|Clinical Management of Survivors of Rape - A Guide to the Development of Protocols for Use in Refugee and Internally Displaced Person Situations (United Nations High Commissioner for Refugees (UNHCR) / Alto Comisionado de Naciones Unidas para los Refugiados (ACNUR) - WHO - OMS, 2001, 46 p.)|
The main purpose of the examination is to determine what medical care should be provided. However, forensic evidence may also be collected to help the survivor pursue legal redress.
The survivor may choose not to have evidence collected. Respect her choice.
Good to know before you develop your protocol
Different countries and locations have different legal requirements and different facilities (laboratories, refrigeration, etc.) for performing tests. National and local resources and policies determine what evidence should be collected. Do not collect evidence that cannot be processed.
In some countries, the medical doctor may be legally obliged to give an opinion on the physical findings. Find out what the role of the health care provider is in reporting medical findings in a court of law. Ask a legal expert to write a short briefing about the local court proceedings in cases of rape and what to expect to be asked when giving testimony in court.
Reasons for collecting evidence
- To confirm recent sexual contact.
- To show that force or coercion was used.
- To corroborate the survivor's story.
- Possibly, to identify the assailant.
Collect evidence as soon as possible after the incident (within 72 hours)
Documenting injuries and collecting samples, such as blood, hair, saliva and sperm, within 72 hours of the incident, may help to support the survivor's story and might help identify the aggressor(s). If the person presents more than 72 hours after the rape, the amount and type of evidence that can be collected will depend on the situation.
Documenting the case
- Record the interview and your findings at the examination in a clear, complete, objective, non-judgemental way.
- Completely assess and document the physical and emotional state of the survivor.
- Record precisely important statements made by her, such as threats made by the assailant. Do not be afraid to include the name of the assailant, but use qualifying statements, such as "patient states" or "patient reports".
- Avoid the use of the term "alleged", as it can be interpreted as meaning that the survivor exaggerated or lied.
- Note down exactly which samples you take.
Samples that can be collected as evidence
- Injury evidence: physical and/or genital trauma is proof of force and should be documented.
- Clothing: torn or stained clothing is useful to prove force was used.
- Foreign material (soil, leaves, grass) on clothes or body or in hair may corroborate the survivor's story.
- Hair: foreign hairs may be found on the survivor's clothes or body. Pubic and head hair from the survivor may be plucked or cut for comparison.
- Sperm and seminal fluid: specimens may be taken from the vagina, anus or oral cavity, if ejaculation took place in these locations, to look for the presence of sperm and for prostatic acid phosphatase analysis.
- DNA analysis can be done on material found on the survivor's body or at the place of aggression, which might be soiled with blood, sperm, saliva or other biological material from the assailant (e.g., clothing, sanitary pads, handkerchiefs, condoms), as well as on swab samples from bite marks, semen stains, and involved orifices, and on fingernail cuttings and scrapings. In this case blood from the survivor must be drawn to allow her DNA to be distinguished from foreign DNA found.
- Blood or urine for toxicology testing (if the survivor was drugged).
Forensic evidence should be collected during the medical examination. It is necessary to obtain the consent of the survivor for the collection of evidence. Work systematically according to the medical examination form (see Annex 3). Explain everything you do and why you are doing it.
Inspection of the body
- Examine the survivor's clothing under a good light source before she undresses. Collect any foreign debris on clothes and skin or in the hair (soil, leaves, grass, foreign hairs). Ask the person to undress while standing on a sheet of paper to collect any debris that falls. Do not ask her to uncover fully. Examine the upper half of her body first, then the lower half, or provide a gown for her to cover herself. Collect torn and stained items of clothing, only if you can give her replacement clothes.
- Document all injuries (see Step 5).
- Collect samples for DNA analysis from all places where there could be saliva (where the attacker licked or kissed or bit her) or semen on the skin, with the aid of a cotton-tipped swab lightly moistened with sterile water.
- The survivor's pubic hair may be combed for foreign hairs.
- If ejaculation took place in the mouth, take samples and swab the oral cavity, for direct examination for sperm, and for DNA and acid phosphatase analysis.
- Take a blood and urine sample if indicated.
Inspection of the anus, perineum and vulva
Inspect and collect samples for DNA analysis from the skin around the anus, perineum and vulva using cotton-tipped swabs moistened with sterile water.
Examination of the vagina and rectum
Depending on the site of penetration, examine the vagina and/or the rectum.
- Lubricate a speculum with normal saline or clean water (other lubricants may interfere with forensic analysis).
- Collect some of the fluid in the posterior fornix for examination for sperm.
- Take specimens of the posterior fornix and the endocervical canal for DNA analysis, using cotton-tipped swabs. Let them dry at room temperature.
- Collect separate samples from the cervix and the vagina. These can be analysed for acid phosphatase.
- Obtain samples from the rectum, if indicated, for examination for sperm, and for DNA and acid phosphatase analysis.
Direct examination for sperm
Put a drop of the fluid collected on a slide, if necessary with a drop of normal saline (wet-mount), and examine it for sperm under a microscope. Note the mobility of any sperm. Smear the leftover fluid on a second slide and air-dry both slides for further examination at a later stage.
Screening for STIs
Tests for sexually transmitted infections are usually not used as forensic evidence. A pre-existing STI could be used against the survivor in court.
In some settings screening for gonorrhoea, chlamydia, syphilis and HIV is done for children who have a history of sexual abuse (see "Care for child survivors", pages 25-27).
Maintaining the chain of evidence
It is important to maintain the chain of evidence at all times, to ensure that the evidence will be admissible in court. This means that the evidence is collected, labelled, stored and transported properly. Documentation must include a signature of everyone who has possession of the evidence at any time, from the individual who collects it to the one who takes it to the courtroom, to prevent any possibility of tampering.
If it is not possible to take the samples immediately to a laboratory, precautions must be taken:
- All clothing, cloth, swabs, gauze and other objects to be analysed need to be well dried at room temperature and packed in paper (not plastic) bags. Samples can be tested for DNA many years after the incident, provided the material is well dried.
- Blood and urine samples can be stored in the refrigerator for 5 days. To keep the samples longer they need to be stored in a freezer. Follow the instructions of the local laboratory.
- All samples should be clearly labelled with a confidential identifying code (not the name or initials of the survivor), date, time and type of sample (what it is, from where it was taken), and put in a container
- Seal the bag or container with paper tape across the closure. Write the identifying code and the date and sign your initials across the tape.
In the adapted protocol, clearly write down the laboratory's instructions for collection, storage and transport of samples.
Evidence should only be released to the authorities if the survivor decides to proceed with a case.
The survivor may consent to have evidence collected but not to have the evidence released to the authorities at the time of the examination. In this case, advise her that the evidence will be kept in a safe, locked, secure space in the health centre for one month before it is destroyed. If she changes her mind during this period, she can advise the authorities where to collect the evidence.
Reporting medical findings in a court of law
If the survivor wishes to pursue legal redress and the case comes to trial, the health worker who examines her after the incident may be asked to report on the findings in a court of law. Only a small percentage of cases actually go to trial. Many health workers may be anxious about appearing in court or feel that they have not enough time to do this. Nevertheless, providing such evidence is an extension of their role in caring for the survivor.
In cases of rape, the prosecutor (not the health care provider) must prove three things:3
1 Some penetration, however slight, of the vagina or anus by a penis or other object, or penetration of the mouth by a penis.
2 That penetration occurred without the consent of the person.
3 The identity of the perpetrator.
3 Brown, W.A. Obstacles to women accessing forensic medical exams in cases of sexual violence. Unpublished background paper to the Consultation on the Health Sector Response to Sexual Violence, WHO Headquarters, Departments of Injuries and Violence Prevention and Gender and Women's Health, Geneva, June 2001.
In most settings the health care provider is expected to give evidence as a factual witness (that means reiterating the findings as he or she recorded them), not as an expert witness.
Meet with the prosecutor prior to the court session to prepare your testimony and obtain information about the significant issues involved in the case.
Conduct yourself professionally and confidently in the courtroom:
- Dress appropriately.
- Speak clearly and slowly, and make eye contact with whomever you are speaking to.
- Avoid using medical terms.
- Answer questions as thoroughly and professionally as possible.
- If you do not know the answer to a question, say so. Do not make an answer up and do not testify about matters that are outside your area of expertise.
- Ask for clarification of questions that you do not understand. Do not try to guess the meaning of questions.
The notes written during the initial interview and examination are the mainstay of the findings to be reported. It is difficult to remember things that are not written down. This underscores the need to record all statements, procedures and actions in sufficient detail, accurately, completely and legibly. This is the best preparation for an appearance in court.