Sexual Assault

The terms “rape” and “ sexual assault” are often used interchangeably. Historically the legal definition of rape was understood as the penile penetration of the vagina without the consent of the woman. Societal awareness, legislative frameworks and the development of specialized responses (medical, counselling, police) and services (crisis centres) were significantly broadened as a result of the women’s movement in the 1970s, which strongly advocated for the needs of victims and highlighted the absence of an appropriate societal response to a significant and serious issue. A person, either female or male, who has suffered a sexual assault has suffered a severe personal invasion with varying degrees of emotional, physical and genital injury. For this reason they need meticulous care and attention, with respect for their trauma and preferably a multidisciplinary response, which may involve medical, social work and investigative support. Definition Whilst legal terminology varies from jurisdiction to jurisdiction, sexual assault or rape is any sexual act which is nonconsensual. It may involve penetration of the genitalia or anus by any part of the body of another person or an object. The nonconsensual act may be enforced by physical violence, or the threat of physical violence or by coercion. Certain groups in the community are particularly vulnerable, such as people with physical or intellectual or psychological disability. Key points •

Sexual assault or rape is any sexual act which is nonconsensual

Prevalence Reported incidence figures vary greatly among countries and do not provide true indication of the extent of the problem. Estimates indicate that sexual assault is severely underreported and studies vary from 10 – 25 %. It is believed that male sexual assault is even more seriously underreported , but available data is very limited. Medical role Patients responses to sexual assault may vary greatly and medical practitioners coming into contact with sexual assault victims need to ensure that personal judgements are suspended and that their response is empathic. Knowledge of the medical, psychosocial and legal needs of the victim is important . The medical officer seeing a patient reporting a recent sexual assault has a dual role: 1.

a care-giving therapeutic role at the time of the acute assessment of the victim of sexual assault,

looking at immediate medical concerns , providing information and referral to specialist services where available as well as follow-up services if required.

 

2.

a role as the collector of forensic evidence - in their forensic role the medical officer does not act as an

advocate for the patient nor as an investigator, but as an impartial observer and recorder. The primary function of the medical officer who examines a patient in an emergency department of a hospital or a sexual assault centre immediately or soon after a report of sexual assault is to satisfy the medical needs of that patient. This should include asking them what their primary concerns are , which may be e.g. •

fears about safety

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pregnancy

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sexually transmitted diseases

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ascertaining the patients needs for a support person to be present throughout interview and/or examination

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offer to provide referral to specialist services if available

The secondary function of the medical officer is to offer to conduct a forensic examination and explain what this involves. The purpose of the forensic examination is for the medical officer to observe and record the history and examination of the patient. It is also to collect any samples from the patient which may contain the DNA of the assailant. Following this, the medical officer should be able to express an opinion, based on these observations, of the likely causation of any recorded injuries or of the possible reasons for the absence of injuries. This may then be considered, together with all the other evidence, in the subsequent investigation of the reported sexual assault. Medical officers involved in forensic examination should follow correct guidelines for documentation of findings as well as the collection and storage of forensic samples. The choices of the patient presenting after a sexual assault must lie with them. They may want:

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to leave without any medical or counselling assistance

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counselling only

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immediate medical attention with no examination.

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medical examination but no forensic examination

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If the patient is considering legal action or is undecided , the patient needs to be made aware of the option of having a full medical and forensic examination, together with counselling.

The person to decide if a forensic examination is to be done must be the patient themselves. It is important that the patient feels in control of what is happening to them while in the sexual assault centre or hospital. It is possible that they will perceive persuasion as coercion and it is very important that the medical examination is seen as part of the healing process and is not remembered as a continuation of the assault.

Patients who refuse a forensic examination should be given information about the time limits of the examination and should be invited to re-present if they change their minds. If a forensic examination is to be performed, it should preferably be performed as close as possible to the time of the reported assault and preferably within 72 hours. A forensic examination with documentation of injuries can be performed up to a week after the sexual assault but the likelihood of the forensic examination providing useful information is lessened the longer after the sexual assault that it takes place. It is very unlikely that an assailant’s DNA will be found on swabs longer than 72 hours after the sexual assault, but bruising and signs of resolving injuries may still be present. The protocol for recording the examination of a patient with a history of sexual assault vary from place to place but should contain the same basic components, concerning consent, history, examination and specimen collection. Consent to forensic examination Based on the request by the patient for a forensic examination, the first concern is to obtain the informed consent of the patient. Since a forensic examination is not a therapeutic procedure, informed consent is essential prior to any forensic examination. This means explaining to the patient the nature and purpose of the examination. It is necessary for the examining doctor to check with the patient that they understand the implications of the examination. Key points •

Forensic examination is not a therapeutic procedure.

Problems arising around consent Such problems include: •

treatment of a severe medical problem and stabilization of the medical condition must take priority over the forensic examination

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in the case of intoxication by alcohol or other drugs, the effect of the intoxication must wear off before the consent to perform the forensic examination is obtained

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in the event that it is not possible to obtain informed consent due to the medical condition of the victim, it may be possible to obtain consent from the next of kin, a previously appointed guardian or from a tribunal with the power to give consent.

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appropriate language interpreters should be made available to patients where necessary

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Signing interpreters should be available to a patient who is hearing impaired

The legal framework and authority available to intervene where there is a problem in obtaining consent will vary throughout countries. Medical officers need to be aware of the appropriate authorities and policies within their jurisdiction.

In New South Wales, Australia, the circumstances where the Guardianship Tribunal may be involved in giving consent to a forensic examination are: 1.

an unconscious patient where there is a suspicion of sexual assault and the patient’s condition is too

serious to wait for her/him to regain consciousness: 2.

a patient with a psychiatric condition who has complained of sexual assault and who is willing to be

examined but who (owing to thought disorder) does not have the capacity to consent to the forensic examination 3.

a patient with an intellectual disability who has complained of sexual assault and who does not have

the capacity to give informed consent 4.

the next of kin or a previously appointed guardian is unavailable or unwilling to give consent to the

forensic examination Since a forensic examination is not a therapeutic procedure it should never be performed on anyone who indicates that they are unwilling to have it done. History It is important that the medical officer takes the history in a sensitive , non judgmental and respectful manner due to the stigma that sexual assault victims often experience. Medical officers need to be mindful that some aspects of the detail of the sexual assault may be difficult for the patient to provide as they may see it as shameful or culturally inappropriate to discuss. Similarly, male victims of sexual assault, may be very apprehensive to discuss aspects of the sexual assault, which they found shameful . It is necessary to note and record the following •

date and time, if known, of the assault

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date and time of the arrival of the patient at the emergency department or sexual assault centre

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date and time of the commencement and conclusion of the examination.

These details, which should be obtained and recorded by the doctor, will confirm the contemporaneous nature of the notes which is important in subsequently writing a statement and giving evidence in court. Note the following information: •

changed clothes

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showered or bathed

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eaten or drunk fluids

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used toilet

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LMP

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last date of any sexual intercourse within 1 week of the examination

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use of condoms, by assailant and other partners

Brief details of the assault should be obtained and recorded, It is important to take sufficient history to

ensure an adequate examination but a detailed history of the circumstances surrounding the assault should be left to the investigating police officer. It is not necessary to record the exact words of the patient but if a particular phrase is used by the patient a number of times and is obviously distressing to them, the phrase can be recorded using the exact words and it should be put into inverted commas to distinguish it in the record of the assault. Ensure the history includes details of the contact between the patient and the assailant and should include any threats or force used. It should also include: •

where the assault took place

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nature of physical contact in detail

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if hit, what with e.g. Fist, hand, object

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what part of the body was involved

Details of the sexual contact must be specified. It is also important to use language that the patient understands. If the patient says “he had sex with me” remember that they often find it difficult to give a history of oral penetration and even more difficult to give a history of anal penetration. Males can be sexually assaulted too and will require the same level of sensitive understanding as female patients. Confirm the following: •

did the penis go into the genital area or the vagina

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any other genital contact e.g., penis with mouth, anus

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awareness of ejaculation

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any injury the patient may have caused to the assailant

General examination The medical officer must: •

offer a clear explanation of what the examination involves at every step as the examination proceeds

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be sensitive to the patient’s emotional state suspending the examination if necessary

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be sensitive to issues related to the gender of the medical officer

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be aware that some patients may want a support person throughout the examination

General assessment of presentation using descriptive instead of diagnostic terms: •

tearful rather than depressed

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frowning and shaking rather than anxious

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describe stains and damage of clothing e.g. white stains, brown or red stains

The final analysis of the stains as blood or semen is microscopic analysis by the forensic laboratory. The appearance of any damage of clothing should be noted e.g. frayed, torn, cut, burnt, etc. Each part of the body needs to be uncovered individually and examined. A good light source is important so that the colour and nature of all injuries seen can be accurately described and they can be measured and drawn on a body chart and described briefly in words. If there are a lot of individual injuries, number them for easier inclusion in a report. Note any of the following:

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frequently facial injuries are accompanied by buccal trauma corresponding to the tissues being forced against the teeth

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scalp injuries may occur from the hair being pulled and the presence of large numbers of loose hairs with roots attached should be noted

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finger tip bruising of the arms and inside thighs is typical of the type of trauma caused by manual restraint of the patient and forcing the thighs apart

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larger bruises may be due to punches, kicks or being hit by objects

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red marks around the wrists and ankles are typical of marks caused by being tied up

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sand and grass seeds may be found in the hair or may stick to parts of the body and the clothing

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multiple fine abrasions on the lumbar and sacral region may be caused by the assault taking place on a rough surface such as concrete

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weapons such as knives may leave fine lines or small abrasions when held against the skin.

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broad abrasions may be caused by dragging the patient from one place to another in the course of the assault.

Inconsistencies between the history and examination may be due to the following: •

part of the assault was forgotten by the patient when they gave you the history

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a previous assault

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prior accidental injury

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self-inflicted injuries prior to or after the reported assault

Genital examination The ano-genital area is the last part of the body to be examined. There may be no physical injuries to be seen or there may be minor injuries that are not specific to sexual assault. The time that has elapsed from the reported time of sexual assault and the time of examination is critical in assessing the appearance of these injuries. Note in particular: •

due to the excellent blood supply to the genital area most minor injuries are likely to be well healed after a few days

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minor roughening of the tissues of the introitus or opening of the vagina may be consistent with

consensual sexual intercourse, but if it is associated with other minor body trauma indicative of restraint and the use of force then the patient’s history of assault is partially substantiated

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digital assault, particularly when described as rough by the patient, may lead to a midline furrowing type of abrasion on the posterior wall of the vagina from the posterior commissure below the entry of the vagina to just inside the entry into the vagina.

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sometimes bruising or bite marks can be seen

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women who have not previously had sexual intercourse may have tears in the tissue of the hymen that can extend into the vaginal wall

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tears in the vaginal wall may also be seen when objects have been used, when the woman has been abstinent from sexual activity for a prolonged period or when the woman is postmenopausal

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bright bleeding from the vagina that continues for some time after a sexual assault must be looked at very carefully and the source found and controlled

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anal injuries may be seen in both male and female patients after sexual assault and may include bruising of the anal verge, bright bleeding, fissure formation and extreme anal pain with spasm

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if lubricant has been used there may be no physical signs at all, and minor anal injuries may heal extremely quickly

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the presence of an anal fissure may not necessarily be due to sexual assault as the commonest cause of anal fissure is constipation

In assessing both genital and anal injuries very soon after a sexual assault, the insertion of objects such as a speculum or a proctoscope should be considered very carefully. It will certainly increase the trauma of the examination for the victim and should only be done if there is a medical reason, such as the need to identify the source of bright bleeding or the extent of an injury. If the patient is unable to tolerate the insertion of a speculum or a proctoscope, their general condition should be assessed. If they appear well they should be given the option of returning for further assessment in a few days. If their condition is unstable and particularly if there is substantial bright bleeding from the anus or the vagina, consideration should be given to examination under general anaesthetic. This is for clinical reasons, not forensic reasons, but the results still need to be recorded in a forensic report. Specimen collection The last part of the examination is the collection of material for forensic examination in the laboratory. Many jurisdictions require that the forensic specimens are collected according to a specific protocol and you should familiarize yourself with such protocols before the need to use them occurs in order to minimize technical errors. Note the following:

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collect any foreign material in the hair such as vegetation, both in the scalp hair and the pubic area

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swabs and slides should be collected from all parts of the body where there has been penile contact,

even if there is no history of ejaculation •

from every place that a swab has been taken, a corresponding dry slide should be made

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it is possible to obtain vaginal swabs by separating the labia and without inserting a speculum

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swabs and slides must be taken from any area where there is a history of ejaculation onto the skin

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swabs and slides may also be taken if there is the likelihood of obtaining saliva samples such as over a

bite mark or when there is a history of sucking of the breasts or genital area •

a blood sample should be collected from the patient for identification purposes

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the only reason for using a speculum to obtain an endocervical swab and slide is if the patient is not

seen until several days after the assault when it may be possible to obtain sperm from the endocervical canal - the patient must have the reason for the examination explained to her and must feel able to refuse the examination if unable to tolerate speculum insertion •

if there appear to be loose hairs lying on the genital area the pubic hair can be combed and possible

hairs from an assailant may be collected •

there is no need to collect pubic hair from the patient as a collection of blood will give all the identifying

DNA information required about the patient •

if there is a history of the patient scratching the assailant, swabs should be taken from under the

fingernails and fingernail clippings should be collected •

the underpants worn immediately after the assault should be spread out to dry and placed in a paper

bag •

all of these specimens should be handled and labelled by the examining medical officer only and must

not be left unattended between collection and storage •

the swabs, slides, blood collected from the patient, underpants and all other specimens should be

placed in an envelope by the examining medical officer, together with a copy of the relevant notes of the forensic examination •

the envelope should be sealed and the medical officer should sign over the sealed flap

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the sealed envelope should be placed in a locked refrigerator with the details entered into a forensic

register •

the clothing of the patient should be retained for forensic examination if they are still wearing the

clothing in which the assault took place •

each item should be bagged separately in a paper bag to prevent cross contamination of any

evidence from one item to another. Key points •

Local protocols should be followed for forensic specimen collection.

Release of the forensic specimens The preferred option is that the forensic specimens are retained securely in the medical facility so that a decision about further legal action is delayed until after the immediate effects of the sexual assault have settled. Since the cross examination of a victim of sexual assault in a court room is frequently a gruelling

experience, the patient needs to consider this prior to the specimens being handed over, but you will need to follow the protocol of the particular service in which you are working. It is essential that there is provision for an unbroken chain of evidence from the collection of the specimens to their reception in the analytical laboratory, and the medical officer is responsible for ensuring their part in the secure sealing and storage of the specimens. If secure storage to ensure an unbroken chain of evidence is not available in the medical facility, the sealed envelope must be handed over to the accompanying police officer, who must also sign over the seal. The medical officer must record in the notes what happens to the forensic specimens. Medical report At the conclusion of the forensic assessment, the medical officer should re-read their notes and check that all the necessary information has been documented. Depending on the practice of the place where the assessment was performed, the medical officer may draft a medico-legal report immediately or when requested by the police service. The medico-legal report must conform to the legal requirements of the jurisdiction in which the examination was performed and must arise directly from the original notes, recorded contemporaneously with the forensic examination. It must contain the following: •

adequate identification of the patient

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adequate identification of the medical officer performing the examination

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a brief CV confirming the medical officer’s qualifications and expertise

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details of the time and place at which the examination took place

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details of the history of the sexual assault as recorded in the forensic examination

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details of the physical and genital examination conducted with a description of any injuries observed

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your opinion on whether these examination findings are consistent with the account of the sexual assault given to you by the patient

Giving evidence in court The above statement, together with the original examination records will form the basis of any evidence you may need to give in subsequent legal proceedings. As an Expert Witness, you are entitled to give opinion evidence, which is your opinion of the nature and causation of any observed injuries, or the absence of injuries. You are an independent witness whose responsibility is to inform the court of the results of your examination. You do not determine whether a sexual assault has taken place. That decision is made by the court. Your examination is only part of the evidence, which will also include the evidence of the complainant, the investigating police officer and any other person who can give evidence in the matter. The more objective you are in your evidence, the better you help the court to determine the facts of the

matter. Conclusion The medical officer involved in forensic examinations of patients reporting sexual assault has two distinct roles to fulfil. The primary one is to satisfy the medical needs of the patient, such as dealing with their fears about injury, pregnancy and infection. The secondary role is to conduct a non-traumatic, efficient forensic examination which collects all necessary evidence from the patient. From the record of this examination a statement can be prepared documenting any injuries and commenting on the likely causes of such injuries. The efficient conduct of the forensic medical examination and the subsequent evidence in court may be the most valuable help that the medical officer can provide if the patient subsequently decides to make a statement to the Police and a trial takes place. The successful management of reported sexual assault should involve a multidisciplinary response. The use of specialized sexual assault services, which include counselling, support during the legal process and medical follow-up will help to reduce the severity of long term effects commonly resulting from the trauma of sexual assault .