Monday, March 24, 2008
Minnesota Girl, Take 2: Former Minnesota Football Player Tries To Present Sexologist's Testimony In Sexual Assault Trial
Earlier I wrote about the sexual assault trial of former University of Minnesota football player Dominic Jones. As I noted, Jones is accused of engaging in sexual acts with a woman when she was too inebriated to consent, and the prosecution sought to prove these acts in part through a cell phone recording taken by another player. I further noted that the defense sought to have the recording excluded but that the judge overruled that objection and allowed the recording to be entered into evidence.
Well, according to an article on the case, the recording purportedly showed Jones ejaculating on the woman. Now, the defense wants to present the expert testimony of a "sexologist," who would testify that some people view ejaculating on another person as playful sex. According to court papers, the sexologist would testify that while some people view ejaculation as an act of hostility or aggression, others see it as "a symbol of closeness, sexual bonding or sexual competence." The court papers indicate that this sexologist is Marty Klein, who says he has a doctorate from the Institute for Advanced Study of Human Sexuality in San Francisco. The institute's Web site says it is "the only graduate school in the United States, and one of the few in the world, approved to train sexologists." It is not, however, an accredited educational institution. The prosecution has countered that this evidence is inadmissible and irrelevant because Jones sexually assaulted the woman knowing that she was physically helpless.
Now, without knowing the full factual context of the case, I can't say whether this sexologist's testimony is relevant, but the test for whether this sexologist can be qualified as an expert witness is the Frye test, which looks at whether the technique or theory upon which the witness' testimony is based is generally accepted in the relevant scientific community. This means that the judge would need to see whether Klein's ejaculation theory is generally accepted in the sexologist. So, who could be called to provide such testimony? Dr. Ruth? Dr. Drew?
It's tough to say how the court will rule because a Westlaw search reveals only a handful of cases where sexologists testified, and only one case, Artrip v. State, 2002 WL 242532 (Tex.App.-Amarillo 2002), has dealt with whether a sexologist can provide expert testimony. In Artrip, a fellow of the American Academy of Criminal Sexologists testified concerning the controversial STATIC-99 actuarial risk prediction instrument, and an appellate court found that the defendant's counsel did not provide the ineffective assistance of counsel by failing to object to his testimony because it was properly rendered expert testimony.