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In the last year or so, I have received more and more requests
for information to clarify what the timeline should be for
conducting a forensic examination following a victim’s report of
a sexual assault. These requests have come from around the
country, from forensic examiners and other medical
professionals, as well as law enforcement officers, prosecutors,
and even victim advocacy organizations. And while I have tried
to provide concrete guidance regarding the time limits for the
forensic examination, I have to admit that I find questions such
as these fascinating – because they are so often steeped in
traditions of doing things just because “we’ve always done it
that way.” In fact, I have always been intrigued with the
historical reasons why institutions such as law enforcement
agencies and health care facilities do things certain ways.
When I travel and train around the country, I often ask the
professionals I meet who are working in the field of sexual
assault about the origin of a particular policy or practice.
Many times, they will respond by saying that “it’s just the way
it’s always been done,” but few know the history of how or why
the decision was made. To illustrate, the San Diego Police
Department has used a 72-hour cutoff for sexual assault forensic
examinations since the 1970’s, for children, adolescents and
adults alike. Of course, this is as long as most San Diego
police officers can remember – “the way it’s always been done.”
Yet few know when or why the practice was started.
In fact, most communities continue to use a 72-hour rule so that
forensic examinations are authorized, ordered, and conducted
within a 72-hour period following the sexual assault. However, I
have traveled to communities where law enforcement and forensic
examiners use 96 hours as their cutoff. Oregon uses a very
unique 84 hours. Unfortunately, some jurisdictions still use a
very narrow 24-hour cutoff, with forensic examinations only
being conducted within a single day of the sexual assault.
Frankly, I think such an extreme cutoff of 24 hours is tragic
for sexual assault victims who rarely report the crime within
this timeline.
Yet the saddest part is that many times these rules are applied
rigidly, so that a victim reporting a sexual assault even 1 hour
outside the timeline is refused a forensic examination. I have
personally seen forensic examiners refuse to do an exam at 73
hours after a sexual assault. I’ve also seen plenty of
situations where law enforcement officers refuse to authorize an
exam because it doesn’t meet the exact criteria established in
their jurisdiction, even though I thought there was a reasonable
probability that they would still be able to collect and
document forensic evidence based on the facts of the case. The
purpose of this month’s “Promising Practices” article is to
challenge such rigid guidelines and to encourage forensic
examiners and law enforcement professionals to make the
determination regarding whether or not to conduct a forensic
examination on a case-by-case basis, by evaluating the
likelihood that probative evidence would be recovered.
Prosecutors might also need to prepare to have an expert testify
as to why an exam was or was not conducted.
To me, the bottom line is that whatever time cutoff is adopted
in a community for the time limits for a forensic examination --
whether it is 72 hours, 96 hours, or even 24 hours -- we must
all recognize that these cutoffs should be used only as
guidelines and not rigid policies. Depending on the situation,
it will often make sense to conduct a forensic examination
outside that window of time. In fact, this determination can
really only be made on the basis of carefully considering the
facts of the case and the potential for recovering probative
evidence from the forensic examination. But now I’m getting
ahead of myself. First let’s look a bit more carefully at the
history of the “72-hour rule” and see where it came from and
whether it is supported by the scientific evidence.
The history of the “72-hour rule”
When we step back, it seems clear that the question of time
limits for conducting a forensic examination should be based on
the scientific evidence regarding how long evidence is likely to
last on the body of the victim of a sexual assault. Thus, when I
ask professionals in the sexual assault field, I am typically
told that the 72-hour cutoff is used because biological and
perhaps even trace evidence are only likely to be successfully
recovered from the victim’s body within a window of time ranging
from 24-96 hours. Yet many of these professionals are surprised
to learn that the timeline of 72 hours really has little to do
with standards established by the forensic science community.
In fact, the 72 hour cutoff was established by the medical
community because it is generally considered the window of
opportunity for successfully treating victims of sexual violence
for sexually transmitted infections (STI’s) and any pregnancy
that might have resulted from the sexual assault (citation 1).
It has very little to do with the likelihood of recovering
forensic evidence. This comes as a surprise to many
professionals in the field of sexual assault. Yet it shouldn’t.
The reality is the forensic examination has always focused more
on the medical care of the sexual assault survivor than the
forensic evidence that might be used to prosecute and convict
sex offenders. I think we can all agree that this focus is not
totally misplaced. Appropriate victim centered care is of course
critical to our field and must be a primary focus of the
forensic examination. Yet the good news is that this is not an
either-or proposition. The truth is that any survivor of sexual
assault who is willing to go through a forensic examination
might at least want to consider also holding the offender
accountable for their crime.
Therefore, while victim-centered medical care must be a primary
purpose of the forensic examination, it does not have to be
provided at the expense of documenting and collecting valuable
forensic evidence. Both objectives can be accomplished at the
same time, providing quality medical care for survivors of
sexual assault while still collecting and documenting forensic
evidence to support a successful prosecution.
But this leaves the question of the timeline unanswered. If the
“72 hour rule” is based on the issues of medical care and not
forensic evidence, what guidelines should we use for the
collection of evidence in a forensic exam?
What does the scientific literature have to say?
It seems clear that if we had a realistic picture of how long
certain types of evidence remained on the body of the victim
following a sexual assault, it would be easy to develop
guidelines for the time limits on a forensic examination. Yet
when we look to the scientific evidence, no such consensus is
seen. In fact, there is relatively little data in the scientific
literature regarding the various sites of evidence collection
and the timelines for recovering biological materials from
living or deceased victims. Worse, the studies that have been
conducted are outdated and utilize very different methods which
make it difficult to generalize the conclusions.
Despite these limitations, there are a few things that the
scientific literature can tell us. First and foremost, the
scientific literature clearly raises the tantalizing possibility
that forensic evidence may be available on the body of the
victim long after 72 hours following the sexual assault. This
isn’t a recent discovery. In fact, much of this scientific
literature dates back to the 1960’s and 1970’s -- long before
law enforcement even had DNA technology available. So while this
outdated literature suggests that evidence might be available
long after 72 hours, it is especially frustrating to realize
that the time window may actually be much wider than that,
because technology and methodology have improved since then.
Just to give you a few examples, consider the following:
First, a study was conducted by Silverman and Silverman in 1975
with a total of 675 women in 1975 (citation 2). Analysis
revealed that “spermatozoa were found irregularly after the
seventh and rarely after the tenth postcoital day.” In that
article, the authors also summarized other research documenting
the presence of motile spermatazoa in the vagina for a period of
time ranging from 3 hours (citation 3) to 24 hours (citation 4)
following intercourse, and in the cervix from 110 hours
(citation 5) to 7 days (citation 6) afterward. The authors even
cited research reporting nonmotile spermatozoa in the cervix for
12 days (citation 7) and in the vagina for lengths of time
varying from 14 hours to 17 days (citation 7-12). Finally, the
authors cite anecdotal reports of spermatozoa persisting “in the
vaginas of rape-murder victims for 70 days (citation 5) and
three to four months” (citation 13). Taken together, this
research strongly suggests that the “72-hour rule” may
dramatically underestimate how long evidence of spermatazoa
could potentially be recovered from the body of a sexual assault
victim.
In another study, the researcher analyzed smears collected
during the course of 178 routine genital examinations of women
visiting a clinic for venereal diseases (citation 14). These
smears were analyzed for spermatozoa, with the amount of time
since last intercourse varying from 2 hours to 21 days. Results
indicated that: “Sperms were found in the cervix up to 12
days after coitus and in the vagina up to 9 days after."
Again, this research raises serious questions regarding the
72-hour rule as a guideline for collecting forensic evidence
from sexual assault victims.
However, a third – and more recent – 1992 study contradicted
these others by concluding that an examination is only warranted
if the sexual assault victim reports within 36 hours (citation
15). Clearly, the scientific evidence is not conclusive, but it
does strongly suggest that forensic evidence may be recovered
from the victim’s body far longer than 72 hours following a
sexual assault.
Sites of recovery
While there is very little research available to determine the
timeframe for recovering evidence from the body of a sexual
assault victim, there is even less information regarding the
best sites for recovery. At this point, only anecdotal case
reports are available, but they suggest that the cervical os may
be the best site for recovery of forensic evidence from a sexual
assault victim. Yet again there is an almost total mismatch
between the evidence from the scientific literature (limited as
it may be) and the current practice of most professionals in the
field, because most standardized forensic kits recommend vaginal
pool collection only (citation 16). So while we wait for
research to definitively establish the length of time that
forensic evidence is available in various sites on the body, the
current information may also suggest that best practice might
include evidence collection from the cervical os in addition to
the vaginal pool.
The lack of feedback on real forensic examinations
But let’s forget about the scientific literature for a moment.
Now let’s turn to the question of what evidence has been
recovered from real forensic examinations conducted with sexual
assault victims. What can we learn from these real examinations
regarding the evidence that can be recovered from the body of a
sexual assault victim? Amazingly, the answer is again very
little.
As we all know, based on recent media coverage and legislative
activity, most sexual assault evidence kits have not been
analyzed in the United States in a timely manner (citation 17).
We’ve all heard about – and possibly even taken some heat for –
the current backlog of these sexual assault evidence kits that
have not been processed. Personally, I think this is also due at
least in part to the lack of focus on the forensic component of
the sexual assault examination, as I mentioned before. Because
we have primarily thought of the examination in medical rather
than forensic terms, our attention has focused more on the
issues of medical care than evidence collection and laboratory
analysis.
Yet regardless of the reasons for it, we all know that the
backlog of sexual assault evidence kits is a real thing. The sad
reality is that law enforcement professionals have rarely had
the access to laboratory resources that they need to efficiently
analyze forensic examination kits from sexual assault victims
(and suspects), as well as other crime scene evidence that might
be stored in police property rooms. Tragically, many of these
kits still sit in police property rooms or crime laboratories,
simply gathering dust or freezer burn while they wait to be
analyzed. So generally law enforcement professionals and
prosecutors do not get the feedback they need regarding the
types of evidence that are analyzed, the findings of these
analyses, and what they have to say regarding how long evidence
is actually available from various collection sites.
Similarly, Sexual Assault Forensic Examiners only rarely
received feedback about the swabs they collected when a
substance fluoresced, or the laboratory results of the many
other swabs and samples collected from sexual assault victims
and suspects. Except for those very few cases that go to trial,
such information is not typically provided to the forensic
examiners who must then continue to follow standardized protocol
and conduct sexual assault examinations “the way they’ve always
been done” without knowing whether or not this is providing the
best evidence that could be used to hold sex offenders
accountable.
As a result, law enforcement officers, prosecutors, forensic
examiners, advocates and survivors are starving for feedback and
information from forensic scientists about the kits that have
been collected, for a period of more than two decades in some
jurisdictions. With advancing DNA technology, it is clearly time
to conduct the analyses to determine the timeframe within which
forensic evidence can be found on the body of sexual assault
victims and suspects. It is time to answer such questions as:
-
How long after a
vaginal rape can spermatozoa be recovered from the vagina and
cervix of the victim? What are the best sites of recovery?
-
How long after a
sexual assault involving oral penetration can evidence be
recovered from the victim’s mouth and/or nasal cavity, and what
are the best methods for evidence collection?
-
How many hours
after forced anal intercourse might a swab taken from the
victim’s rectum provide a suspect’s DNA profile?
-
How many hours
following digital penetration might the victim’s epithelial
cells be found under the assailant’s fingernails (even after
bathing)?
-
How many hours
after a victim has been forced to orally copulate a suspect
should a suspect examination be conducted to swab the suspect’s
penis and examine other parts of his body for any injury that
might have resulted from a struggle with the victim?
These are the
type of questions that can potentially be answered with our
current technology and the sexual assault evidence kits that are
available. Yet until now, the necessary resources have not been
dedicated to answering them. So we don’t know. Clearly, research
is needed to establish which types of evidence can be
recovered from which sites on the body for what period
of time following a sexual assault.
So what rule should we use for now?
Of course, none of us have the luxury of waiting until the
research offers definitive conclusions to answer this question.
As professionals in the field of sexual assault response, we
need to use the information that is currently available to
develop the most responsible policies we can. So let’s look at
what we know so far. As many of you know, the most up–to-date
guidance in this area is included in the national protocol for
the medical forensic examination, which was released just this
last fall by the Office on Violence Against Women. This protocol
was developed on the basis of the scientific research and case
studies cited here, as well as the other information that is
available. With respect to the question of time limits for the
forensic examination, this protocol thus provides the following
guidance:
“Recognize that evidence may be available beyond 72 hours
after the assault. In recent history, 72 hours after the
sexual assault has been considered a guideline to use as an
outside limit for obtaining evidence for the sexual assault
evidence collection kit. But research and evidence analysis
indicate that some evidence may be available beyond this time
period. For example, spermatozoa might be found inside the
cervix for up to two weeks after the assault. Urine may reveal
traces of certain drugs up to 96 hours after ingestion”
(citation 18).
Clearly, this protocol challenges the rigid application of “the
72-hour rule,” or any other arbitrary timeline for that matter.
Rather, the new national protocol recognizes that some evidence
may be recovered after that time period, so the decision to
conduct a forensic examination must be made on the basis of the
specific characteristics of each case and the likelihood of
recovering probative evidence. When this is combined with the
lessons learned from the limited scientific literature and
anecdotal case studies, it is clear that rigid application of
the 72-hour rule does not currently reflect best practice in the
field.
So, what exactly is the correct answer? Should a victim of
sexual assault have a forensic examination within 24-36-72-84 or
96 hours of their sexual assault? In my opinion, the answer is
that none of these should be used as a rigid cutoff. While 72-96
hours might be used as a general guideline, I believe that
best practice dictates that every sexual assault must be
evaluated on a case by case basis. The question of whether
or not to authorize or conduct a forensic examination should
therefore be based on the facts of the case, the victim’s
history, the likelihood of recovering evidence, and the types of
evidence that will be needed for successful prosecution. To
explain what I mean, let’s look at a few examples.
Stranger sexual assaults
First, let’s look at the example of a stranger sexual assault.
If you are a law enforcement professional investigating a
nighttime home invasion where the victim was awakened and
sexually assaulted in a room with little to no lighting, it is
clear that identification of the suspect will be dependent on
forensics. In other words, forensic evidence such as biological
evidence and trace evidence will be critical for the successful
prosecution of a stranger sexual assault case where the victim
has no idea who the suspect is and little chance of making any
sort of identification. If the determination is made that
evidence might still be available, this suggests that a forensic
examination should probably be conducted even if the victim
reports well beyond the guideline of 72 or even 96 hours.
Similarly, forensic evidence will be critical in cases where the
victim is barely able to see the perpetrator’s face, perhaps
because he knocked her to the ground immediately, approached her
from behind, covered her face with a pillow, or covered his own
face with a ski mask. Based on the history of such a case, the
victim will again be unlikely to identify the suspect so
forensic evidence may be critical for developing probable cause
to support an arrest. For prosecutors, forensic evidence will
also be critical to convince a jury of the suspect’s guilt
beyond a reasonable doubt. Again, this suggests a forensic
examination may well be warranted beyond the guideline of 72-96
hours if the determination is made that evidence might still be
available on the body of the victim.
Clearly, this type of determination requires “thinking outside
the box,” by relying less on specified timelines and focusing
more on the facts of the case and the types of evidence that are
going to be critically important for successful prosecution.
Personally, I would consider authorizing a forensic
examination up to three weeks following a stranger sexual
assault, depending on the type of assault and the potential
transfer of forensic evidence. This conclusion is made on the
basis of the scientific literature summarized above and the
state of DNA technology today. In fact, the American College of
Emergency Room Physicians published a document entitled
“Evaluation and Management of the Sexually Assaulted or Sexually
Abused Patient.” In it, they state that:
“New technology, such as DNA, may identify the perpetrator in
cases in which evidence is present in the vagina for 3 weeks or
more and on clothing for years; therefore, in selected cases,
the kit may be completed after 72 hours” (citation 1).
Non-stranger sexual assault
This type of “thinking outside the box” is just as important –
and in fact, perhaps more important -- in the case of
non-stranger sexual assault. After all, non-stranger sexual
assault is much more common than sexual assault committed by a
stranger (citation 19). In such cases of non-stranger sexual
assault, the defense is not likely to focus on identity (“you
got the wrong guy”) but rather on consent (“yeah, we had sex,
but she wanted it”). Therefore, the focus of the investigation
must be on overcoming the consent defense by corroborating the
use of force, threat, or fear. Of course, evidence will also be
collected to establish the identity of the suspect (such as
bodily fluid, or even trace evidence). However, the forensic
examination must go beyond this evidence of identity and
emphasize the documentation of genital and non-genital injury
(e.g., bruises, abrasions) to challenge the defense claim that
the victim consented to the sexual activity.
Because injuries can often be observed and documented beyond
72-96 hours, the specific facts of the case should always be
used to determine whether a forensic examination is warranted
beyond that standard timeframe. For example, in the case of a
non-stranger sexual assault, it is critically important that
first responders determine whether the victim has any present
complaint of pain, bleeding, burning, or tenderness. These facts
and the evidence to corroborate them might be essential in later
overcoming a consent defense by the suspect. Therefore, if
any such indications are present, I believe that a forensic
examination should be conducted with the victim of sexual
assault, no matter how many days have passed since the assault.
Other sources of evidence
The notion of “thinking outside the box” also pertains to the
sources of crime scene evidence in a sexual assault case. In
fact, I have to admit that I am somewhat disturbed by the more
limited focus on DNA evidence and the backlog of victim sexual
assault evidence kits. While sexual assault kits are certainly
great sources of evidence in some cases, many law enforcement
professionals and others often overlook other sources of
evidence that might be even more probative.
Now don’t get me wrong. For those who don’t know me well
personally, I can tell you that I am one of the biggest
cheerleaders for DNA technology around. I certainly believe that
recent developments in improving our access to DNA technology
are critically important. For example, both the Debbie Smith Act
and President Bush’s DNA Initiative (citation 20) represent a
big step forward and an important victory for sexual assault
victims. Many law enforcement officers and medical personnel
have waited their entire careers for the DNA technology that is
available today.
Yet at the same time, I am frustrated by the number of
conversations and initiatives focused exclusively on convicted
offender DNA analysis and the backlog of sexual assault kits.
The truth is, depending on the characteristics of the assault
and the specific case history, a sexual assault kit is sometimes
the last place we should look for probative evidence. For
example, consider a case where the victim states that an
unidentified suspect used a condom during the sexual assault,
but he also sucked on her breast. In this situation, a forensic
examination might not be warranted if the victim delayed
reporting for a week, because the use of the condom will likely
mean that forensic evidence won’t be successfully recovered.
However, if the victim reports within a few hours or days and
has not bathed since the sexual assault, a swab from her breast
may be the best source of evidence in this case. However, even
if a victim has bathed or delayed reporting, the victim’s bra
may still be available and may provide the best source of
probative evidence. With today’s DNA technology, DNA has even
been successfully recovered from evidence that has been washed
or dry-cleaned.
As this example illustrates, investigators must not focus on the
forensic examination as the only source of potential evidence in
a sexual assault case. Rather, investigators must look at all of
the potential evidence to be collected from the various crime
scenes, including the victim’s body and clothing, the suspect’s
body and clothing, the location(s) where the assault(s) took
place, and any additional locations where transfer evidence
might be found.
As another example, the blue dress that the victim was wearing
on the night of the sexual assault might still be hanging in the
closet six months later, without having been washed. Similarly,
evidence such as the sofa cushion where the assault occurred or
the foreign object that was inserted into the victim’s rectum
might still be available long after the sexual assault took
place.
In fact, clothing is often the best source of evidence in a
sexual assault case. Unlike the human body that continues to
change as a result of biological needs and hygiene, crime scene
evidence such as clothing is typically stable. Therefore, DNA
evidence that is recovered from such a source is likely to be
detectable for many years and perhaps even decades following a
sexual assault.
Consider this: in July 2002, the San Diego Police Department’s
Sex Crimes Unit and DNA laboratory participated in a study to
determine how often semen was found on the clothing of victims
of sexual assault (citation 21). This study was conducted by
Isaac Caain, a Master’s student, who analyzed 25 cases of sexual
assault involving adolescent victims (ages 14-17) and 51 cases
with adult victims (18 years and older). These cases had been
investigated by the San Diego Police Department and analyzed by
the DNA laboratory. However, the results may come as a surprise.
For example:
In the adolescent cases, semen was found on the victim’s
underwear in 61.5% of the cases where the underwear was examined
by a criminalist. In fact, DNA analysis of semen found on
the victim’s underwear was the most common piece of crime scene
evidence associated with suspect identification in these
adolescent cases. Semen was also found on the victim’s pants,
shorts, or skirt in 37.5% of cases where they were examined by a
criminalist.
In the adult cases, semen was found on the victim’s underwear
in 40% of the cases where it was examined by a criminalist.
Semen was also found on the victim’s pants, shorts, or skirt in
28.6% of the cases where they were examined by a criminalist.
Clearly, clothing and other crime scene evidence can be an
incredible source of evidence in sexual assault cases involving
both adolescent and adult victims. Yet the importance of this
type of evidence is all too often overlooked.
The importance of suspect examinations
Another source of evidence that is critically important but all
too often overlooked 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 (citation 22). Yet this is surprising given the
potential for recovering probative evidence from the body of the
suspect.
When evaluating potential sources of evidence, we as law
enforcement professionals must always keep in mind that anything
that could be transferred from the suspect to the victim may
also be transferred from the victim to the suspect. Therefore,
depending on the type of offense, the body of the suspect will
often be the best source of probative evidence. Consider this:
According to the same Caain study described above, 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 to establish 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 may be a better source of evidence than the forensic
examination of the victim. All of these potential sources should
be considered when “thinking outside the box.” 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.
By now I hope it is obvious that the forensic examination of the
victim is only one source of potential evidence – and often not
the best source – in the investigation of a sexual assault case.
Other sources of potential evidence that might be equally
important -- or even more important depending on the specific
case history -- include the clothing of the victim and/or
suspect, the forensic examination of the suspect, crime scene
evidence from the location(s) of the assault(s), and other
locations where evidence from the victim, suspect, or crime
scene might have been transferred.
What the future holds
Based on these findings and advancing technology in genetic
markers and DNA, it is clear that we need research to study the
use of physical evidence in the investigation and prosecution of
sexual assault cases. I have talked about this issue already,
with the hope that we can answer the kind of critically
important questions of how long evidence is available from what
sites of the body. Only then will we be able to truly determine
the optimal procedures for collecting and utilizing forensic
evidence. But it is important to note that this research must be
based on current DNA standards, which are far different than
those available in the studies cited earlier.
Specifically, this type of research is needed to evaluate the
findings of crime laboratories and compare them with the unique
characteristics of each sexual assault case. This will include
the analysis of such case variables 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., oral swab, internal vaginal swab,
external vaginal swab, or swabs taken from the victim’s breast
or neck based on her verbal history of the activities involved
in the assault).
The findings
would certainly help us to determine which types of evidence are
likely to be found from which sources and for what length of
time. With such research findings in hand, we would then be much
better equipped to provide guidelines for the forensic
examination that are relevant to the current state of forensic
science.
While we wait for this research, however, I have two primary
recommendations to use in the meantime. First, I have to
reiterate my advice for investigators to “think outside the box”
by considering other sources of potential evidence in a sexual
assault case. Although sexual assault victim kits are now being
analyzed much more frequently in crime laboratories and private
laboratories throughout the country and the world, it is clear
that there is still very little focus on other critical sources
of evidence such as the suspect examination and the crime scene.
Therefore, when we talk about the backlog of DNA evidence and
sexual assault evidence kits, we also need to consider better
utilizing the other rich sources of biological evidence that are
often available to successfully investigate and prosecute sexual
violence.
Second, I strongly recommend multi-disciplinary consultation
anytime there is a question about whether or not to authorize a
forensic examination or request the analysis of any forensic
evidence collected from the examination. In fact, many Sexual
Assault Response Teams now include forensic scientists, and this
has enormous potential for enhancing the level of communication
between first responders and criminalists. But of course I know
that this ideal is not yet possible for many of you reading this
article. So my final word of advice is for you: If you are a
first responder, and an expert is not readily available, and you
are evaluating whether to recommend a sexual assault forensic
examination, keep in mind that it is probably best to err on the
side of caution and obtain one. As we all know, the evidence
will eventually be lost if a forensic examination is not
obtained, so while we wait for the definitive research results
to come in, I think best practice is to facilitate an
examination if there is any reasonable likelihood that forensic
evidence may be recovered and/or injuries observed and
documented.
References
1. “Evaluation and Management of the Sexually Assaulted or
Sexually Abused Patient,” American College of Emergency
Physicians, Dallas, Texas, June 1999,
www.acep.org.
2. Silverman, E.M. and Silverman, A.G. “Persistence of
Spermatozoa in the Lower Genital Tracts of Women,” Journal of
the American Medical Association, Volume 240, Number 17, October
20, 1978.
3. Voight, J., "Sexual Offenses in Copenhagen: A Medicolegal
Study," Forensic Science, Volume 1, Pages 67-76, 1972.
4. Wallace-Haggens, M.J., Duffy, B.J., and Holtrop, H.R.,
“Recovery of Spermatozoa from Human Vaginal Washings,” Fertility
and Sterilization, Volume 26, Pages 175-179, 1975.
5. Sharpe, N., "The
Significance of Spermatozoa in Victims of Sexual Offenses."
Canadian Medical Association Journal, Volume 89, Pages 513-514,
1963.
6. Perloff, W.H. and Steinberger, E., "In Vivo Survival of
Spermatozoa in Cervical Mucus", American Journal of Obstetric
Gynecology, Volume 88, Pages 439-442, 1964.
7. Morrison, A.J., "Persistence of Spermatozoa in the Vagina and
Cervix:, British Journal of Venereal Disease, Volume 48, Pages
141-143, 1972.
8. Davies, A., and Wilson, E., "The Persistence of Seminal
Constituents in the Human Vagina", Forensic Scit 3:45-55, 1974.
9. Eungprabhanth, V., "Finding of Spermatozoa in the Vagina
Related to Elapsed Time after Coitus", Z. Rechtsmed 74:301-304,
l974.
10. Gomez, R.R., Wunsch, C.P., and David, J.H., et al:
"Qualitative and Quanitative Determinations of Acid Phosphatase
Activity in Vaginal Washings", AM J. Clin Pathol 64:423-432,
l975.
11. Pollack, O.J., "Semen and Seminal Stains", Arch Pathol
35:140-184, 1943.
12. Rupp, J.C., "Sperm Survival and Prostatic Acid Phosphatase
Activity in Victims of Sexual Assault", J. Forensic Sci
14:177-183, 1969.
13. Camps, F., "Medical and Scientific Investigations in the
Christie Case", London, London Medical Publishing, 1953.
14. Morrison, A.I., “Persistence of Spermatozoa in the Vagina
and Cervix”, Special Treatment Centre, Queens Road, Barnsley,
Yorkshire, 1972.
15. Rainbow, B., Adkinson, C., Frost, T. and Peterson, G.F.,
“Female Sexual Assault: Medical and Legal Implications”, Annals
of Emergency Medicine, June, 1992.
16. Corey, T.S., Wetherton, A.R., Foncek, P.J., and Katz, D,
“Investigation of Time Interval for Recovery of Semen and
Spermatozoa from Female Internal Genitalia,” from the Office of
the Chief Medical Examiner, the Department of Pathology and
Laboratory Medicine, University of Louisville School of
Medicine, and the Kentucky State Police Forensic Science
Laboratory
17. U.S. Department of Justice, Survey of DNA Crime
Laboratories, 2001. This survey is a follow-up to the initial
survey of DNA crime labs in 1998. At the beginning of 2001, 81%
of DNA crime laboratories had backlogs totaling 16,081 subject
cases and 265,329 convicted offender samples. Available at:
www.ojp.usdoj.gov/bjs/
18. The complete national sexual assault forensic examination
protocol is available at
http://www.ojp.usdoj.gov/vawo/
19. U.S. Department
of Justice, Bureau of Justice Statistics, National Crime
Victimization Survey. During 2003, about seven in ten female
rape or sexual assault victims stated the offender was an
intimate, other relative, a friend or an acquaintance. October
2004. Available at:
http://www.ojp.usdoj.gov/bjs/cvict_c.htm
20. The 2005
Congressional Budget allocated $110 million dollars for the DNA
Backlog Elimination Act, to eliminate casework and offender
backlogs, strengthen crime lab capacity, train the criminal
justice community and identify missing persons.
21. Caain, I.T., “The Use of Physical Evidence in the
Investigation and Prosecution of Sexual Assault Cases.” A
Research Project Submitted to National University in Partial
Fulfillment of the Requirements for the Degree of Master of
Forensic Sciences, July 2002.
22. The State of
California Governor’s Office of Criminal Justice Planning has an
excellent Forensic Medical Report to document the sexual assault
suspect examination, available at
www.oes.ca.gov/Operational/OESHome.nsf/CJPD_Documents?OpenForm
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