NY court: testimony by alleged victim with 'comfort' dog in court not unfair to defense

ALBANY, N.Y. — A young sexual assault victim, testifying with a therapeutic "comfort" dog beside her, did not evoke so much more sympathy from jurors as to unfairly prejudice them against her alleged attacker, a New York court said in rejecting his appeal to overturn his conviction because the golden retriever was allowed in court.

Victor Tohom was convicted in 2011 of predatory sexual assault against a child. He appealed, claiming that the therapy dog named Rose, known as Rosie, gave the 15-year-old victim an unfair advantage.

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 that New York has no statutory or case law that allowed the dog to accompany the girl, though precedent exists for children testifying with a comfort item like a teddy bear. But 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 a 25-year to life sentence.

The decision was handed down Wednesday by the court in Brooklyn.

Defense attorney Steven Levine said Thursday he intends to appeal the ruling to New York's highest court. He cited the lack of a New York law on comfort dogs in court, and said the ruling leaves such a decision up to a trial judge's discretion that could differ from county to county. The appeals court also failed to address the defense argument that comfort dogs also make it easier for witnesses to give convincing false testimony, he said.

But 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."

Rosie died in November.