When a child dies and there are signs of physical abnormalities—bruises, tearing, etc.—the result may be testimony of “unquestionable” or “unmistaken” signs of sexual abuse. That in turn may lead to criminal prosecution, conviction, and even a sentence of death. Yet both the advance of science and the simple act of paying greater attention to detail can show that what was thought to be an attack was in fact the consequence of hospital care.

Detail view of organized medical files

This possibility—that medical intervention rather than a heinous attack was the cause of these symptoms—was demonstrated dramatically in a California case resolved in March 2018. (In re Figueroa, 4 Cal. 5th 576, 580, 229 Cal. Rptr. 3d 673, 677, 412 P.3d 356, 360 (2018).) The descriptions are stark and disturbing but essential to recognition of the risk of erroneous diagnosis and wrongful prosecution.

In November 1991, a 21-month-old child was brought to a hospital with a head injury. Over a short period of time, the child became comatose and was transferred to a second hospital. As more examinations and more interventions (including surgery) occurred, various signs consistent with sexual assault were discerned and noted—“a tear in Consuelo’s hymen, a bruise on her perineum, swelling around her anus, and a lack of rectal tone.”

The child died, and an autopsy concluded that the child had been anally raped and that five fractured ribs “were caused by tight squeezing during a sexual assault. . . .” The defendant, a farmworker and acquaintance of the child’s mother who had been caring for the child, was convicted of murder and sentenced to death.

What is particularly stark is the contrast between the opinion affirming the conviction and the subsequent habeas proceeding. In the former, the court was succinct almost to the point of curtness: “The prosecution presented evidence showing that defendant raped, sodomized, and fatally injured 21-month-old Consuelo Verdugo while babysitting her.” (People v. Benavides, 35 Cal. 4th 69, 79, 24 Cal. Rptr. 3d 507, 513, 105 P.3d 1099, 1104 (2005).)

Thirteen years later, the depiction was radically changed. “[F]alse evidence was introduced at petitioner’s trial.” (In re Figueroa, 412 P.3d at 365.)

How did this transpire? Perhaps the most simple explanation is that the conclusion of sexual assault arose after extensive medical intervention and upon review of the later treatment records, without looking backwards at what was seen at the original hospital examination. Said more clearly, the experts never checked how the child originally presented:

A comparison between witnesses’ trial testimony and their later declarations is striking. Dr. Harrison, from UCLA, originally testified that the injuries he saw may have been caused by [sexual assault]. He later declared that he had not been given Consuelo’s DRMC medical records or the autopsy report before testifying. “Had [he] seen [all of Consuelo’s] records and been asked to opine on the cause of death offered by the pathologist, [he] would have testified that it was anatomically impossible.” Similarly, Dr. Leonardo Alonso, a medical resident who treated Consuelo at KMC, unequivocally testified that he believed Consuelo had been sexually assaulted. He subsequently declared that he had not reviewed Consuelo’s initial medical records either before treating her or before testifying. After reviewing the records he no longer believed that Consuelo suffered a sexual assault on the day of her admission.

(Id. at 362.)

What cannot be discerned from the opinion is how this error occurred—was it the failure of trial counsel to secure the initial records, the failure of the experts to review them, or just the blinding impact of the child’s final condition, a condition caused at least as much by medical intervention—in particular catheterization—as by any injuries sustained before hospitalization.

What seemed so obvious—an attack of gross sexual assault—was now repudiated. A declaration from a witness described as a preeminent expert in child sexual assault concluded that the sexual assault leading to death scenario “is so unlikely . . . [that it reaches] the point of being absurd.” (Id. at 363.)

The lessons to be drawn? There are several. Medical interventions may themselves leave trauma consistent with criminal agency; all records, not just the final ones, must be examined exhaustively before reaching conclusions; alternative hypotheses must be tested before an assumption of guilt arises; and counsel—both defense and prosecution—must have access to and consult with experts who can dispassionately and scientifically assess the evidence.

NOTE – This article was first published in Criminal Justice, Volume 33, Number 3, Fall 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.