Eighth Circuit Punts on Question of Whether a Social Worker Can Testify That a Defendant is Not Attracted to Minors

Federal Rule of Evidence 704(b) states that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

So, under Rule 704(b), can a defendant charged with attempted enticement of a minor and travel with intent to engage in illicit sexual conduct call a social worker to testify that the defendant is not attracted to minors? That was the question of first impression addressed by the Eighth Circuit in its opinion today in United States v. Willins, 2021 WL 1201384 (8th Cir. 2021).

In Willins, Michael Willins was charged with the aforementioned crime and sought to have licensed social worker Art Chupik testify on his behalf.

According to the summary by Willins’s attorney, Chupik planned to testify that Willins “is not sexually attracted to 12 year old females” and “would have no interest in a 12 year old girl.” In his proffer, Chupik testified that Willins’s primary sexual interest is in adult females. He also testified that the purpose of his evaluation was not to determine Willins’s guilt or innocence.

The district court deemed this testimony inadmissible, and Willins was convicted. In addressing his appeal, the Eighth Circuit noted that

Some courts exclude this type of testimony under Rule 704(b). See United States v. Gillis, 938 F.3d 1181, 1195 (11th Cir. 2019) (per curiam) (testimony that the defendant “was not sexually attracted to prepubescent girls was simply a thinly veiled attempt by the defense to offer an expert opinion that [the defendant] lacked the requisite intent for the enticement offense”). Cf. United States v. Stahlman, 934 F.3d 1199, 1220-21 (11th Cir. 2019) (excluding expert testimony explicitly stating defendant “intended” to act out a fantasy); United States v. Hofus, 598 F.3d 1171, 1179-80 (9th Cir. 2010) (excluding expert testimony that defendant valued sexual text messages with minors as fantasy alone).

Other courts admit this type of testimony under Rule 704(b). See United States v. Hite, 769 F.3d 1154, 1169-70 (D.C. Cir. 2014) (admitting expert testimony that defendant had not been diagnosed with a condition making him attracted to minors); Hofus, 598 F.3d at 1177 (same); United States v. Gladish, 536 F.3d 646, 650-51 (7th Cir. 2008) (admitting expert report and testimony that defendant was unlikely to have sex with a minor for attempted enticement charge).

Ultimately, the Eighth Circuit ruled that “[t]his court need not decide whether Chupik’s testimony violates Rule 704(b). The evidence supporting Willins’s convictions is overwhelming.”

-CM