Rape case decision to have impact statewide

WILKES-BARRE – In a decision that will have statewide impact, the state Superior Court on Tuesday overturned a Luzerne County judge’s ruling that ordered an alleged rape victim to undergo an involuntary psychiatric evaluation.

The court, with one dissent, determined Judge Peter Paul Olszewski Jr. misapplied the law when he determined the defendant, Daryl Boich, had presented compelling evidence that the evaluation was needed to ensure the woman was competent to testify.

The ruling reverses an earlier decision by a three-member panel of the Superior Court. It clears the way for the four-year-old case to proceed to trial, pending a possible appeal to the state Supreme Court.

The case has been closely watched by officials with the Pennsylvania Coalition Against Rape, who feared it would open the door to meritless challenges to victims’ credibility.

Diane Moyer, executive director of the coalition, could not be reached for comment late Tuesday afternoon. But in a previous interview, she said she feared the Boich case would further dissuade victims from reporting attacks if Olszewski’s ruling were upheld.

Boich’s attorney, Al Flora, said the ruling has significant implications statewide because it’s the first time an appellate court has addressed the issue of whether a lower court can order a competency hearing for an adult who is the alleged victim of a sexual assault. Previous court rulings have addressed only child victims. Flora said he needs to discuss the case with Boich before deciding whether to appeal.

Boich, 42, of Mountain Top, was charged with rape and related offenses in connection with the alleged attack of the woman outside the former Murray’s Inn in Wilkes-Barre on Oct. 14, 2005. The woman alleged Boich forced her to have intercourse and to perform oral sex on him after she accepted his offer to give her a ride home.

Flora sought to force the woman to undergo a psychiatric examination after she testified at Boich’s preliminary hearing that she could not recall various details regarding the evening.

The woman also acknowledged she was taking prescription medications and that she was intoxicated. Flora argued that the only way to determine the cause for the “blanks” in the woman’s memory was through a psychiatric examination.

Prosecutors opposed the request, arguing the exam was nothing more than a veiled attempt to attack the woman’s credibility.

Olszewski held a hearing on Oct. 5, 2006, and ruled in Boich’s favor. Olszewski said he believed the exam was necessary to determine the physical/psychiatric effects the ingestion of drugs and alcohol had on the woman.

A three-member panel of the state Superior Court initially upheld Olszewski’s decision. Prosecutors then convinced the court-en-banc consisting of nine judges to hear the case. En banc rulings take precedence over a panel decision.

In its ruling, the en-banc court said privacy concerns of victims are paramount and involuntary psychiatric examinations should be ordered only in the most extreme cases.

The court agreed with prosecutors that Boich had failed to provide a compelling reason for the exam, saying the issues Boich raised “did nothing more than attack” the woman’s credibility.

“Therefore we conclude the motions alone did not make out a compelling need for the court-ordered involuntary psychiatric and/or psychological evaluation,” the court wrote.

The court also took issue with Olszewski’s opinion that the exam was needed to determine the impact drugs and alcohol had on the woman, saying that determination would be better left to a forensic toxicologist.

In a dissenting opinion, Judge Richard B. Klein said he believes Olszewski had given a well-reasoned opinion.

Klein said the woman’s inability to remember certain details, in and of itself, would not warrant an involuntary examination. But he believes the memory loss, combined with her ingestion of alcohol and drugs, was pertinent to her competency.

“I believe that we also lack the expertise to make medical judgments and should not fault the trial judge for asking for further help in making this medical decision,” Klein said.

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Pa. Superior Court overturns Luzerne County ruling that alleged rape victim undergo involuntary psychiatric evaluation.

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