Barriers to the Effective Use of Medico-Legal Findings in Sexual Assault Cases Worldwide

(In)Competence

In both industrialized and less-developed countries a lack of competence among medical, law enforcement, forensic science, and legal professionals who deal with victims and their cases of sexual assault often negatively impacted the integrity of medico-legal findings. For example, East Timor’s Judicial System Monitoring Programme (2006) reported that only one physician in Dili, the capital city, had been trained specially to collect evidence in rape cases, leaving victims in the districts to be seen by local doctors who were providing medico-legal reports without having been instructed in medical forensic examination techniques (see also Human Rights Watch, 2004). Human Rights Watch (1999) found that certain examining physicians in Pakistan did not think it crucial that evidence of sexual contact be collected within 72 hours, in accordance with most protocols worldwide, insisting erroneously that semen/sperm could survive in a woman’s body up to one month (see also Brown, 2001). In one hospital in New York City, sexual assault examiners were noted to have collected and then “los[t] key evidence, including underwear and vaginal swabs” (Do sex assault victims, 2002, p. 61; see also Pyrek, 2007).

It was also observed in many other areas, such as Egypt, that physicians were often inadequately prepared to testify to the evidence collected (Hadi, Mishriky, & Al-Damanhoury, 2006; Pitre, 2005). D’Souza (2004) noted that in India this can mean, for instance, a reliance on medical jurisprudence textbooks that are focused on the verifiability of the victim’s virginity. As she further explained, “Virginity or the lack of such should not have any bearing on a case of sexual assault. . . . [And, t]hese clinical findings are misinterpreted in the Courts” (p. 5).

Across many regions, consistently shoddy investigations by law enforcement officials were documented. Human Rights Watch noted in their study of practices across several countries that in Peru, for example, “the police would fail to follow leads or thoroughly investigate the crime scene or refer women to get forensic evidence examinations in a timely manner” (Brown, 2001, p. 9). In Kenya, there have been accounts of police instructing victims to wash themselves following a rape prior to the collection of medico-legal evidence (Amnesty International, 2002), and instances in which officers have provided victims with rape kits that have been used previously have been reported in South Africa (Blass, 2004). In a report of the United Nations High Commissioner for Human Rights (2005), it was documented that in Sudan the police do not provide “[t]he courts . . . with comprehensive medical reports, but only with the medical evidence form . . . which often does not document the full extent of the injuries that would assist in the prosecution of rape” (pp. 2-3). When inadequately assembled medico-legal evidence does not prove that the intercourse was forced, rape victims can themselves face criminal charges.

In some jurisdictions forensic scientists were found to have mishandled specimens collected from victims, rendering their findings unreliable (Banks, 2006; Human Rights Watch, 1999; Thompson, 2006). A former scientist at a state laboratory in Queensland, Australia stated, “[I] was haunted by memories of submitting potentially unreliable DNA evidence to the courts” (McDonald, 2006). Speaking to a DNA forum at Griffith University, he added that it was not uncommon for him and his coworkers “to mix up DNA samples belonging to different cases” (McDonald). In American laboratories multiple instances of errors have been documented to have occurred in rape cases during evidence processing, including a mixing up or mislabeling of samples, cross contamination, and inadvertent transfer of DNA from one item to another (Pyrek, 2007; Thompson, 2006). In chronicling the documented errors in the processing of medico-legal evidence in crime laboratories in the United States, DiFonzo (2005) noted “the generally poor training and minimal educational requirements of forensic analysts . . . [including a frequent] lack of [voluntary] certification or license requirements” (p. 3).

Finally, judges and prosecutors often were exposed as “largely ignorant as to the significance and interpretation of forensic medical evidence in [sexual violence cases]” (Human Rights Watch, 1999, p. 4). For instance, Schafran’s (2005) account of an American judge subscribing to the erroneous notion that “true” rapes must involve violence underscored how medico-legal evidence can be misconstrued and misused in court in those cases of sexual assault that do occur without overt violence. In Cambodia it was documented, as in Mexico, that the absence of visible signs of violence or deep penetration typically lead a judge to declare incorrectly that the intercourse was consensual, or constituted indecent assault, a sex act not involving penetration (Cambodian League for the Promotion and Defense of Human Rights, 2004; Lemaitre & Constantin, 2002). The improper use of medico-legal evidence also stemmed from the often problematic interactions between legal professionals and those responsible for collecting and representing it in court. Human Rights Watch noted that across several jurisdictions, “[o]ne of the most glaring errors is when prosecutors ask forensic examiners to present legal conclusions, ‘was the victim raped’ as opposed to findings of fact that would support or refute the legal conclusions” (Brown, 2001, p. 15).

Contempt

Throughout industrialized and less-developed countries, sexist assumptions about and discriminatory and hostile attitudes toward women reporting rape were common among medical, law enforcement, forensic science, and legal professionals. There was a tendency across many jurisdictions, such as in Bangladesh, Colombia, and England, for some sexual assault examiners to disbelieve women and blame them for what was perceived to be their role in having precipitated the sexual assault through their appearance, mode of dress, or actions (e.g., Afsana, Rashid, & Thurston, 2006; Immigration and Refugee Board of Canada, 2005; Temkin, 1998). This had implications for what medico-legal findings, if any, were collected by them. Commenting on such practices in India, Prasad (1999) noted that in contrast to specific guidelines, “physicians routinely comment on the age, virginity, and character of a woman to demonstrate that she is sexually experienced, old enough, or promiscuous enough to consent to sexual relations, thereby raising doubts about the commission of rape” (p. 492). Similar practices were documented in the Dominican Republic. One medico-legal certificate read, “patient [is] female, nonvirgin, below the age of puberty, capable of conceiving, with adequately developed secondary sexual characteristics, and ‘with a . . . hymen not intact’” (Perez, 2005, p. 78).

Interviews with women from across Europe about their post-sexual assault experiences also revealed that some examiners become annoyed at having to gather evidence, behavior which could also influence what and how medico-legal findings are gathered. One woman in Germany recounted,

The first thing that the doctor . . . said was that without me he would have had free time. He was angry because he had dealt with a similar case . . . earlier that day and he was in a bad mood. . . . He said that people like me take up time for other important things. (Bacik, Maunsell, & Gogan, 1998, p. 91)

Although this incident occurred more than a decade ago, training to improve professional attitudes and forensic practices is still a priority in European member states (Council of Europe, Parliamentary Assembly, 2009).

We also found that medico-legal decisions made by police—which can hinder, halt, or aid in the progression of rape cases—were often linked to erroneous notions of what constitutes sexual assault, along with a blatant distrust and dislike of victims. For example, in Ethiopia, where “for the average police investigator rape means ‘breaking the hymen’” (Combrinck, 2003, p. 19), without medical proof of virginity prior to being victimized, the complaints often were not registered. According to Jordan (2004)—and many commenting in countries such as Jamaica, South Africa, and the United Kingdom (e.g., Amnesty International, 2006; Kim, Martin, & Denny, 2003; Lea, Lanvers, & Shaw, 2003)—in New Zealand, “a dominant and destructive characteristic underpinning police participation in rape investigations arises from exaggerated beliefs in the prevalence of false rape allegations” (p. 32). If “[t]here is no medical or forensic evidence, [even if] it is clear that sex took place, there is only the seemingly unreliable testimony of the complainant (p. 46). In 2004, in Philadelphia, it was discovered that “police investigators had downgraded or ignored hundreds of sex crimes” as well as disregarded pertinent evidence (McCoy, 2004). Responding to these allegations, one retired officer stated, “Half the girls that came in . . . were lying,” labeling the sex-crime service, “‘The Lying Bitches Unit’” (McCoy).

In a similar vein, forensic scientists’ practices were shown at times to lack neutrality, shaping what became available as medico-legal evidence in a given case, together with how it was analyzed and interpreted in court (Gerlach, 2004; Koppl, 2005; Parnis & Du Mont, 2002; Thompson, 1997; White & Du Mont, 2009). This subjectivity was often related to a lack of trust of women and inaccurate conceptions of who can be a “real” victim of rape. For instance, in Pakistan, a section head from the government forensic laboratory in Lahore told Human Rights Watch (1999) interviewers that “better forensic techniques were required to protect men from false accusations of rape” (p. 47).

Interviews with forensic scientists in Ontario, Canada revealed that personal characteristics of the victim made available on the history forms of rape kits sometimes influenced how they prioritized cases. One analyst stated,

Sometimes you can’t help but get a little more involved . . . giving it your all because . . . you’ve looked at who’s involved. . . . [W]hat type of complainant are you dealing with? . . . Is she young and inexperienced? (Parnis & Du Mont, 2002, p. 851)

In the United States, Thompson (2009) observed, “Forensic scientists rarely take steps to shield themselves from extraneous information . . . when making comparisons or interpreting test results” (p. 1576; see also Risinger, Saks, Thompson, & Rosenthal, 2002).

It must be recognized that legal practices in some jurisdictions are circumscribed by substantive and procedural laws which themselves might be gender biased (Seelinger et al., 2011). Nonetheless, extra-legal considerations related to certain antiwoman and rape-myth-centered attitudes of court personnel sometimes undermined the potential value of medico-legal evidence. In Peru, Lemaitre and Constantin (2002) stated, “Judges interpret evidence . . . in an openly sexist manner, leaving victims unprotected. . . . [They] systematically ignore and disregard evidence that might lead to an accusation” (pp. 25, 26). In one decision, “The court decided that a forensic exam that revealed . . . no recent loss of virginity was proof enough that the victim was not raped” (p. 26). A 1997 review of 61 sexual assault judgments in Canada revealed that in reaching a verdict of guilty, “[c]haracter evidence continu[ed] to play a far more fundamental role than medical evidence. . . . affect[ing] both the outcome of the trial and the . . . sentence” (Feldberg, 1997, p. 104). Systemic discriminatory beliefs and stereotypes about victims often still take precedence in Canadian court decisions (Balfour & Du Mont, 2012).

Corruption

In both industrialized and less-developed countries, corrupt activities of those medical, law enforcement, forensic science, and legal professionals involved in sexual assault cases were in some circumstances barriers to the proper collection, processing, analysis, and use of medico-legal findings. According to the head of clinical forensic medicine at an Australian institute, “investigators and other parties may bring considerable pressure to bear on [health] practitioners to provide an interpretation that would resolve an issue” (Wells, 2006, p. 189). In India and Bangladesh, for instance, accounts were given of physicians being paid to generate certain results and of representatives of the assailant pressuring them to alter their statements (Afsana et al., 2006; D’Souza, 1998). D’Souza (1998) noted that in the case of a young girl from Gujarat sexually assaulted by a male police officer, “The medical examination was conducted and recorded in such a way that the doctors shielded [him] and issued false certificates” (p. 113). In Sierra Leone, as well as in Uganda, state-employed doctors often charged money for the medical forensic examination, even though they were meant to be free of cost (Amnesty International, 2007; Human Rights Watch, 2003).

Instances of law enforcement corruption were also often linked to medico-legal practice. Human Rights Watch (1999) lamented the “loss of crucial forensic evidence” (p. 52) that occurred in Pakistan when “[t]he police commonly stall[ed] on registering [sexual assault] complaints in order to create leverage to demand bribes from both the complainant and the accused in blatant moves to obstruct justice” (p. 51; see also Amnesty International, 2007). In Kenya, women wanting access to official forms required for medical forensic examinations often had to bribe officers (Amnesty International, 2002), and in South Africa it was reported, as it was in Kenya, that “‘lost files’ [were] . . . a common problem . . . a euphemism meaning that someone else had blocked the case or that the police were asking the survivor for a bribe for the case to proceed” (Pearce, 2005, p. 39). In addition, it was observed in Cambodia that “[i]nvestigators are often motivated by money to mediate settlements rather than gather evidence” (Cambodian League for the Promotion and Defense of Human Rights, 2001, p. 25).

Forensic scientists were also documented as sometimes behaving corruptly in the post-sexual assault evidentiary context. In reference to mostly American forensic laboratories, for example, Thompson (1997) noted in reviewing a rape case for which he was the litigant,

[Analysts are] often in direct contact with detectives and know all about the case (at least from the police perspective). Consequently, there is a danger that [they] may intentionally or unintentionally be biased toward the police theory of the case when making subjective determinations. (p. 1123)

Indeed, more recently, several other American experts commented that analysts often “identify with the police . . . [and] seek out evidence supporting the police theory” (Koppl, 2005, p. 261; see also DiFonzo, 2005). In this regard, in the United States some analysts have even been prosecuted “for misconduct involving the fabrication of incriminating DNA data” (Gerlach, 2004, p. 91).

Court personnel likewise were sometimes found to have engaged in corrupt activities associated with sexual assault cases and the collection and use of medico-legal evidence (Cambodian League for the Promotion and Defense of Human Rights, 2006). For example, nongovernmental organizations in Cambodia reported that in rape and indecent assault cases, although the practices are illegal, “judges and prosecutors . . . request money from the victim or their lawyer for ‘expenses’ such as for transportation in order to conduct investigations” (Cambodian League for the Promotion and Defense of Human Rights, 2004, p. 11). This sort of corruption, they noted, can “deter victims from reporting a sexual assault and pursuing legal action” (p. 6).