Published July 11, 2013
A midlevel New York court has upheld allowing a therapeutic comfort dog to help a girl testify about sexual abuse, rejecting claims that it prejudiced jurors to believe her.
Victor Tohom was convicted in 2011 of predatory sexual assault against a child. He appealed, claiming that the golden retriever named Rose made the 15-year-old unduly sympathetic to the jury.
The Appellate Division rejected his appeal in a unanimous ruling. The four justices concluded that Tohom failed to show that the dog's presence was impermissible under state law or impaired his right to a fair trial.
The judge had cautioned jurors not to draw any inferences about the companion animal or let sympathy affect their considerations.
"It is beyond dispute that a dog does not have the ability to discern truth from falsehood and, thus, cannot communicate such a distinction to a jury," Justice Sandra Sgroi wrote. The trial judge allowed the dog to sit next to the girl, who had been diagnosed by a psychiatrist with post-traumatic stress disorder. The dog had been used in her therapy sessions to calm her anxiety and help her talk.
"We are not unmindful that Rose may have engendered some sympathy ... in the minds of the jurors," she wrote. "However, there is no proof that such sympathy was significantly greater than the normal human response to a child's testimony about his or her sexual abuse at the hands of an adult."
The court acknowledged there was no statutory or case law in New York allowing the dog to accompany the girl, though there was precedent for children testifying with a comfort item like a teddy bear. However, Sgroi noted that state appeals courts in Washington and California reached similar conclusions last year.
She also cited the legislative intent and broadly worded provisions of New York's 1986 statute establishing treatment standards for children who are victims of crime.
The 39-year-old Tohom is in prison serving 25 years to life.
The decision was handed down Wednesday by the court in Brooklyn.
Defense attorney Thomas Angell said Thursday he hadn't seen the decision and didn't know yet if it will be appealed to New York's highest court.
Dutchess County District Attorney William Grady called it a step forward for the rights of abused children.
"A child victim's recounting the horrible details of a sexual assault committed by a trusted adult is certainly traumatic by itself. ... This dog, Rosie, was specially trained. Therefore it would allow child victims of violent assaults to confront their abusers in court and seek justice."