Examination Process: Exam and Evidence Collection Procedures
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Recommendations at a glance to facilitate the exam and evidence collection:
- Recognize the evidentiary purpose of the exam.
- Strive to collect as much evidence from patients as possible, guided by the scope of informed consent, the medical forensic history, exam findings, and instructions in the evidence collection kit.
- Be aware of and document evidence and injuries that may be pertinent to the issue of whether the patient consented to the sexual contact with the suspect.
- Understand how biological evidence is tested.
- Prevent exposure to infectious materials and risk of contamination of evidence.
- Understand the implications of the presence or absence of seminal evidence.
- Modify the exam and evidence collection to address the specific needs and concerns of patients.
- Explain exam and evidence collection procedures to patients.
- Conduct the general physical and anogenital exam and document findings on body diagram forms.
- Collect evidence to submit to the crime lab for analysis, according to jurisdictional policy.
- Collect other evidence.
- Keep medical specimens separate from evidentiary specimens collected during the exam.
Recognize the evidentiary purpose of the exam.
During the exam, examiners methodically document physical findings and facilitate the collection of evidence from patients’ bodies and clothing. The findings in the exam and collected evidence often provide information to help reconstruct the details
about the events in question in an objective and scientific manner.1 Of course, health care needs and concerns of patients may be presented in the course of the exam that should be addressed prior to discharge.
However, patients must understand that the exam does not provide routine medical care. For example, a pap smear will not be done during the female pelvic exam.2 (This chapter focuses on evidentiary components of
the exam. Other chapters in the protocol discuss more fully medical and other related needs and concerns of patients.)
Collect as much evidence from patients as possible, guided by the scope of informed consent, the medical forensic history, exam findings, and instructions in the evidence collection kit.
Evidence collected during the exam mainly includes biological and trace evidence. To reconstruct the events in question, evidence collected is used in four potential ways in sexual assault cases:
- To identify the suspect;
- To document recent sexual contact;
- To document force, threat, or fear; and
- To corroborate the facts of the assault.
Be aware of and document evidence and injuries that may be pertinent to the issue of whether the patient consented to the sexual contact with the suspect.
In the majority of sexual assaults, patients know the suspects. For example, according to the National Crime Victimization Survey, in 2008, 57 percent of rapes/sexual assaults involved offenders who were nonstrangers.3 Most nonstranger suspects and many stranger suspects (if confronted by professionals in the criminal justice system) will claim that the patient consented to the sexual contact.4 Consent claims typically stem from a lack of evidence and documentation concerning force and coercion. Thus, evidence and documentation of physical findings related to whether force or coercion was used against patients (e.g., findings that reveal injuries, alcohol or drugs taken involuntarily, or signs of a struggle) are important in these types of cases. However, the absence of physical trauma does not mean that coercion/force was not used or prove that patients consented to sexual contact.5 Also, some physical findings that suggest force are not necessarily indicative of a sexual assault. It is important to remember that if an investigation takes place, law enforcement officials will look for additional evidence that may help to overcome a claim of consent.
Understand how biological evidence is tested.6
Semen, blood, vaginal secretions, saliva, vaginal epithelial cells, and other biological evidence may be identified and profiled by a crime lab. The information derived from the analysis can often help determine whether sexual contact occurred, provide information regarding the circumstances of the incident, and be compared to reference samples collected from patients and suspects for identification purposes. A primary method used by crime labs for testing biological evidence is DNA (deoxyribonucleic acid) analysis.7 The most common form of DNA analysis used in crime labs for identification is called polymerase chain reaction (PCR). PCR allows the analysis of evidence samples of limited quality and quantity by making millions of copies of very small amounts of DNA. Using an advanced form of PCR testing called “short tandem repeats” (STR); the laboratory is able to generate a DNA profile, which can be compared to DNA from a suspect or a crime scene.8
Distinguish patients’ DNA from suspects’ DNA. Blood or buccal (inner cheek) swabbings should be collected from patients for DNA analysis to distinguish their DNA from that of suspects. (Procedures for collecting these samples are provided later in this chapter.) If the case is reported to law enforcement, patients’ biological samples and DNA profiles should be used only for investigation of the sexual assault, and their DNA profiles should not be uploaded into CODIS.9 Neither
biological samples nor DNA profiles should be provided to law enforcement or prosecution for another case in which patients may be suspects, inadvertently given to health insurance carriers, or used for research purposes without patients’ consent.
10 Criminal justice agency policies should be in place and followed for the secure storage of biological samples and appropriate disposal of these samples and DNA profiles.
Prevent exposure to infectious materials and risk of contamination of evidence.
Examiners should take precautions during the exam to prevent exposure (to both patients and health care staff) to bloodborne pathogens and other potentially infectious materials. For example, it is important to follow facility policies on washing hands, handling contaminated needles and other contaminated sharps, wearing protective equipment, and minimizing splashing, spraying, and spattering of these materials. (For more information on this topic, see
B.1. Sexual Assault Forensic Examiners.)
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|Exam and Evidence Collection Procedures (cont)
1 Note that while exam findings and evidence collected from patients are important in reconstructing the events in question, during a criminal investigation, law enforcement officials look for additional evidence that will create a more complete picture of the event.
2 Drawn from L. Drawn partially from L. Ledray, SANE Development and Operation Guide, 2000, p. 79.
http://www.ojp.usdoj.gov/ovc/publications/infores/sane/saneguide.pdf, SANE Development and Operation Guide , 1998, p. 63.
3 U.S. Department of Justice, Bureau of Justice Statistics, Female Victims of Violence, http://www.bjs.gov/content/pub/pdf/fvv.pdf
4 J. Archambault and D.K. Faugno, Overcoming a Consent Defense to Sexual Assault, Journal of Emergency Nursing,
5 L. Ledray, SANE Development and Operation Guide, 2000, p. 63. http://www.ojp.usdoj.gov/ovc/publications/infores/sane/saneguide.pdf.
6 Section drawn from Understanding DNA Evidence: A Guide for Victim Service Providers by the National Commission on the Future of DNA Evidence;
the West Virginia Protocol for Responding to Victims of Sexual Assault, 2002, pp.
7 DNA determines each person’s individual characteristics. An individual’s DNA is unique except in identical twins. DNA in the cell nucleus is genetic material inherited from biological parents. (Drawn from Arkansas’ Sexual Assault: A Hospital/Community Protocol for Forensic and Medical Examination, 2001.)
8 There is a concern that if DNA evidence is found, prosecutors may not utilize other evidence, especially when labs have limited resources. But because persons known to victims commit the vast majority of sexual assaults, DNA findings must be used in conjunction with other forensic evidence recovered, particularly when issues of consent arise. Law enforcement investigators and prosecutors should receive training on maximizing the use of all forensic evidence collected.
9 In the fall of 2003, legislation was introduced to implement the President’s DNA Initiative provisions that would bar the inclusion of elimination samples in CODIS. These samples include those obtained from sexual assault victims, as well as individuals with whom they had recent consensual sex prior to the exam.
10 An exception is that a forensic lab may input frequency information related to the DNA profiles in its statistical database. Victims’ identity remains anonymous.
11 Drawn from Connecticut’s Video Training Program, Part 1, The Examination: Sexual Assault Evidence Collection, 1998.