CHAPTER 65 Forensic gynaecology
Introduction
There seems to be an escalating epidemic of rape globally, and it is known that the majority of sexual assaults are not reported to the police, and domestic or spousal rape is even less commonly reported. Sexual assault is not only a serious criminal justice problem but is also a major public health issue. In the UK, ‘intimate violence’ is a collective term used for partner abuse, family abuse and sexual assault, with ‘sexual assault’ being defined as indecent exposure, sexual threats and unwanted touching (‘less serious’), rape or assault by penetration including attempts (’serious’) by any person including a partner or family member (Roe 2008). Annual figures relating to crime in England and Wales are published as the Home Office Statistical Bulletin, reflecting not only the police recorded crime but also findings from the British Crime Survey (BCS) (Kershaw et al 2008). The BCS is a large victimization survey of approximately 47,000 adults living in private houses in England and Wales. Based on the 2006/07 BCS self-completion module on intimate violence, approximately 3% of women and 1% of men had experienced a sexual assault (including attempts) in the previous 12 months. The majority of these were less serious sexual assaults. A significant minority (40%) of victims of serious sexual assault had not told anyone about their most recent experience, with only 11% informing the police. A further worrying statistic is that for victims of serious sexual assault, 37% were repeat victims. In a three-city comparative study of client violence against prostitutes working from street and off-street locations, 28% of women involved in street-based prostitution reported attempted rape (Barnard et al 2002).
Most rape allegations do not proceed to court; in 1982–1985, 20% of reported cases went to court in Oslo (Bang 1993). In the UK, the conviction rate for all reported cases is currently between 5.7% and 6.5% (Dyer 2008, Williams 2009). The Home Office figures suggest that actual numbers of convictions for rape are increasing year on year, but the increase in convictions is not keeping pace with the increased reporting, thus there is a high level of attrition or case drop-out. Victims who decline to complete the initial investigative process are more likely to do this in areas where there is no sexual assault referral centre (SARC) (Kelly et al 2005). SARCs are widely regarded as the ideal environment for quality forensic examination, ensuring that the victim has access to other services such as sexual health and professional counsellors.
Legal aspects
Under the UK Sexual Offences Act (SOA) 2003, a person can legally consent to sexual activity if he or she is aged 16 years or older. The SOA 2003 covers over 50 sexual offences, and sexual assault is defined as a non-consensual sexual offence, with consent being defined as having the freedom and capacity to choose.
The SOA 2003 was a significant overhaul of the UK law that dealt with sexual violence, and there are now new offences such as the offence of rape to include oral and anal penetration with a penis, and assault by penetration; penetration may be by part of the defendant’s body but not the penis, or penetration with an object (Rights of Women 2008).
Medical practitioners need to be aware of the legal context in which they gather evidence, and the forensic examination has a dual purpose: firstly, to address the immediate needs and concerns of women; and secondly, the justice system’s need for the documentation of physical findings, the rigorous collection and preservation of evidence, an interpretation of the findings, and provision of expert opinion in legal proceedings (Kelly and Regan 2003).
Her Majesty’s Government have indicated that they have strengthened the capacity of specialist rape prosecutors and rape coordinators to ensure that the best case is built, and expanded special measures to make it easier for vulnerable victims to give evidence (H.M. Government 2007). Indeed, the Youth Justice and Criminal Evidence Act 1999 legislation gives vulnerable and intimidated witnesses the opportunity to give evidence from behind screens, by video link or for the court to be cleared.
Reasons for failure to report sexual assault
The most important barriers to reporting rape and sexual assault are:
Attrition
Attrition in sexual offences cases refers to cases dropping out from the time of initial complaint to the trial. There is an increasing justice gap for victims as the increasing number of convictions for rape is not keeping pace with the increased reporting (H.M. Crown Prosecution Service Inspectorate 2007). Attrition during investigations begins early. Two significant factors were identified by the review of the handling of investigations by the police and Crown Prosecution Service Inspectorate, one of which is the decision by the victim not to complete the initial process. The other factor was the decision to withdraw support for the investigation or prosecution (H.M. Crown Prosecution Service Inspectorate 2007).
Victim withdrawals occur primarily:
Sexual Assault Referral Centres
In early 2009, there were 24 SARCs in England and Wales, the main client group being complainants of recent sexual assault and where the victim has access to a range of agencies including health, the services of counsellors and trained volunteers (H.M. Crown Prosecution Service Inspectorate 2007). The UK Home Office has indicated that SARCs should have the infrastructure to support ongoing victim care, and there should be adequate training and development and quality assurance. There should also be evidence of operational and management policies and procedures (Home Office 2005). It is important that despite the need for cleanliness in the examination room, there are separate interview rooms with a calming and relaxing feel about them (Kelly and Regan 2003).
The services that SARCs provide include:
The clinical requirements of the SARC include:
Consenting to a medical and forensic examination
In achieving consent for a forensic examination, it is important to remember the principles of confidentiality. The General Medical Council (GMC) indicate that ‘Patients have a right to expect that information about them will be held in confidence by their doctors’, accepting that doctors may have contractual obligations to third parties, such as in their work as police surgeons, and in such circumstances, disclosure may be expected (General Medical Council 2006). In such circumstances, the GMC recommends that the doctor is ‘satisfied that the patient has been told at the earliest opportunity about the purpose of the examination and/or disclosure, the extent of the information to be disclosed and the fact that relevant information cannot be concealed or withheld’.
The woman should also be made aware that the examination can be discontinued at any stage if she so wishes. The stage of the examination reached and the time at which she decides against further examination should be recorded.
The complainant may agree to a ‘qualified consent’ (i.e. to the release of information to the prosecution without allowing scrutiny by the defence). If she does not consent to release of the medical details, the examiner may be ordered to disclose information by a judge, in which case the forensic physician (FP) should only disclose information relevant to the request for disclosure. In the ‘Disclosures to courts or in connection with litigation’ section of the GMC document ‘Confidentiality: Protecting and Providing Information’, it is stated ‘You should object to the judge or the presiding officer if attempts are made to compel you to disclose what appear to you to be irrelevant matters’ (General Medical Council 2004). The section continues, ‘You must not disclose personal information to a third party such as a solicitor, police officer or officer of a court without the patient’s express consent’.
Examination of the complainant of sexual assault
Forensic examination is only the first part of the immediate health-based response, the key elements of which include:
Forensic examination can provide relevant evidence up to 72 h after an assault, but can even be useful after that time (e.g. if a woman is bleeding or in pain, or if she has been subjected to a serious level of physical violence).
The forensic examination may provide vital evidence that identifies the assailant and/or supports the complainant’s account should the case come to court. Not only does the forensic examination itself increase the likelihood of legal action, but having a forensic examination doubles the likelihood of prosecution (McGregor et al 2002, Kelly and Regan 2003).
Who should undertake the examination?
In ideal circumstances, the victim of sexual assault should be allowed to choose the gender of the examining doctor. In the 1980s, the gender of the examining physician was not always felt to be a factor affecting the victim’s response to the medical examination (Hockbaum 1987), but recent evidence shows that most victims (male and female) prefer female staff; 43.5% of victims said that they would not continue the forensic examination if the doctor was male (Chowdhury-Hawkins et al 2008).
Training in sexual assault examination
Few doctors have received formal training in the principles of clinical forensic medicine.
To ensure optimal care for the victims of sexual assault, a coordinated multidisciplinary approach should be made to tackle the theoretical and practical training issues. Local and national programmes have been developed at all levels, from specialist registrars through to continuing medical education of those actively involved in rape examination. Subspecialist gynaecology trainees in sexual and reproductive health are expected to compete the forensic and domestic violence competencies module as part of their subspecialty training, which emphasizes the importance of preserving evidence and maintaining the evidence chain whilst providing appropriate sexual and reproductive health care for the complainants of sexual assault (Royal College of Obstetricians and Gynaecologists 2009).
One area of training that is especially valuable is court witness skills, and it is vitally important to maintain one’s skills in this field through continuing professional development programmes in forensic gynaecology.
Role of the police officer
The police officer has an important role in the rape victim’s experience and decision to further pursue legal prosecution. Specially trained police officers not only gather evidence but also have a unique role in liaising with victims of sexual assault, offering advice and information about the criminal justice process as well as taking the formal, detailed statement. In addition, the officer accompanies the complainant to the examination centre, ensuring that she takes a change of clothes with her. The police officer is responsible for the ‘Early Evidence Kit’ collection of first (timed) urine sample for urine toxicology; it is particularly valuable where there is likely to be a delay before the medical examination. Where an oral sex allegation has been made, the police officer will ask the woman to use a mouth rinse as this is known to be more efficient at recovering semen from the oral cavity. Other early evidence samples include used sanitary wear and toothbrush where oral sex is being alleged and the complainant has cleaned her teeth.
Prior to the doctor taking a history of the assault, the officer provides a summary of the allegation for the doctor. During the examination, the officer may act as a chaperone for the examining doctor and assist in a discreet manner, ensuring that each forensic sample is correctly labelled and sealed. The forensic samples are then sent to a central submissions unit for later dispatch to the forensic science laboratory.
The examining doctor
The experienced clinician will realize that pre-existing diseases, mental health issues and previous trauma can affect the interpretation of the forensic examination findings. It is important to take an accurate account of the event to ensure that an appropriate examination is undertaken and that the collection of forensic evidence is complete. The use of a record of examination with checklists and body diagrams to illustrate the findings provides invaluable assistance to the examining doctor, who is not infrequently called to a complainant in the middle of the night.
The examining doctor must be objective and non-judgemental, and must avoid giving even the smallest cues of suspicion or disbelief which may heighten the victim’s anxiety and emotional trauma, and cause a spiralling decline as her guilt and shame increase and her story is shaken (Dupré et al 1993).
Forensic examination is time-consuming and often lasts in excess of 2 h. A speedy response from the forensic examiner is, however, essential for evidential purposes and victim comfort. The importance of examination within 24 h was emphasized in a study on the outcome of sexual assault victims who pursue legal action (Wiley et al 2003). The characteristics positively associated with a legal outcome included:
Cross-contamination is a major concern now that DNA can be detected in smaller and smaller quantities, and SARCs should have policies in place for cleansing of the medical suite as contaminated samples could have a significant impact on the investigation of the offence and might even result in the investigation being abandoned. FPs should have their DNA added to the police staff elimination database so that checks can be made if a cross-contamination issue arises.
The Record of Forensic Examination
Documentation
The record of the forensic examination should be seen as a confidential aide memoire for the clinician, and should contain the following sections.
Complainant and SARC personnel information
Consent
Details of consent to forensic medical examination include:
Medical details
It is the clinician’s responsibility to obtain a pertinent medical history, remembering that pre-existing conditions may affect interpretation, such as scars from surgery.
The clinician should enquire about general health and current medical problems, current or recent genital symptoms, bladder or bowel symptoms, and relevant past medical history. Relevant obstetric details should include her parity and mode of delivery. Medication details should be sought, including prescribed and over-the-counter drugs, together with details of street drugs if this is thought to be relevant, as well as social and employment information.
It is essential to gather information about the last menstrual period, time interval since the last sexual intercourse if this is within 14 days, condom usage and any other contraception.
Account of the event
This is usually in the form of an account of events from the complainant and the police officer taking details of the sequence of events before, during and after the incident. Such an account allows the doctor to adapt the standard forensic examination according to the circumstances of the assault. The complainant may, however, be unable to recall the details of the assault, possibly due to the influence of alcohol/drugs at the time of the assault or subsequently. The victim may be naturally reticent, as in the elderly victim, or already suffering ‘memory block’ associated with rape-related post-traumatic stress disorder (PTSD). Hence it is safer practice to complete the full forensic sampling at this time, usually the only opportunity afforded to the doctor to collect evidence. Loss of evidence may be caused by a delay in presentation, so particular attention should be paid to the time interval since the incident.
Details of the complainant’s actions taken since the incident should be recorded, such as specific details of genital cleansing and change of sanitary protection.
General medical examination
The details of the complainant’s general appearance should be documented (e.g. build/body mass index, hygiene, demeanor, mood and details of any disability). In addition, it is important to comment upon her reaction to the examination. A sexual examination kit with all necessary equipment should be to hand. For complex injuries, it is very important to request the assistance of a female police photographer.
There are a number of key sites where injuries are most likely to be found during the examination of the victim of sexual assault (e.g. thighs, neck, inner aspect of upper arms and face). It is important that the medical record should contain a reference to any area that is omitted. All injuries should be drawn on body diagrams with corresponding measurements and description, each injury being numbered so that it can be cross-referenced in the statement. Each body diagram used should include a statement to say that the injuries are not drawn to scale.
The Faculty of Forensic and Legal Medicine (FFLM) has reminded forensic examiners about the importance of recording and measuring injuries caused by teeth, and that a full description and overall dimensions should be documented (Rowlinson et al 2008).
The severely injured patient
The medical needs of the victim must take priority over the need to achieve forensic samples, and urgent medical advice should be sought, where necessary, in an appropriately equipped setting (e.g. an A&E department). The reason for delay in undertaking the forensic examination should be carefully documented in the medical record. The sexual examination kit can be collected from the SARC for use in a hospital ward or outreach facility once the complainant’s condition is deemed stable and she is willing and able to consent to forensic examination.
Genital examination
The genital examination should begin with a description of the external genital appearance and the presence of any anatomical variation or disease process. There should be a careful documentation of any injuries, using a standardized labelled diagram to record such findings. It can be helpful to use the analogy of a clock face to describe the site of an injury where the 12 o’clock position is anterior. The details of the internal examination (speculum and digital) should be documented next, describing the site and nature of any injuries, with an estimate of the dimensions and the nature of any discharge, blood or fluids seen.
Colposcopic examination
Colposcopic examination is known to increase the positive genital findings compared with inspection of the genitalia. A study of 200 cases of sexual assault examined with a colposcope revealed positive findings in 32% on inspection; however, the positive findings increased to 87% with colposcopic examination (Sommers 2006). Where forced digital penetration is alleged, colposcopy has been found to be particularly useful (Rossman et al 2004).
Questions have been raised regarding why photocolposcopic examination of AGI in a sexually assaulted child is considered the ‘gold standard’ of examination, yet gross visualization is the standard procedure in adult examination (Brennan 2006). A possible explanation is that colposcopy is seen as an invasive procedure which is ethically unacceptable.
The significance of some of the genital findings during the colposcopic examination remains controversial, especially when images are interpreted by inexperienced clinicians (Templeton and Williams 2006).
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