global review of the role of medico-legal evidence … · 2016-04-13 · background high rates of...

GLOBAL REVIEW OF THE ROLE OF GLOBAL REVIEW OF THE ROLE OF MEDICOMEDICO LEGAL EVIDENCE INLEGAL EVIDENCE INMEDICOMEDICO--LEGAL EVIDENCE IN LEGAL EVIDENCE IN

SEXUAL ASSAULT CASESSEXUAL ASSAULT CASES

Janice Du Mont & Deborah WhiteJanice Du Mont & Deborah White“Women’s Worlds”“Women’s Worlds”

Madrid, Spain, July 8, 2008Madrid, Spain, July 8, 2008

Available from: http://www.svri.org/

BackgroundBackgroundBackgroundBackgroundHigh rates of attrition and the absence or poor quality High rates of attrition and the absence or poor quality of assembled medicoof assembled medico legal evidence have legal evidence have of assembled medicoof assembled medico--legal evidence have legal evidence have characterized the criminal justice processing of sexual characterized the criminal justice processing of sexual assault casesassault cases

f h d l d ld df h d l d ld dIn many parts of the industrialized world, and In many parts of the industrialized world, and increasingly throughout developing regions, services increasingly throughout developing regions, services have been established to improve medicohave been established to improve medico--legal legal responses to sexual assault responses to sexual assault Generally believed that medicoGenerally believed that medico--legal evidence is legal evidence is crucial to the successful prosecution of sexual assault crucial to the successful prosecution of sexual assault ppcasescases

•• but has been no systematic collation or scrutiny of but has been no systematic collation or scrutiny of •• but has been no systematic collation or scrutiny of but has been no systematic collation or scrutiny of globally available evidence to support this contentionglobally available evidence to support this contention

Purpose of the ReviewPurpose of the ReviewPurpose of the ReviewPurpose of the Review

To provide an international overview To provide an international overview of the uses and impacts of medicoof the uses and impacts of medico--l l id i f l l l id i f l legal evidence in cases of sexual legal evidence in cases of sexual assault of adolescents and adultsassault of adolescents and adults

Scope of the Review [1]Scope of the Review [1]Scope of the Review [1]Scope of the Review [1]Peer reviewed scholarly works and nonPeer reviewed scholarly works and non--peerpeer--reviewed and grey literature reviewed and grey literature reviewed and grey literature reviewed and grey literature

•• journal articles, news articles, research reports, annual journal articles, news articles, research reports, annual reports discussion papers and monographsreports discussion papers and monographsreports, discussion papers, and monographsreports, discussion papers, and monographs

Perspectives from criminology, law, medicine, Perspectives from criminology, law, medicine, nursing psychology public health and sociology nursing psychology public health and sociology nursing, psychology, public health, and sociology nursing, psychology, public health, and sociology Materials written primarily in English Materials written primarily in English (but also (but also translated from Norwegian, Chinese, Portuguese, French, German, translated from Norwegian, Chinese, Portuguese, French, German, Swedish) Swedish) Swedish) Swedish)

Information from industrialized and developing Information from industrialized and developing nations, with particular focus on low and middle nations, with particular focus on low and middle income countriesincome countriesincome countriesincome countries

Scope of the Review [2]Scope of the Review [2]Scope of the Review [2]Scope of the Review [2]


Special attention paid to:Special attention paid to:

Studies that have evaluated the impact of Studies that have evaluated the impact of medicomedico--legal evidence on the legal legal evidence on the legal resolution of sexual assault cases by resolution of sexual assault cases by resolution of sexual assault cases by resolution of sexual assault cases by tracking them through criminal justice tracking them through criminal justice systemssystems


Describes professionals, protocols, and Describes professionals, protocols, and esc bes p o ess o a s, p otoco s, a desc bes p o ess o a s, p otoco s, a dprocedures involved in collecting and procedures involved in collecting and processing medicoprocessing medico--legal evidencelegal evidenceP fi di f di h i P fi di f di h i Presents findings from studies having Presents findings from studies having evaluated the impact of medicoevaluated the impact of medico--legal legal evidence on legal outcomesevidence on legal outcomesevidence on legal outcomesevidence on legal outcomesHighlights factors that create barriers to Highlights factors that create barriers to its use in criminal justice proceedingsits use in criminal justice proceedingsConcludes with salient knowledge gaps Concludes with salient knowledge gaps and research recommendationsand research recommendations

Definition of MedicoDefinition of Medico--legal Evidencelegal Evidencegg

MedicoMedico--legal evidence refers to:legal evidence refers to:d d d d documented documented •• extraextra-- and anoand ano--genital injuriesgenital injuries•• emotional stateemotional state

collected samples and specimens from collected samples and specimens from body or clothing including:body or clothing including:body or clothing, including:body or clothing, including:•• saliva, seminal fluid saliva, seminal fluid •• head hair, pubic hair head hair, pubic hair •• blood, urine blood, urine •• fibres, debris, and soilfibres, debris, and soil

solely for legal purposessolely for legal purposes

Purpose of MedicoPurpose of Medico--legal Evidencelegal EvidencePurpose of MedicoPurpose of Medico legal Evidencelegal Evidence

Used to aid the investigation and prosecution of an Used to aid the investigation and prosecution of an g pg paccused in order to: accused in order to:

••Determine the occurrence of recent sexual Determine the occurrence of recent sexual activity activity

••Identify the assailant Identify the assailant ••Identify the assailant Identify the assailant ••Establish the use of force or resistance Establish the use of force or resistance ••Indicate an inability to consent due to the Indicate an inability to consent due to the yyinfluence of alcohol and drugs or an otherwise influence of alcohol and drugs or an otherwise diminished mental capacity diminished mental capacity

Circumstances of MedicoCircumstances of Medico--legal legal E id C ll tiE id C ll tiEvidence CollectionEvidence Collection

Services are Services are unevenly developedunevenly developed and and implemented across and within regionsimplemented across and within regions

Settings, staff, and protocols Settings, staff, and protocols operate on operate on different modelsdifferent models

Findings: Medico-legal Services (1)

Collection of MedicoCollection of Medico--legal Evidence [1]legal Evidence [1]Collection of MedicoCollection of Medico legal Evidence [1]legal Evidence [1]

Process:Process:

Sexual assault victim/survivorSexual assault victim/survivor

Is not obliged to submit to a medical forensic examination Is not obliged to submit to a medical forensic examination (e.g., Canada) (e.g., Canada) ( g , )( g , )May go to a facility for a medical forensic examination of May go to a facility for a medical forensic examination of her own volition (e.g., parts of France ) or upon referral by her own volition (e.g., parts of France ) or upon referral by the police or another government body (e.g., Iraq)the police or another government body (e.g., Iraq)p g y ( g q)p g y ( g q)


Collection of MedicoCollection of Medico--legal Evidence [2]legal Evidence [2]Collection of MedicoCollection of Medico legal Evidence [2]legal Evidence [2]ProcessProcess (continued):(continued):

Sexual assault victim/survivor mustSexual assault victim/survivor must

Undergo a mandatory medical forensic examination (e.g., Undergo a mandatory medical forensic examination (e.g., the Russian Federation) the Russian Federation) First present to a police station to have the assault First present to a police station to have the assault d t d l t t d/ bt i di l d t d l t t d/ bt i di l documented, complete a report, and/or obtain a medical documented, complete a report, and/or obtain a medical form or sexual assault kit that is then to be taken to the form or sexual assault kit that is then to be taken to the facility where evidence is collected (e.g., Lesotho)facility where evidence is collected (e.g., Lesotho)Have authorization for an examination from law Have authorization for an examination from law Have authorization for an examination from law Have authorization for an examination from law enforcement, prosecution representative or judge (e.g., enforcement, prosecution representative or judge (e.g., certain parts of the Philippines) certain parts of the Philippines)


Collection of MedicoCollection of Medico--legal Evidence [3]legal Evidence [3]Collection of MedicoCollection of Medico legal Evidence [3]legal Evidence [3]Settings:Settings:

HospitalsHospitalsForensic institutesForensic institutesPolice stationsPolice stationsPolice stationsPolice stations

Staff:Staff:Staff:Staff:DoctorsDoctorsPolice SurgeonsPolice SurgeonsggForensic ExaminersForensic ExaminersNursesNursesForensic Nurse ExaminersForensic Nurse Examiners



Protocols:Protocols:

None in place to guide the collection of medicoNone in place to guide the collection of medico--legal evidence in cases of sexual assault (e.g., legal evidence in cases of sexual assault (e.g., Belize)Belize)Developed but not widely implemented (e g Developed but not widely implemented (e g Developed but not widely implemented (e.g., Developed but not widely implemented (e.g., India, South Africa) India, South Africa) Thoroughly institutionalized (e.g., parts of Thoroughly institutionalized (e.g., parts of Canada) Canada)



Protocols Protocols (continued):(continued):( )( )

Commonly include historyCommonly include history--taking, physical taking, physical examination, laboratory investigations, medical examination, laboratory investigations, medical care, and collection of evidencecare, and collection of evidenceSome involve the use of sexual assault kits Some involve the use of sexual assault kits Some involve the use of sexual assault kits, Some involve the use of sexual assault kits, which contain the materials needed to document which contain the materials needed to document and gather medicoand gather medico--legal evidencelegal evidence



Medical Forensic Examination:Medical Forensic Examination:

Examination is usually carried out within Examination is usually carried out within 72 hours of a sexual assault72 hours of a sexual assaultComprises a number of key components Comprises a number of key components including:including:

•• acquiring consent acquiring consent •• taking the medical and sexual assault histories taking the medical and sexual assault histories •• documenting medicodocumenting medico--legal findingslegal findingsgg g gg g•• carrying out treatment guidelinescarrying out treatment guidelines


Processing of MedicoProcessing of Medico--legal Evidencelegal EvidenceProcessing of MedicoProcessing of Medico legal Evidencelegal Evidence

Following collection, specimens airFollowing collection, specimens air--dried, sealed dried, sealed in separate containers to avoid cross in separate containers to avoid cross contamination and labelled, signed and dated by contamination and labelled, signed and dated by , g y, g yperson who gathered themperson who gathered them

Evidence may be stored or frozen while Evidence may be stored or frozen while victim/survivor decides whether to prosecutevictim/survivor decides whether to prosecutevictim/survivor decides whether to prosecutevictim/survivor decides whether to prosecute


Processing of MedicoProcessing of Medico--legal Evidence [2]legal Evidence [2]Processing of MedicoProcessing of Medico legal Evidence [2]legal Evidence [2]

•• Evidence handed over to a Evidence handed over to a law enforcementlaw enforcementofficial who may either take it directly to a official who may either take it directly to a forensic laboratory or store it at the police forensic laboratory or store it at the police station until it is to be analysedstation until it is to be analysedyy

•• Once submitted to a Once submitted to a forensic laboratoryforensic laboratory, the , the evidence is analysed and a report producedevidence is analysed and a report produced

Laboratory findings and documented injuries Laboratory findings and documented injuries •• Laboratory findings and documented injuries, Laboratory findings and documented injuries, together with those who are sanctioned to together with those who are sanctioned to testify to them, may be introduced in testify to them, may be introduced in courtcourt


Legal Outcome Studies Reviewed [1]Legal Outcome Studies Reviewed [1]Legal Outcome Studies Reviewed [1]Legal Outcome Studies Reviewed [1]

Those undertaken specifically to evaluate the Those undertaken specifically to evaluate the p yp yassociation with legal outcome of distinct types of association with legal outcome of distinct types of medicomedico--legal evidence (e.g., anogenital injuries, legal evidence (e.g., anogenital injuries, sperm/semen)sperm/semen)p / )p / )

•• 13 retrospective reviews 13 retrospective reviews C d t d i C d D k Fi l d C d t d i C d D k Fi l d •• Conducted in Canada, Denmark, Finland, Conducted in Canada, Denmark, Finland, Norway, and the United StatesNorway, and the United States

drew on cases of sexual assault reported to drew on cases of sexual assault reported to hospitals and their related police and/or hospitals and their related police and/or prosecution filesprosecution files

Findings: Impact of Medico-legal Evidence on Legal Outcomes (1)


Those intended to evaluate the relationship with Those intended to evaluate the relationship with pplegal outcome of other factors, but which included legal outcome of other factors, but which included either “injury to the victim” or “physical or either “injury to the victim” or “physical or forensic evidence” as variables in their designsforensic evidence” as variables in their designsforensic evidence as variables in their designsforensic evidence as variables in their designs

•• 31 studies 31 studies 31 studies 31 studies •• Conducted in Australia, Canada, United Conducted in Australia, Canada, United

Kingdom, and the United StatesKingdom, and the United States

predominantly published in social science journalspredominantly published in social science journals



Those that have constructed medicoThose that have constructed medico--legal legal ggevidence as a single “yes, no” variable and evidence as a single “yes, no” variable and examined its impact on legal outcome examined its impact on legal outcome

•• 5 descriptive studies 5 descriptive studies •• Conducted in Brazil Canada and South Conducted in Brazil Canada and South •• Conducted in Brazil, Canada, and South Conducted in Brazil, Canada, and South

AfricaAfrica


Summary of Descriptive StudiesSummary of Descriptive StudiesSummary of Descriptive StudiesSummary of Descriptive Studies

MedicoMedico--legal evidence appeared to be of legal evidence appeared to be of i i l i t t th t i i l i t t th t minimal importance to the courts minimal importance to the courts

Positive medicoPositive medico--legal findings were not legal findings were not Positive medicoPositive medico--legal findings were not legal findings were not always necessary to secure a conviction always necessary to secure a conviction


Limitations of the StudieLimitations of the StudiessLimitations of the StudieLimitations of the Studiess

Retrospective reviewsRetrospective reviewsppSingle jurisdictionsSingle jurisdictionsLarge urban centresLarge urban centresSmall sample sizesSmall sample sizesAttrition of casesAttrition of cases

l d d dl d d dIncomplete records and missing dataIncomplete records and missing dataBivariate statisticsBivariate statisticsData is aged (some >than 30 years old)Data is aged (some >than 30 years old)Data is aged (some >than 30 years old)Data is aged (some >than 30 years old)


Relationship to Legal Outcome of Relationship to Legal Outcome of NonNon--medicomedico--legal Factorslegal Factors

In many studies attrition in the processing of In many studies attrition in the processing of In many studies, attrition in the processing of In many studies, attrition in the processing of sexual assault cases was associated with the sexual assault cases was associated with the victim/survivor’s:victim/survivor’s:

•• Age (older)Age (older)•• Socioeconomic status (poorer)Socioeconomic status (poorer)

R t ti ( hi t i hi t )R t ti ( hi t i hi t )•• Reputation (e.g., psychiatric history)Reputation (e.g., psychiatric history)•• BehaviourBehaviour

l ( d k )l ( d k )prior to an assault (e.g., drinking) prior to an assault (e.g., drinking) during an assault (e.g., lack of resistance) during an assault (e.g., lack of resistance) following an assault (e.g., promptness of report) following an assault (e.g., promptness of report)


Sociocultural ContextSociocultural ContextSociocultural ContextSociocultural Context

Male dominance, gender inequality, and antiMale dominance, gender inequality, and anti--woman woman and rapeand rape--supportive attitudes can influence the supportive attitudes can influence the allocation of resources for sexual assault services and, allocation of resources for sexual assault services and, ultimately, the existence, quality and effectiveness of ultimately, the existence, quality and effectiveness of

didi l l idl l idmedicomedico--legal evidencelegal evidenceThese forces may determine the availability of trained These forces may determine the availability of trained staff, adequate facilities for the collection of evidence staff, adequate facilities for the collection of evidence and the effective interagency coordination necessary and the effective interagency coordination necessary and the effective interagency coordination necessary and the effective interagency coordination necessary for its processingfor its processingThey may negatively influence the ways in which They may negatively influence the ways in which medicomedico legal protocols and technologies are legal protocols and technologies are medicomedico--legal protocols and technologies are legal protocols and technologies are constructed, as well as the practices of the constructed, as well as the practices of the professionals responsible for their useprofessionals responsible for their use

Findings: Sociocultural Conditions of the Use of Medico-legal Evidence (1)

Sociocultural Context [2]Sociocultural Context [2]Sociocultural Context [2]Sociocultural Context [2]

There are no formal rules related to corroboration There are no formal rules related to corroboration of a sexual assault victim/survivor’s testimony, of a sexual assault victim/survivor’s testimony, but there is continued demand in legal practice but there is continued demand in legal practice for corroboration based in part on widespread for corroboration based in part on widespread p pp pdistrust of womendistrust of womenStaff are not adequately prepared to collect and Staff are not adequately prepared to collect and testify to medicotestify to medico--legal evidence and specimens legal evidence and specimens testify to medicotestify to medico legal evidence and specimens legal evidence and specimens are mishandled leading to results usually being are mishandled leading to results usually being unreliableunreliablePost sexual assault professionals (e g police Post sexual assault professionals (e g police Post sexual assault professionals (e.g., police, Post sexual assault professionals (e.g., police, prosecutors, judges) attack woman’s character prosecutors, judges) attack woman’s character and use her prior sexual history to discredit her and use her prior sexual history to discredit her (even where clearly irrelevant or prohibited)(even where clearly irrelevant or prohibited)(even where clearly irrelevant or prohibited)(even where clearly irrelevant or prohibited)

Findings: Sociocultural Conditions of the Use of Medico-legal Evidence (2)

Key Gaps in the LiteratureKey Gaps in the LiteratureKey Gaps in the LiteratureKey Gaps in the Literature

Impacts of medico- Uses of medico-plegal evidence:

l

legal evidence:

l k f l bl• no international comparative research

• studies are limited to a f l

• lack of available information from many areas l l k b hfew, mostly

industrialized, nations • much of the research

il bl i

• little is known about the effects of professional practices

available is methodologically flawed

Summary (1)

Recommendations [1]Recommendations [1]Recommendations [1]Recommendations [1]

There is a need for ongoing research focussed on There is a need for ongoing research focussed on g gg gmedicomedico--legal evidence in relation to sexual assault. legal evidence in relation to sexual assault. Questions to be addressed:Questions to be addressed:

Wh t i th i i t f diWh t i th i i t f di l l l l •• What is the minimum amount of medicoWhat is the minimum amount of medico--legal legal evidence necessary to aid in the adjudication of evidence necessary to aid in the adjudication of a case?a case?

•• In which circumstances are particular types of In which circumstances are particular types of medicomedico--legal evidence most valuable?legal evidence most valuable?A th diff b t b f A th diff b t b f •• Are there differences between subgroups of Are there differences between subgroups of individuals with respect to the relationship to individuals with respect to the relationship to legal outcome of medicolegal outcome of medico--legal evidence?legal evidence?gg gg

Summary (2)


Questions to be addressedQuestions to be addressed (continued):(continued):

•• What are the direct influences of sociocultural What are the direct influences of sociocultural factors on the operations of services, the factors on the operations of services, the p ,p ,development of protocols, and the practices of development of protocols, and the practices of sexual assault professionals?sexual assault professionals?

•• Does improved training of sexual assault Does improved training of sexual assault l h h l f dl h h l f d l ll lpersonnel enhance the value of medicopersonnel enhance the value of medico--legal legal

evidence?evidence?•• Do medicoDo medico--legal policies and protocols legal policies and protocols

i th ffi f dii th ffi f di l l l l improve the efficacy of medicoimprove the efficacy of medico--legal legal evidence?evidence?

•• What is the value and meaning of the medical What is the value and meaning of the medical fo ensic e amination fo se al assa lt fo ensic e amination fo se al assa lt forensic examination for sexual assault forensic examination for sexual assault victim/survivors?victim/survivors?

Summary (3)

Recommendations [3]Recommendations [3]Recommendations [3]Recommendations [3]Questions to be addressedQuestions to be addressed (continued):(continued):

•• What are the direct influences of sociocultural What are the direct influences of sociocultural factors on the operations of services, the factors on the operations of services, the d l t f t l d th ti f d l t f t l d th ti f development of protocols and the practices of development of protocols and the practices of sexual assault professionals?sexual assault professionals?

•• Does improved training of sexual assault Does improved training of sexual assault personnel enhance the value of medicopersonnel enhance the value of medico--legal legal evidence?evidence?

•• Do medicoDo medico--legal policies and protocols improve legal policies and protocols improve Do medicoDo medico legal policies and protocols improve legal policies and protocols improve the efficacy of medicothe efficacy of medico--legal evidence?legal evidence?

•• What is the value and meaning of the medical What is the value and meaning of the medical forensic examination for sexual assault forensic examination for sexual assault forensic examination for sexual assault forensic examination for sexual assault victim/survivors?victim/survivors?

Summary (4)


There is a need to further examine viable There is a need to further examine viable alternative measures for enhancing justice for alternative measures for enhancing justice for victim/survivors of sexual assault. Questions to be victim/survivors of sexual assault. Questions to be addressed should include:addressed should include:addressed should include:addressed should include:

•• How might such measures be prioritized in How might such measures be prioritized in How might such measures be prioritized in How might such measures be prioritized in terms of resource allocation vis à vis existing terms of resource allocation vis à vis existing criminal justice and medicocriminal justice and medico--legal practices?legal practices?

Summary (5)

global review of the role of medico-legal evidence … · 2016-04-13 · background high rates of...

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