctor error is highly correlated with training
• Did the doctor do a fellowship in child abuse pediatrics?
• Does the doctor stay on top of the relevant literature?
• Does the doctor receive peer review?
• Does the doctor perform sexual abuse examinations regularly?

TWO CASE STUDIES
OF POST CONVICTION RELIEF
BASED
ON JUNK MEDICAL SCIENCE
MICHAEL LOGAN WARE
300 Burnett, Suite 160
Fort Worth, Texas 76102
(817) 338-4100
(817) 698-0000 fax ware@mikewarelaw.com
www.mikewarelaw.com

Travis County (Austin), Texas
Early 1990’s
Purported Satantic Ritual Sexual Abuse at a
Daycare

Texas Monthly Article: “The Innocent and the Damned,” by Gary Cartwright (April
1994)
Austin Chronicle Article: “Believing the
Children,” by Jordan Smith (March 27,
2009)
Evan Harrington, “Conspiracy Theories and Paranoia: Notes from a Mind-Control
Conference (Skeptical Inquirer, Sept./Oct.
1996)

• 3 ½ year old, extremely troubled child with history of bizarre behavior whose parents had just gone through an acrimonious divorce which included allegations of physical abuse against the father.
• Upon leaving daycare one afternoon, child purportedly said to her mother that she didn’t like Danny (Keller) because he pulled down her pants and spanked her [an allegation also made against the father in the divorce], and “poo’d and pee’d on [her] head.”

She was almost immediately taken to her counselor where she purportedly made further similar “outcry” statements about Dan.
She was taken to the ER that evening where an inexperienced ER doctor examined the child without utilizing a coloposcope.

The ER doctor noted “lacerations of the hymen at 3:00 and 9:00” that were no more than 24 hours old. He testified that these hymenal lacerations in a 3 ½ year old child were indicative of sexual abuse.
Hysteria ensued

Christy was examined by Dr. Mouw, and you will hear testimony from Dr.
Mouw about what he found, the lacerations and the tears on Christy’s vagina and hymen

And could this be self-inflicted? . . .
Dr. Nauert said that this type of injury to the child, where there are these two little lacerations that Dr. Mouw drew . . . I asked her, Dr. Nauert, would this cause pain. Yes, this is the kind of thing that would cause pain . . .

7. Years after the trial, I attended a medical seminar which included a slide presentation of hymens with normal variants. One slide of a normal hymen was so similar to what I had observed when I examined Christy, I realized I had mistakenly identified normal discontinuity at those locations as lacerations.

This was new information to me. While my testimony was based on my good-faith belief at that time, I now realize my conclusion is not scientifically or medically valid, and that I was mistaken.
8. I now believe the child’s hymen was a normal variant. I did not use a colposcope. If
I had used a colposcope and taken photos that could have been reviewed later by other experts, I believe other experts would have shared this conclusion.

10. In 2009, I saw an article in the Austin
Chronicle about this case. I contacted the author of the article, who put me in touch with the attorney for the Innocence Project. I was contacted this year by Keith Hampton.
This is the first time I have been asked to give an affidavit about this case.

Q. How many sexual assault examinations have you done on children at the time you examined Christy Chaviers?
A.
I can’t recall a specific number, but
I would say it was a handful at most.
Q. Before we get into some other things, can you tell the Court what a colposcope is?
A. I’ve actually never used one . . .

Q. What kind of conditions were you working under at the time you made your examination and determination?
A. It was an encounter, a chart that I had picked up randomly. The charts are put up on a rack, and we picked them up in the middle of a busy ER shift at Brackenridge
Hospital, which was then housed the children’s emergency department.

Q. On the hymen, is there any doubt in your mind today that what you saw in 1991 were normal variations to Christie’s hymen?
A. No Doubt.

Cross Examine by Prosecutor
Q. Okay. Does the Texas Board of Medical
Examiners have some minimal criteria that must be satisfied before a doctor can perform a pediatric sexual abuse examination?
A. No, sir. None specific to that practice, no.
Q. So any licensed physician can perform that type of examination?
A. Yes.

I would go as far as to say I don’t think I had any business doing those exams at that point in my career given my level of experience and training.
Q. All right. And, then, with regard to the number of sexual abuse examinations involving children you were asked, “Okay.
What about children?” And your answer was, “30 or thereabouts probably.” Did I read that correctly?

A. Yes, you read that correctly. I was being asked to give an estimate without any recording or record of the actual number.
I was not referring to any written record of my number of exams.
As I pointed out a moment, ago, I may have embellished the number . I didn’t intentionally embellish the number or perjure myself, if you will, on the stand.

I - - as I said, I had an inclination to want to be seen as an expert even though - - or let me rephrase that. To be seen as having more expertise than I actually had, because of my age, pride, immaturity possibly.

Q. So all other things being equal, you probably had a better recollection way back
22 years ago than you do now. Is that right?
A. Yes, but I was also biased.
Q. I understand
A. I was strongly predisposed to both help get the bad guy which is what we were taught, and also because of pride, too. So my estimate may be different now, because of my perspective on my level of maturity and so forth, at that point, is different.

Q. Now, the labia minora, you indicated that
- - you testified at trial that there was some redness of the labia minora. Is that right?
A. Yes.
Q. You also indicated, that that was probably less than 24 hours old. Does that sound right?
A. I have no idea where I came up with that number.

Q. Okay. Now, Dr. Mouw, you feel terribly about your contribution to this outcome. Is that true?
A. Yes.
Q. Tell us why that is.
A. I foresaw – when I first saw the slide show, I had sort of, like I said, a light bulb went off. My main regret is that I didn’t act on it at the time.

Sometime later an article came out in Texas
Monthly, and I read details about the trial that I had no knowledge of at the time that I gave my testimony. I honestly did not follow the case. I didn’t think I was supposed to.
And when I read the Texas Monthly article, I became concerned that Fran Keller may have been wrongly convicted, but I didn’t do anything about it.
Q. Ultimately, you did do something. Is that correct?
A. Yes.

Q. And what you did is, you eventually contacted defense counsel, correct?
A.
I didn’t do that until I saw Jordan Smith’s article in the Chronicle in 2009.
Q. Okay. Well, I would like to ask you some questions about those things. But, basically, would it be fair to say that, at this point in time, you wish that you had played no part whatsoever in this trial?

A.
There’s no point in wishing that. But as I said earlier, I would advise anybody in my position at that time, today, to figure out someway not to have to do that exam.
.
.
.
.
Q. Now, during that meeting, you also indicated – well, let me put it this way: At trial, you testified that some of the injuries were about roughly 24 hours old. Is that correct? Does that ring a bell?
A. Yes. And as I said earlier, I have no idea how I could have come to that conclusion.

A. So in the textbook there’s an atlas of photographs, and most of the photographs are photographs of normal variance and confusing conditions that can be confused with; and there’s a section on findings that were known to be positives presumably because there was either photographic evidence or a witness or a confession, and those all looked much more obviously abnormal.

In other words, none of the positives that I saw that were known to be positives looked anything like what I saw on Christy?
Q. Okay. But still, you saw nothing that would rule out sexual assault, correct?
A. No – yes. Correct. I’m sorry. Correct.

REDIRECT
Q. All right. I may be wrong about this, but I thought you did contact someone in law enforcement after you saw that at this seminar?
A. I made a call to one of the investigating officers that I think was on APD, and I had to go back and look at the article to try to remember which one it was, and it was either – I think it was either Bryant or – there was another APD – I’m blocking out his name. Bryant or --

Q. There was a Detective Oliver that was –
A. Oliver. Yeah, I think it was one of those two guys.
I called him up offline, because I was troubled by that concern; and he reassured me that I didn’t need to worry about it because there was stuff he couldn’t tell me about, that he was convinced that they were guilty – there was stuff that didn’t come out at trial that he couldn’t tell me about. So that was one reason I didn’t pursue it at that time.

FRAN AND DAN KELLER

ELIZABETH RAMIREZ
ANNA VASQUEZ
KRISTIE MAYHUGH
CASSANDRA RIVERA

1994 San Antonio, Texas, 7 and 9 year old sisters purportedly “outcry” to grandmother and father that their gay aunt, Elizabeth Ramirez, and three of her gay friends, in essence, gang raped both of them a couple of months prior, during a visit. The sisters came from an extremely dysfunctional background and their father has a history, before and since, of making many sexual abuse accusations. The
“investigation” was assigned to a homicide detective.

1. All 4 submit to extensive interviews in which the detective hones in on their sexual orientation.
2. The police conduct polygraph tests on two of the four “suspects”. They both pass.
3. The alleged “victims” are given rape exams by a doctor who specializes in rape exams and testifying for the state.
The doctor claims that the older sister has a scar on her hymen a 3’oclock which is the result of a healed injury.

The investigating detective runs to the police polygrapher in order to give him this new “medical evidence”, before he polygraphs the third “suspect”. She mysteriously fails the polygraph .

REEVALUATION OF HYMENAL SCAR IN
LIGHT OF NEW DEVELOPMENTS IN THE
MEDICAL SCIENCE REGARDING THE
HEALING OF HYMENAL TRAUMA IN
PREPUBERTAL GIRLS
7. In 2013, approximately 15 years later, Dr.
Kellogg was asked to review her trial testimony from Applicant’s trial and the colposcope photographs or slides taken during Vanessa’s sexual assault examination.

2. The record reveals that, at trial, the State emphasized the importance of the physical findings. One such example is a passage from the State’s final argument at guilt/innocence:
. . . And what about Vanessa’s? There was a scar there. There’s medical evidence of penetration.

November 19, 2013
Findings granting Relief are not yet final.