{"id":6289,"date":"2012-08-25T12:34:49","date_gmt":"2011-11-19T01:18:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-11-19T01:18:51","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=6289","title":{"rendered":"NY2: Statute for child sex abuse victim to submit to photographing of doubtful utility violated her rights against unreasonable search and seizure"},"content":{"rendered":"<p>Ordering a child who gave birth to submit to intimate photographing years after the sexual abuse served no reasonable government interest and violated the Fourth Amendment and state constitutional rights of the child in her bodily integrity. <a href=\"http:\/\/www.courts.state.ny.us\/reporter\/3dseries\/2011\/2011_08355.htm\">In the Matter of Shernise C.<\/a>, 2011 NY Slip Op 08355, 91 A.D.3d 26, 934 N.Y.S.2d 171 (2d Dept. 2011):<\/p>\n<blockquote><p>\u201cThere is no more worthy object of the public\u2019s concern\u201d than the welfare of children (Wyman v James, 400 US 309, 318). However, in our societal zeal to protect them, our most vulnerable and most valuable asset, we must be careful not to trample upon their constitutional rights. An innocent child should certainly have as much right to be free from an unreasonable search and seizure as someone suspected of committing a crime. Thus, while harmonizing the state\u2019s extraordinary interest in protecting a child\u2019s welfare from the potential for the invasion of a child\u2019s constitutional rights may be at times difficult, a proper balance must be struck since even the most heinous crime of child sexual abuse does not automatically provide cause to ignore the rights of the victim. <\/p>\n<p>. . .<\/p>\n<p>Where a bodily intrusion is concerned, the court must give careful consideration to \u201cnot only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence\u201d (Matter of Abe A., 56 NY2d 288, 298; see Winston v Lee, 470 US 753). When making our Fourth Amendment inquiry, we must consider whether there is a \u201c clear indication\u2019 that the intrusion will supply substantial probative evidence\u201d (Matter of Abe A., 56 NY2d at 297, quoting Schmerber v California, 384 US 757, 770; see Cupp v Murphy, 412 US 291, 295).<\/p>\n<p>In the instant matter, given the conclusive evidence of abuse provided by the DNA test results, the State\u2019s need to subject Shernise to a highly intrusive physical examination is so diminished as to render the search unreasonable under the Fourth Amendment. Thus, the mandated application of Family Court Act \u00a7 1027(g) to Shernise under the particular facts of this case is unreasonable and violates her Fourth Amendment rights. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>b2evALnk.b2WPAutP <a class=\"more-link\" href=\"https:\/\/fourthamendment.com\/?p=6289\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-6289","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6289","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6289"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6289\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6289"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6289"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6289"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}