The sexual assault health care examiner, be it a physician, nurse, physician’s assistant, or forensic nurse examiner (FNE), is frequently the first health care practitioner to have contact with the sexual assault victim in the aftermath of the attack. In addition to attending to the emotional needs of someone who is understandably distressed and distraught over a vicious, dehumanizing, and demoralizing event, the health care practitioner is responsible for assessing the extent of injury and providing the necessary treatment and support for the acute injuries and anticipated health hazards. Although the first priority is directed at identifying physical and psychological injury and rendering medically indicated therapy, the practitioner’s responsibilities necessarily extend to the collection of evidence and the accurate recording of the victim’s history, physical findings, and the results of laboratory and radiographic studies. The ability to prosecute the assailant may hinge on the accuracy and precision of assembling the historical data, physical findings, and crucial forensic evidence. Deficient or defective intervention by the practitioner at the preliminary stage of this investigative process can lead to the inability to charge an alleged attacker criminally or the failure to convict a defendant. Similarly, the effective collection of pertinent forensic evidence can potentially exculpate an innocent suspect.

Consequently, the indispensable role of the practitioner after a sexual assault encompasses two distinct duties: (i) the irrevocable legal duty to render reasonable medical care and (ii) a professional duty to gather evidence that will help authorities determine whether a crime has been committed and establish the identity of the perpetrator. Ultimately, the practitioner must be prepared to report the sexual assault examination findings in a professional and unbiased manner to an official fact-finding tribunal. Understanding that the practitioner bears an enormous responsibility to the victim and to the society at large, the practitioner must be intensely vigilant and attentive to detail in handling sexual assault cases to ensure that competent and reliable decisions can be achieved regarding the criminal disposition of cases.

Effective involvement of the health care practitioner in sexual assault cases requires a fundamental understanding of the process and procedure of criminal prosecution. When an individual has allegedly committed a criminal act or is under suspicion for committing a criminal act, the police and prosecutors investigate and possibly bring charges against the suspect. If there is sufficient probable cause to arrest and if there is a viable case, the prosecutor will charge. (In general, prosecutors have the discretion as to whether any charges should be filed against a suspect.) Critical to placing charges is a full understanding of the facts. The police and prosecutors must interview the witnesses and especially the victim to determine exactly what happened. The facts will determine what charges can be lodged. For example, if the perpetrator used a weapon as opposed to threatening the victim verbally, use or possession of a deadly weapon would be an appropriate charge. In a sexual assault case, use of a
deadly weapon qualifies the suspect for being charged with an aggravated sexual assault such as rape in the first degree. A typical penal code states that a person is guilty of rape in the first degree if the person engages in vaginal intercourse with the victim by force or threat of force, without the consent of the victim, and employs a deadly or dangerous weapon, inflicts suffocation or strangulation, or is aided and abetted by others or if the person commits the act during the course of a burglary. To convict the defendant, the prosecution must prove each and every element of any crime on which a defendant is tried. Failure to prove any individual element can result in a defendant being convicted of a lesser included crime or being acquitted altogether. For instance, if the State does not present evidence that a weapon was actually used, the defendant may be convicted only of rape in the second degree. The State’s burden is to prove the accused guilty beyond reasonable doubt.

The gravamen of most sexual assault charges is proving that the victim did not consent. In the absence of clear evidence of physical force, the victim’s physical helplessness, or the victim’s mental defect to show lack of consent, the prosecution’s task becomes much more challenging. Without such probative evidence, the prosecution must rely on the testimony and credibility of the victim, the attendant circumstances of the crime, and the perception of the defendant’s lack of credibility to build a case. In many cases, the forensic evidence collected, observed, and interpreted by qualified health care practitioners is pivotal to the prosecution of a sexual assault case.

The defense attorney attempts to counter or neutralize the prosecution’s case by attacking weaknesses. This is accomplished through cross-examination of the state’s witnesses or by offering contradictory evidence during the defense portion of the trial. One of the defense’s objectives is to demonstrate that the prosecution has failed to present evidence of each element of the crime. The defense attorney may argue that his or her client could not have committed the crime because of an alibi that places the defendant at another location at the time the crime was perpetrated. Alternatively, the defendant may assert that the victim consented.

The evidence presented at the trial may be complex, technical, and beyond the comprehension of the average juror. Therefore, professionals who possess the requisite level of expertise and good communication skills are indispensable in the legal process. The presence of the expert witness helps the jury understand and connect the evidence to make a measured inference that the defendant committed the crime. An expert witness, in contrast to a lay witness, is permitted to express an opinion on relevant issues pertaining to the facts and falling within his or her professional expertise. The expert must be able to render the opinion to a “reasonable degree of medical certainty.”

The lay witness, on the other hand, may testify only to what he or she saw, heard, felt, or smelled. The lay witness must have direct knowledge of the event rather than secondary knowledge. The lay witness is not qualified to express an opinion or speculate about the meaning of certain testimony. However, the lay witness can testify to ordinary observations, such as the statement “the car was going fast.” The expert witness is needed to say how fast the car was going or whether the speed was reasonable and prudent for that particular location.

The sexual assault examiner or health care practitioner is routinely called to testify as to the medical findings. Many jurisdictions have certified FNEs as experts for judicial purposes. In one nationally publicized sexual assault investigation in New York City, evidence was submitted to the grand jury to determine whether the accused perpetrators would be indicted for the crime. The evidence included the testimony of the doctors who examined the victim, the testimony of Federal Bureau of Investigation (FBI) experts who analyzed the forensic evidence gathered from the rape kit, and other physical evidence gathered during the investigation. The grand jury received testimony from two forensic pathologists who had reviewed the FBI reports and the medical reports concerning the victim’s condition. Forensic psychiatrists formulated opinions and testified to the likelihood that a sexual assault was committed, on the basis of a review of the medical records. Using the evidence supplied during that proceeding, the grand jury declined to indict the alleged attackers.

To determine how to treat the patient, the examining health care practitioner asks the victim questions about the attack. The examining practitioner’s testimony as to what the victim related during the examination is technically hearsay, which is generally inadmissible. However, the examiner may be permitted to testify concerning historical information under an exception to the hearsay rule. A treating practitioner may testify as to what the victim/patient said, so long as it is relevant to the treatment of the medical or psychological condition. If the victim told the physician or nurse that she was bitten several times on her back and that her arm was twisted, the physician or nurse may testify to this statement. Generally, the physician is not permitted to testify to statements of identity or culpability. If the victim stated, “John, my friend’s brother, forced me to the ground and assaulted me,”
the portion of the statement that identifies the assailant could possibly be inadmissible. As a practical matter, identification can be elicited through the victim’s direct testimony at trial.

The examining practitioner may testify as to the mental state of the victim upon arrival at the health care facility. The victim’s demeanor may be important in categorizing the response as consistent or not consistent with a traumatic event. Obviously, this assessment is prone to subjectivity and therefore may not be a reliable determinant. The trier of fact must decide what weight to give any observations regarding the mental state of the victim.

The testimony of the practitioner about the examination and laboratory results and the victim’s statements concerning physical force or injury may prompt the jury to decide that the sexual encounter was not consensual. Clearly, any complaints of pain and any corroborative evidence of injury, such as abrasion, bruises, bite marks, lacerations, bleeding, sprains, strains, broken bones, closed head injuries, penetrating trauma, or injury to the genitalia, perineum, or rectum, bolster the probability that the act was not consensual.

In the absence of persuasive physical evidence, the practitioner’s impression of the victim’s demeanor, state of mind, affect, or emotional status during the examination may or may not help the trier of fact to decide whether there was a sexual assault. A tearful, excited, angry, withdrawn, anxious, or distraught patient could have experienced some traumatic event other than a sexual assault. On the other hand, a patient displaying just the opposite demeanor could have been sexually assaulted. Therefore, an attempt to categorize or label a particular response as consistent or inconsistent with a sexual assault is fraught with danger. The sexual assault examiner should be familiar with the spectrum of recognized posttraumatic responses accompanying a sexual assault and should be able to articulate those varied responses in front of the trier of fact.

The medical record should contain a variety of information. A sexual assault victim may be transported to the emergency department or some other health care facility by ambulance or in the automobile of a friend, family member, or stranger; the victim may have walked to the nearest facility. The method of transport should be documented in the medical record. After a preliminary trauma assessment, a comprehensive history is obtained. This history should include the following information:

Physical examination includes a survey of the entire body for evidence of physical injury. Gynecologic and genital examinations of a female are mandatory unless the victim refuses. An anal examination must be included to document the presence or absence of penetration injuries. The increasing use of a colposcope with a camera attachment to assist in gathering forensic evidence is having enormous implications in providing relevant evidence in a prosecution. A Wood’s lamp may be used to identify semen stains on the victim. A swab of the external genitalia, the cervix, and the anal canal may reveal motile sperm.