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Oregon Supreme Court: ‘Grooming’ Evidence Requires Scientific Validity Foundation

by Mark Wilson

The Supreme Court of Oregon held that expert testimony about “grooming” children for subsequent sexual abuse is “scientific” evidence that may not be admitted without a foundational showing of scientific validity under Or. Evid. Code 702.

Robert Lewis Henley’s 11-year-old stepdaughter, identified as M, accused him of sexually abusing her while on a camping trip. During a forensic interview with Courtney Palfreyman, of Children at Risk Evaluation Services (“CARES”), M reported that Henley often gave her massages of intimate body parts that made her uncomfortable.

Henley was charged with two sex crimes for the camping-trip abuse allegations, and the case proceeded to trial. Henley moved to exclude the massage evidence. Prosecutors objected, however, arguing that the evidence was admissible to demonstrate Henley’s “grooming behavior” in planning and preparing for the later sexual assault. The trial court denied Henley’s motion.

M testified at trial consistent with her CARES interview. She told jurors about the disconcerting body massages. Palfreyman also testified. Prosecutors established that she had a bachelor’s degree and a master’s degree in social work, received basic and advanced forensic interview training, and had over 10 years of experience as a child welfare and protection worker and forensic interviewer. She had conducted more than 600 forensic interviews at the time of the 2009 trial.

The prosecution elicited testimony from Palfreyman about her “grooming behavior” training. Henley objected to Palfreyman’s qualification to testify as a grooming behavior expert. The State then attempted to qualify her as a witness. Palfreyman admitted that her grooming training was limited to her forensic interview training and through her college courses.

Henley objected, arguing that prosecutors failed to lay a proper foundation for her grooming testimony because “Palfreyman was not an expert and had no special training with regard to grooming.”

The trial court overruled the objection and allowed Palfreyman to define grooming behavior and to describe Henley’s supposed “grooming” behaviors, which included his massages that made M uncomfortable.

During closing argument, the State highlighted Palfreyman’s testimony about grooming behavior and argued that Henley’s massages of M constituted “classic grooming behavior.” The jury convicted Henley of one charge and a lesser-included offense on the other.

The Oregon Supreme Court reversed Henley’s convictions, concluding “that Palfreyman’s testimony about grooming, in the context of her testimony overall, was ‘scientific’ evidence because ... the evidence implied that it was grounded in science and the jury likely would have viewed the evidence that way.”

Accordingly, “the trial court erred in permitting Palfreyman to define the phenomenon of grooming—and her conclusion that defendant had engaged in behavior that could be considered grooming of M for sexual abuse—without first requiring the state to establish its scientific validity,” the Court concluded.

“We decline to address, for the first time on appeal, the scientific validity and reliability of the sexual grooming evidence admitted at trial,” the Court declared in rejecting the State’s argument “that sexual grooming possesses a sufficient minimum level of scientific validity to be admissible as scientific evidence.”

The Court finally held that the erroneous admission of the “grooming” evidence was prejudicial to Henley and required reversal. “The expert testimony and the prosecutor’s argument were likely influential in the jury’s deliberations and verdict,” the Court ruled. See: State v. Henley, 422 P.3d 217 (Or. 2018).  

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