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Rape and Sexual Offences:          Chapter 9: Forensic, Scientific and Medical Evidence

Contents:

Forensic Physicians

Forensic physicians (FP) are independent doctors whose duty is to the Court to collect evidence to assist in proving or disproving an offence. Prosecutors should not hesitate to contact them direct, rather than via police channels.

The service provided by forensic physicians and paediatricians is likely to vary depending on factors which include: their level of expertise; the facilities they use, whether a sexual assault referral centre (SARC), a hospital or a police victim examination suite or other; whether they are supported by crisis workers; and what care pathways to other support services are in place. Whilst some FPs report to a lead clinician and are regularly subject to peer review, this is not always the case.

The forensic medical examination should take place with informed consent once urgent medical treatment has been administered. The role of the forensic physician (FP) is both therapeutic and forensic and ideally the FP should ensure appropriate treatment for any injuries, arrange screening for sexually transmitted infections as appropriate, and consider and prescribe emergency contraception and post-exposure prophylaxis (if necessary). In addition the FP should conduct a top to toe forensic examination and record all injuries, however minor, and other findings on a detailed body chart and in note form using correct medical terminology.

One aim of the examination is to recover evidence to support the victim's assertion that a sexual assault has taken place without consent. External and internal areas of the complainant's body can be swabbed for samples that can be submitted for forensic examination with a view to revealing evidence, to identify or eliminate the suspect and the nature of the activity that has taken place.

Examinations may be recorded using a colposcope, a camera fitted with a very bright light. Contrary to popular misconception this is not a piece of equipment for internal use when used in this type of examination but can be used to record injuries in the anogenital area.

It is good practice to take urine or blood samples for the purposes of a toxicology report to establish levels of any alcohol or drugs (prescription or otherwise). Where it is alleged that the victim was incapable, through alcohol consumption or drug inducement, toxicological evidence may provide strong support for a lack of capacity to consent.

Whenever possible the victim's wishes in respect of gender of the FP should be met.

With the passing of time since the incident and the wishes of the complainant, it may not be appropriate to conduct a forensic medical examination. Experienced FPs, as well as forensic scientists, can advise on the length of time in which evidence, such as sperm, remain in a person's body following sexual activity. Sometimes victims are asked to return at a later date, where appropriate, to provide a hair sample, which may reveal any drug that was in the bloodstream at the time of the alleged assault that was not traceable in a blood sample. If this is likely the victim should be advised not to have their hair cut, dyed, or otherwise treated before the sample is taken.

In cases involving children, and depending upon their ages and the arrangements in place locally, a medical examination may involve a paediatrician or a suitably qualified forensic practitioner who has training in child sexual abuse examination or both. This examination may be undertaken at a hospital or at a children's SARC with appropriate facilities. Older children, and particularly the post-pubertal, may be examined by a FP but in special circumstances, for instance if a child is a hospital in-patient or has a physical or learning disability, it may be necessary to involve a paediatrician.

Whilst medical evidence is an important factor in the prosecution of rape its value is not always understood. CPS policy requires the FP to be included at the conference with the prosecutor, trial advocate and the investigating officer unless there are particular reasons for not doing so. Similarly the FP should be called as a live witness at trial unless there are considered reasons for not so doing. FPs often work as GPs or hospital consultants. Efforts should be made for them to give evidence at a time that causes as little disruption as possible to their work and their patients. Prosecutors should be aware of the impact when a busy clinic is cancelled.

It is essential that FPs' statements are never reduced to section 10 admissions without first consulting the FP to check that their meaning has not been diminished or misinterpreted.

One of the myths around rape is that victims will always have genital injuries. This is incorrect with many victims sustaining no genital injuries. Also, even where they may at the time have been injuries, if the allegation is historical, healing may have occurred. Lack of injuries is not fatal to a prosecution but jurors may consider lack of injuries as indicative of consent. Prosecutors need to overcome that misunderstanding by ensuring that evidence about the incidence of injuries is included by the FP in their statement. Also a statement about whether the medical evidence supports, refutes or is neutral in relation to the victim's account, should be included in the FP' s statement or report.

The question of whether FPs can give expert opinion on their findings is a vexed one with some FPs, despite significant experience, reluctant to put themselves forward as experts. Where FPs are inexperienced or unwilling to provide an opinion it may be necessary to instruct an expert who can provide an opinion based on the FP's recorded findings. In this case the expert carrying out the review will be dependent on the quality of the FP's examination and record of their findings.

Where an FP gives expert evidence they are entitled to see all the prosecution evidence to ensure that their opinion is soundly based. When FPs act as defence experts, they are invariably afforded the opportunity of seeing all the evidence, both prosecution and defence. Prosecutors must ensure that FPs acting on behalf of the Crown are at least as well prepared as those acting for the defence to ensure equality of arms.

The FP called to give expert evidence should be supplied with all the papers and photographs including any relevant additional evidence and the defence statement. The doctor may wish to provide a supplementary statement or report. The bundle of evidence must be sent by a secure route, hand delivered or sent by recorded delivery. Any expert evidence served by the defence should be passed to the prosecution expert at the earliest opportunity.


Prosecutors should consider the doctor's medical notes very carefully. They should not be routinely disclosed without proper consideration of the rules on disclosure. Where prosecutors are unsure of the significance of something recorded in the doctor's notes, they should check with the author of the notes rather than making assumptions.

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Forensic Evidence

  • Ensure the Police are aware of the need to preserve the evidence and avoiding cross-contamination, particularly where there is a named suspect for the offence ;
  • Forensic examination of damage to clothing may provide support for whether or not sexual activity was non consensual;
  • Body fluids, DNA , fibres, hairs, lubricants, toxicology, marks and traces are all capable of revealing useful evidence;
  • Due to the rapid development of new forensic techniques and scientific methods advice/training from forensic providers should be sought to ensure nothing is missed;
  • The forensic provider needs to receive copies of medical examination papers including body diagrams of victim and suspect where appropriate

Prosecutors should be aware of the full list of exhibits available in the case that may not have been submitted to the forensic provider for testing but could be considered as part of case building when creating the action plan on the MG3.

Where an expert opinion is to be sought the Police should also provide the defence statement to the forensic scientist as soon as is reasonably practicable.

Prosecutors should be aware that victims - due to trauma, feelings of shame, cultural or family concerns, or for other reasons - may not have provided full details of the incident. For example, a victim may not have mentioned anal penetration or oral ejaculation because they were too embarrassed to do so. Prosecutors should be prepared for this possibility and if samples can be requested to prove or disprove an issue, every effort should be made to obtain them.

Physical evidence from the scene

It is good practice for prosecutors to be involved in compiling the forensic strategy. Exhibits or samples sent for examination should be accompanied by a summary of the victim and suspect interviews. This will assist scientists to understand the sequence of events even before full statements or interview summaries are available. The officer in the case should update the forensic specialists with new information as it becomes available.

The Forensic Strategy may include the following issues:

  • Release of physical scenes;
  • Availability and significance of scene of crime job sheets and photographs;
  • Evidence necessary to prove that an offence as described has taken place;
  • Any apparent lack of evidence which would have been expected and which could challenge the victim's account of what happened;
  • Prioritisation of items of evidence for submission to the laboratory including intimate samples;
  • Evidential value of any samples already examined (e.g. using an early evidence kit);
  • Potential value of items, e.g. torn clothing, injuries, fingermarks;
  • Continuity;
  • Storage of exhibits not being immediately examined;
  • Costing (fast-track examination);
  • DNA - submission to the National DNA Database and possible screening;
  • Toxicology;
  • Glasses, bottles or cups if a drug-assisted offence is suspected;
  • Drug related paraphernalia or literature from the scene or suspects home address, intelligence from computers and mobile phones;
  • Any other action to assist the investigation

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