Forensic Exams for the Sexual Assault Suspect
By Joanne Archambault, SATI Training Director and Founder of EVAW International

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One source of evidence that is critically important but all too often overlooked in a sexual assault investigation is the suspect examination. In my experience, I have found that most law enforcement agencies have failed to establish appropriate policies and procedures for obtaining comprehensive forensic examinations for sexual assault suspects which is unfortunate, given the potential for recovering probative evidence from the body as well as the clothing of suspects. The purpose of this Promising Practices article is to make the case for the importance of suspect examinations, to explore some of the reasons why they often are not done, and to provide concrete recommendations for overcoming these barriers and using suspect examinations effectively in your community.
 
The importance of suspect exams.
 
When evaluating potential sources of evidence, we as law enforcement professionals often focus on anything that might have transferred from the suspect to the victim; thus, forensic examinations of the victim are seen as critically important. However, we need to keep in mind that any evidence that could potentially be transferred from the suspect to the victim may also be transferred from the victim to the suspect. Therefore, depending on the type of contact involved in a sexual assault offense, the suspect’s body may actually be a better source of probative evidence than the victim’s.

• For example, in the case of a digital penetration of the victim’s vagina, the suspect’s fingers will often be the best source of probative evidence. This can even be true if the suspect has bathed since the sexual assault, because most people do not routinely scrub underneath their fingernails with hot soapy water.
   

• As another example, if the suspect forced his penis into the victim’s mouth during the sexual assault, his penis may be a richer source of evidence than the victim’s mouth.

To highlight this point, consider a study conducted by Isacc T. Caain, entitled: “The Use of Physical Evidence in the Investigation and Prosecution of Sexual Assault Cases.” (This study was submitted as a Master’s Thesis in Forensic Sciences to National University in July of 2002). The research was conducted while I was supervising the Sex Crimes Unit at the San Diego Police Department, and it involved analyzing the findings from 77 sexual assault cases that received laboratory analysis from our Forensic Biology Unit between 1998 and 1999. Results of this study revealed the following:

• In cases involving an adolescent victim, 44% of the suspect’s rape kits that were examined by a criminalist identified the victim’s DNA. In fact, DNA analysis of epithelial cells found on penile swabs of the known suspect were the most common pieces of suspect evidence associated with victim identification.
   

• In the cases with an adult victim, as many as 30% of the suspect’s rape kits that were examined by a criminalist identified the victim’s DNA. Again, DNA analysis of epithelial cells found on penile swabs of the known suspect were the most common pieces of suspect evidence associated with victim identification.

Clearly, any evidence from the suspect’s body that establishes the identity of the victim will be important in the investigation and prosecution of sexual assault. It is therefore surprising that so few law enforcement agencies routinely collect forensic evidence from the body of the suspect.
 
The clothing of the suspect
 
Equally surprising is the frequent failure to seize the suspect’s clothing, which again could be a terrific source of probative evidence. In many cases, the clothing worn by the suspect during the sexual assault is still available and – depending on the specific case history and the time since the assault – it is often a better source of evidence than the forensic examination of the victim. All of these potential sources of evidence should therefore be considered when “thinking outside the box” during a sexual assault investigation. Turning again to the Caain study:

• When the suspect’s clothing and other crime scene evidence such as condoms, bottles and tissue, were examined, 80% of the items examined by a criminalist included the victim’s DNA profile and 20% included the suspect’s DNA profile.
   

• Of the 51 adult cases, 16.7% of the items examined by a criminalist included the suspect’s DNA profile and 50% included the victim’s DNA profile.

Clearly, important evidence can often be obtained from the body and clothing of a suspect in a sexual assault case. This is especially significant because so many people think of sexual assault cases as not having physical evidence – that they are simply a question of “he said, she said.” In many cases, however, physical evidence can be obtained if we look in the right place.
 
It’s not just about DNA identification
 
Yet the importance of the suspect examination is not solely based on the potential for documenting the victim’s DNA for identification purposes. Depending on where the victim’s DNA is found on the suspect’s body, it may provide a better idea of the specific acts that were involved in the sexual assault (e.g., penile-vaginal penetration, digital penetration, oral copulation). This type of evidence may be particularly helpful with very young victims, or with victims who are under the influence of drugs or alcohol, because they may not recall or may not be able to articulate exactly what happened to them. Evidence of the victim’s DNA on the suspect’s body can also be important in cases involving multiple perpetrators, where the victim knows that a suspect participated in the assault but is not sure if he penetrated her.
 
Even beyond DNA evidence, the suspect examination is important because it can provide documentation of the suspect’s clothing, appearance (e.g., shaven or unshaven), physical anomalies, tattoos, piercings, and other characteristics that may become important later on during the course of an investigation and prosecution (thanks to Assistant District Attorney Cathy Stephenson in San Diego, California for these ideas). It can also corroborate information that the victim provides about sensory experiences, such as the suspect’s smell (e.g., aftershave, cigarettes, body odor, bad breath). Evidence from the suspect examination can also provide other types of information that “fill in pieces” of what happened before, during, or after the sexual assault. For example, debris from leaves could be found on the suspect’s body that came from the bushes outside the victim’s home, or paint chips could remain from the suspect’s work earlier in the day. A thorough suspect examination certainly demonstrates diligence on the part of law enforcement investigators and establishes a critical focus on the suspect – both of which are important for juries considering the evidence in the case (thanks to Senior Deputy Prosecuting Attorney Patti Powers in Yakima, Washington for these ideas).

• On the one hand, victims who were examined by health care providers in my community typically received the most competent and compassionate medical care available.
   
• At the same time, I observed a serious lack of understanding among community professionals regarding how and when rape kits were processed by the crime lab. Many did not understand why there was and (in many jurisdictions still is) a back log of DNA evidence in our property rooms and crime laboratories.

This makes it clear to me that we still have a long way to go before we fully appreciate the role that forensic evidence can play in these cases. If community professionals do not yet understand the role that forensic evidence gathered from the victim’s examination can play in successful investigation and prosecution of sexual assault, it is unlikely that they will recognize the critical role that could be played by forensic evidence gathered from the suspect’s examination.
 
Further complicating matters, we are still waiting for the type of research that is needed to determine which types of evidence are typically found from which sources – and how long after the sexual assault it can be recovered. This research would need to be conducted by evaluating findings from the crime lab and comparing them with the unique characteristics of sexual assault cases. It would need to include the analysis of case variables such as:

• The type of assault (e.g., penile/vaginal rape, sodomy, oral copulation, penetration with a foreign object, including digital penetration, and attempted sexual assault)
   
• The time delay between the sexual assault and the forensic examination
   
• Hygiene activities of the victim and/or the suspect
   
• The source of the probative evidence (e.g., crime scene evidence such as foreign objects, condoms, clothing, oral swabs, internal vaginal swabs, external vaginal swabs, or swabs taken from the victim’s breast or neck based on her verbal history of the activities involved in the assault).

• First, the programs and facilities that were established to provide medical forensic examinations for victims were designed to be compassionate and victim-centered. As a result, their staff (e.g., SANEs, SAFEs) typically do not want to have suspects – often in handcuffs – within the same environment as sexual assault victims. Even if the suspect is not the suspect in the sexual assault victim’s own case, just having suspects in the same location may be very upsetting to a crime victim. Therefore, while I recommend that suspect exams be conducted by trained examiners, it may not be ideal to have these exams conducted at the same facility as the forensic examinations of victims. For example, one scenario is for the victim’s exam to be conducted in the SANE facility or hospital while the suspect’s examination is conducted at the police department.
   
• In addition to the emotional distress it may cause victims, any facility that conducts both suspect and victim forensic examinations will significantly increase the potential for cross contamination of the evidence. Therefore, if the victim and suspect are examined in the same facility, or possibly even by the same examiner, policies and procedures must address the steps that will be taken in order to prevent such cross contamination. In fact, any community that is expanding the role of forensic examiners to conduct exams with suspects as well as victims will need to ensure that they receive sufficient training to do so. Clearly, many of the issues are very different for suspect exams yet many forensic examiners have only received specialized training in how to conduct victim exams.
   
• Another reason why suspect exams are not routinely conducted in some communities is that they are expected to be performed by crime lab personnel or law enforcement officers. In some jurisdictions, this has actually become a labor issue because officers and crime lab personnel do not believe it is appropriate for them to do such an intimate examination of the suspect. I actually share this concern. To obtain the best forensic evidence possible, I believe that suspect exams must be conducted by examiners with specialized training and clinical experience. In most cases, this will be a health care provider, not a law enforcement officer or employee of the crime lab.
   
• Of course, some law enforcement agencies might be reluctant to use trained forensic examiners to conduct suspect examinations because it is more expensive than using their own personnel. This clearly reflects a concern with the prioritization of resources, and any law enforcement agency that is serious about investigating and prosecuting sexual assault must take a hard look at this question. While it is clearly less expensive to use law enforcement personnel to conduct suspect exams, the evidence that can be collected is extremely limited when compared to the documentation and evidence that can be collected by a trained forensic examiner with specialized expertise in this area.
   
• Another barrier is that many communities are currently experiencing a shortage of nurses. As a result, they are often unable to provide forensic examiner coverage around the clock even for victims – let alone suspects. Having forensic examiners conduct suspect examinations would stretch these limited nursing resources even further. Any effort to conduct suspect exams must therefore take into account alternative ways of addressing the reality of a nursing shortage that may exist in the community. For example, the City of San Diego Forensic Examiner program utilizes both LVN’s and paramedics. Both have the ability to check for vital signs, document injuries, collect hair samples, swabs, and draw blood. Clearly, protocols that are developed must be realistic and based on the resources that currently exist in your community.
   
• In many communities, there are still debates about who is going to pay for forensic examinations – even with sexual assault victims. I believe this stems from a failure to recognize the victim’s forensic exam as evidentiary (rather than solely medical). To the extent that the forensic examination of a sexual assault victim is an evidence collection procedure, I do not believe it should be treated differently than other law enforcement evidentiary procedures. In other words, whoever pays for other evidentiary procedures (such as processing a bank following a robbery or conducting a traffic accident investigation) should also pay for the forensic exam of a sexual assault victim. In a sexual assault case, the body is a crime scene -- whether it is the victim’s or the suspect’s. However, any community that fails to see the victim’s forensic exam as evidentiary will most likely also fail to recognize that the suspect’s examination is evidentiary as well. Clearly, payment procedures should be in place for law enforcement agencies to pay forensic examiner programs to conduct forensic exams with both victims and suspects. (For more information on payment issues and the implications of the 2005 re-authorization of the Violence Against Women Act known as VAWA 2005, please see the Promising Practices article from our e-newsletter dated June 26, 2006 (at http://www.mysati.com/enews/Jun2006/enews_062606.htm).

Lack of standardized guidelines, kits, and forms
 
Beyond such philosophical issues, some of the barriers to suspect exams are more concrete. For example, the National Protocol for Sexual Assault Medical Forensic Examinations that was published in September 2004 (by the Office on Violence Against Women, U.S. Department of Justice) does not even address the topic of suspect examinations. In addition, very few states provide any sort of standardized guidelines regarding forensic examinations for suspects.

1. The suspect is arrested shortly after the sexual assault;
    
2. The investigator believes that the suspect has not bathed since the sexual assault, or;
    
3. The history suggests that there might be evidence of injury on the suspect.

(As a side note, suspect examinations can also be extremely valuable for many other types of crime such as homicide, child abuse, robbery, domestic violence, etc. Therefore, much of the information in this article will be equally relevant for those types of crimes as well.)
 
In addition, the clothing worn by the suspect during the sexual assault is often still available at the time of the law enforcement investigation, regardless of how much time has passed. As I have already noted, the suspect’s clothing may be a better source of evidence than the forensic examination of the victim, depending on the specific case history and the time since the assault. As a result, community protocols can also highlight the need to collect this critical evidence without respect to any particular timelines. If the clothing that the suspect wore at the time of the sexual assault (and/or immediately afterward) is available, it should be collected as evidence. To provide guidance on the collection of clothing as evidence, please see the documentation form that is provided in the Appendix.
 
Legal requirements for a suspect forensic examination
 
The next question that people typically ask me is how to get the legal authorization to conduct a suspect examination. Essentially, there are three ways that a suspect examination may take place: (1) The suspect may consent to a forensic examination; (2) An examination may be conducted incident to an arrest, or; (3) A warrant or court order can be obtained. Even in situations where a full examination cannot be conducted, law enforcement personnel can still often obtain a mouth (buccal) swab of a suspect. I’ll address each of these in turn.
 
First, let’s talk about suspect consent. It is clear that law enforcement officers are allowed by law to use the consent of the suspect as a basis for obtaining a forensic examination. However, some law enforcement agencies have policies prohibiting this practice. Therefore, law enforcement professionals must check with their own Department, as well as the prosecuting attorney’s office, to learn about the protocol in their community.
 
Perhaps surprisingly, most suspects will in fact consent to a forensic examination when asked. Of course, investigators must be careful that the consent is not coerced as it may be challenged by the defense in court. If this option is chosen, I strongly recommend that the suspect’s consent to the forensic exam be obtained in writing. Other precautions can also be taken such as:

• Having an investigator offer the examination (rather than an officer in uniform with a visible weapon);
• Limiting the number of law enforcement officers present at the time of the request, and;
• Making sure that the suspect understands that he is not in custody, that he is free to leave at any time, and that he is free to stop the forensic examination or refuse any part of the forensic examination at any time.

All of these issues will be examined by a judge if the suspect’s consent is challenged.

• Keep in mind, however, that any time a warrant is issued for collection of forensic evidence from a suspect, the issuing judge typically sets applicable time limits. The investigator will then need to present the court order or search warrant to the forensic examiner.
   
• The search warrant will also state exactly which samples have been authorized by the judge for the examiner to collect. The items explicitly stated on the search warrant are the only samples that can be obtained during the suspect examination. For this reason, the investigator should carefully articulate as many samples as possible that can be supported by the probable cause alleged in the warrant. For an example of a search warrant and supporting affidavit, see the Appendix.

Before concluding this section on legal requirements, I want to note that even in those cases where a full examination cannot be conducted with a suspect, it is often still possible for law enforcement personnel to obtain a mouth (buccal) swab for DNA. In fact, I believe that all law enforcement professionals should be encouraged to carry mouth swab kits in the field.
 
Remember, however, that the collection of evidence from a mouth swab is governed by the same requirements and exceptions described above. Mouth swabs can be used to collect a DNA reference sample with suspects, and they can be used by any law enforcement professional who has received training in how to collect, store, and transfer them. They can be particularly useful because suspects often consent to providing mouth swabs to law enforcement personnel in the field, in order to avoid being transported to a medical facility. The procedure is also much less intrusive than drawing blood. As a result, many law enforcement agencies actually prefer mouth swabs over a forensic examination of the suspect, because medical personnel are not needed and it is therefore less expensive and time consuming. On the other hand, a mouth swab can only be used to obtain a DNA sample and not the other types of forensic evidence I have talked about in this article, so I see it as a valuable tool – but not one that replaces the need for a full forensic examination of the suspect when appropriate. For information on how to use mouth swabs, detailed guidance is provided in the Appendix.
 
Components of a suspect examination
 
To address the issue regarding whether police personnel are qualified to conduct suspect forensic examinations, it is important for SARRT communities to first agree on what is to be included in a complete and thorough suspect examination. Clearly, agencies that use officers or even evidence technicians to collect such evidence are only doing a very superficial examination. As with the victim, a thorough forensic examination of a sexual assault suspect will include the following:

• taking a limited medical history (based on the type of legal consent/authorization);
• checking vital signs;
• conducting a general and genital examination, and;
• collecting any physical evidence such as clothing, hair samples, foreign debris, and swabs.

Typically, the forensic examination of a suspect is actually identical to the victim examination – except of course, there is no pelvic examination. Another difference is that -- unlike the victim examination -- law enforcement personnel must remain present at all times during the forensic examination of a suspect. This must be clearly stated in any protocol that is developed. And although it is not a common problem, policies must also address how force will be used if it is necessary with a suspect who is combative or dangerous.
 
More information about the protocol for suspect examinations is discussed in the Concepts and Issues Paper on Investigating Sexual Assault that was released in 2005 by the National Law Enforcement Policy Center of the International Association of Chiefs of Police (IACP). It was designed to provide background discussion for their Model Policy on sexual assault investigation that was released at the same time. The following excerpt appears on page 12: