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).

In 2005, Kelly et al pointed out that the majority of sexual assault incidents are reported to the police within 24 h, but that over half of cases lost at the investigative stage are due to evidential issues such as:

Victim withdrawals occur primarily:

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’.

Consent to forensic medical examination should include the nature of the medical examination, the collection of forensic evidence, that photography may form part of the record of the examination and report, and those details in the medical record may be disclosed to police and the Crown Prosecution Service (CPS) for use in evidence.

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’.

If the woman is a non-police referral, she should be informed that she could pursue a formal complaint subsequently, at which stage additional consent should be sought.

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).

Sexual assault victims may present to an accident and emergency (A&E) department and be seen by the on-call doctor, and whilst resuscitation and immediate clinical management are their prime concern, every A&E department should have a policy for the management of such women and training for first-line staff in the initial care of such vulnerable victims.

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.

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 examination: non-genital/genital;

• recording of the details of the examination;

• retention of relevant items of clothing for forensic examination;

• collection of forensic evidence;

• disclosure of details of the medical record and/or laboratory tests to police/Crown Court/CPS for use in evidence; and

• the taking of photographs which will be used as part of the medical record, may form part of the report based on the examination and may be revealed in subsequent court proceedings.

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).

If the examiner is unable to carry out the internal examination, the reason should be documented, especially if this is due to client distress or consent being withdrawn. Where indicated, a meticulous description of the perianal and anal examination, and proctoscopy findings should be documented.

Forensic sampling

The forensic evidence collected during the examination is used to help to:

• confirm that sexual contact has taken place;

• establish the lack of consent on the part of the victim;

• establish the identity of the assailant;

• estimate the force used; and

• corroborate the complainant’s account.

The FFLM has produced a guideline for good practice regarding collection of forensic specimens which is updated at 6-monthly intervals (Faculty of Forensic and Legal Medicine 2008a). Most SARCs/police forces will have access to a ‘sample reference form’ (Figure 65.3), with tables listing the forensic samples with their corresponding exhibit number, sample description etc. Recent evidence has shown that positive forensic results are achieved in approximately 38% of forensic examinations (McGregor et al 2002).

Figure 65.3 Sample reference forms.

Postexamination arrangements

Communication with the forensic science laboratory

The forensic examiner should complete a forensic specimen form and assist colleagues in the laboratory by providing a brief description of the facts of the case.

Photographs of injuries

Where there is complex skin trauma, photography may act as an adjunct to the description to the findings. It has been claimed that a carefully observed, well-documented description of any injury or group of injuries is worth many photographs (Bunting 1996). Others claim that a photograph can be worth a thousand words if the assailant is claiming consent and the attorney has pictures of the victim with a black eye or worse (Ledray 1993).

Re-examination

This is occasionally indicated if:

• genital injuries are not visible but were anticipated from the account of the incident;

• the examination took place shortly after the incident; or

• there is tenderness on examination.

Referral to counselling services

At best, a follow-up rate of 31% was achieved in a sexual assault follow-up evaluation clinic, despite efforts to encourage female victims to use the clinic (Holmes et al 1996) (Figure 65.4). Our ability to reduce the occurrence of the long-term effects of sexual assault is limited by the low rates of reporting and lack of focused follow-up for those who do report their assault. However, the doctor can significantly enhance the uptake of counselling in the aftermath of an assault.

Figure 65.4 Counselling room.

Non-genital injury

The majority of female victims (40–88%) will have some form of physical injury, although most will be of a minor nature (Bowyer and Dalton 1997, McGregor et al 2002, Palmer et al 2004). Less than 5% of complainants attending SARCs require hospital admission for treatment (Home Office 2005). Where a clinical injury extent score was applied to rate the physical severity of the assault in 113 cases of sexual crime, the injuries were ranked as:

Also, 63.4% of victims had one or more injuries, whereas 35.6% had no injuries. Injuries, predominantly bruises, were located on limbs (32%), face (23%) and torso (7%).

Genital injury

The overall incidence of genital injury is of the order of 20–49% (McGregor et al 2002, Palmer et al 2004, Drocton et al 2008). Genital injury in the absence of non-genital injury is rare (3%) (Palmer et al 2004). Palmer et al also found that risk factors for genital injury were:

Clinical injury extent scoring

McGregor et al devised a clinical injury extent scoring, categorizing injuries as none, mild, moderate or severe, based upon observed genital and extragenital injury (McGregor et al 1999). Criteria for clinical injury scoring were devised; for example, one of the criteria for a moderate injury score was ‘injury or injuries expected to have some impact on function’. The results supported the hypothesis that there is an association between the laying of charges and the presence of documented moderate or severe injury. These findings were supported by a subsequent study where a gradient association was found for genital injury extent score and charge filing, but an injury extent score defined as severe was the only variable significantly associated with conviction.

Genital trauma associated with forced digital penetration has been found in 81% of complainants (Rossman et al 2004). This retrospective study documented the frequency and type of injury in 53 women in whom forced digital penetration was the only reported type of assault. The mean number of genital injuries was 2.4, and 56% of the injuries occurred at four sites: the fossa navicularis, labia minora, cervix and posterior fourchette. The most common types of injury were erythema (34%), superficial tears (29%) and abrasions (21%).

Forensic examiners remain unsure about why some sexual victims display acute injury while others do not (Drocton et al 2008). The potential reasons for these differential findings among female victims were explored for 3356 complainants, of whom 49% displayed AGI. Significant increased risk for AGI was noted with vaginal penetration or attempted penetration using penis, finger or object, and anal-penile penetration. Victims less likely to display AGI were those with a longer postcoital interval and those with increased parity.

Bruises

A bruise is caused by the application of blunt force to the skin that damages small blood vessels beneath the skin surface. The blood then spreads through the tissue spaces. Bruises resolve over a variable period of time. On the whole, blue and black bruises are indicative of recent trauma, but estimating the age of a bruise is a risky undertaking and should be avoided at all costs, especially if one is asked to do so in court.

Factors to remember about bruising

A study into the ageing of bruises determined that the only reliable fact is that bruises with a yellow colour are more than 18 h old, and that the appearance of the other colours is less reliable (Langlois and Gresham 1991).

The following observations should be recorded for each bruise:

The following observations should be recorded for each abrasion, laceration, incision and stab wound:

Abrasions

Abrasions are also known as scratches or grazes, where a scratch is a linear abrasion and a graze is a ‘brush-mark’ abrasion. Abrasions are injuries involving only the outer layers of skin: partial-thickness tears. The skin injury of an abrasion is at the site of the impact with injuring force. Abrasions are usually linear in nature but may be curved due to fingernails or a human bite.

Lacerations

Lacerations, also known as cuts or tears, occur when the injuring blunt force causes full-thickness splitting of the skin in a ragged way. They are often associated with bruising and there may be flaps of skin due to a shearing force being applied.

Incisions

Incisions are caused by sharp cutting weapons and are seen less commonly in the genital injuries of rape and sexual assault, although the genitalia and breasts may be the target of the assailant wielding a knife or similar sharp weapon. The tissues are cleanly divided and the cut is long and less deep than a stab wound.

Stab wounds

A stab wound is a penetrating deep injury. With respect to transvaginal impalement, there is considerable risk of damage to extravaginal sites. Identification of possible extensive injury may be difficult and would require multidisciplinary involvement.

Thermal injury

Thermal injuries are caused by dry heat sources such as chemicals, electricity, friction and lighted cigarettes. Moist heat injuries usually refer to injuries caused by scalds.

Fracture

Fractures need careful recording of site, whether open/closed, and need for fixation or treatment.

Organ rupture

Organ rupture is uncommon, but can be life-threatening if the liver or spleen is affected. It may not be visibly obvious, so needs to be remembered if patients develop signs of shock.

Reasons for absence of genital injury

Reasons for absence of genital injury may include:

The absence of injury must also make the forensic examiner consider and include a comment regarding whether the complainant could have been threatened.

A common tactic of the barrister defending a suspect in a rape trial is not to deny that sexual intercourse between their client and the complainant took place, but rather to claim that she consented to the encounter (Cartwright et al 1986). The defending barrister may also point out to the FP and jury that there are no injuries to the victim’s genitalia, and may ask the doctor how a victim of an alleged rape could escape injury unless, of course, she actually consented to intercourse, highlighting how unimpressive a case may look where there is absence of injury. Cartwright et al found that 75 victims in a review of 440 cases of reported rape showed objective evidence of non-compliance (injuries to non-genital sites) and vaginal penetration (sperm in the vagina), and only 28% of these women had sustained genital injury.

Medical witness statement

The minimum requirement for a doctor’s (professional) statement is in the form of a ‘witness to the fact’ document providing a basic interpretation of the findings alone. The FFLM has recommended that all FPs should have training in the production of a factual statement, and should have ongoing support with writing statements from experienced FPs (Faculty of Forensic and Legal Medicine 2008b).

Timing of statement preparation

It is a wise practice to complete a statement as soon as possible after the examination, and include an interpretation and opinion at the end of the statement, either using lay terms where possible or including a glossary of the medical terminology.

The statement should contain core data such as the examiner’s qualifications, relevant experience and number of cases examined, although this can be considered an optional field for new forensic examiners. This should be followed by a summary of the history of the incident. The findings, both normal and abnormal, must be documented.

Interpretation of findings

Interpretation of the physical findings is one of the most difficult aspects of forensic gynaecology. The legal profession, in particular, has an unrealistic expectation regarding what conclusions can be reached following a forensic medical examination, and the unwary examiner may find themselves accused of bias.

It is important to comment upon whether appearances of the genital area are normal or abnormal.

In general, when considering bruises, one should assess the site of the bruising and how this may affect the appearance of the bruise, the causation and the force of impact that might have caused the bruising. It is helpful to use a scale to describe one’s degree of certainty about the likely cause of the particular injuries.

Conclusions

In preparing the conclusions, the overall causation and consistency need to be addressed so that the following aspects are covered:

The conclusion should end with a sentence indicating that the statement has been ‘based on information given to me to date’. Also, there should be some indication that modification of the conclusions may be necessary if further, relevant information becomes available.

Use of relevant references

The absence of genital injuries should not negate an allegation of sexual assault or rape, but it does make it more difficult to prove to a jury as the presence of genital injury is thought to carry more weight in obtaining a successful conviction. With reported rates of visible genital injury being of the order of 20–49%, it is important that the examining doctor is able to quote published data to support the statement that the absence of genital injury does not imply consent by the complainant, and that the presence of genital injury should not be required to validate an allegation of sexual assault (Cartwright et al 1986, McGregor et al 2002, Palmer et al 2004, Drocton et al 2008).

Final reminders on statement presentation

The forensic examiner should ensure that the statement has a professional appearance, and having checked the document for errors, should also make a check for areas of vulnerability to criticism. In England and Wales, there is a statutory declaration to sign and date the beginning of the statement.

Patterns

Some female survivors of sexual assault sustain more physical injuries than others, and factors influencing the type of injury include the complainant’s skin fragility. Genital trauma is more common in older women (Ramin et al 1992). Where there are multiple bruises, it is essential to undertake a collective assessment of both the bruises and any other surrounding injury in an attempt to reconstruct events. It is also important to recognize particular patterns of injury (e.g. finger-tip bruising consisting of a row or a pair of circular or oval bruises, suggesting the blunt force of gripping associated with resistance in areas such as the upper arms, breasts and legs).

Postmenopausal women

One of the factors influencing the type of injury sustained is the victim’s age. Postmenopausal women only represent a small percentage of the number reporting sexual assault: 2.2% in Dallas County between 1986 and 1991 (Ramin et al 1992). There was no significant difference in the relative proportion of women experiencing non-genital injuries; trauma in general occurred as frequently in the older woman (67%) as in the younger group. This was confirmed in a later study on the effects of age and ethnicity on physical injury from rape (Sommers et al 2006).

Genital trauma is more common: 43% in the postmenopausal group compared with 18% in younger women (Ramin et al 1992). Almost one in five older women had genital lacerations. Other authors have reported an increased frequency of genital injuries in the older victim of sexual assault, and being aged over 40 years has been identified as a risk factor for genital injury (Cartwright et al 1986, Palmer et al 2004). However, no significant association between age and genital injury was found by Sommers et al (2006).

Where there is an increased genital trauma rate, it is presumably due to postmenopausal atrophy causing increased genital tissue susceptibility. It is sad to reflect that older victims tend to live alone, are often robbed and are more likely to be raped by a stranger (Tyra 1993).

Adolescent victims

A pre-existing relationship between a victim and the assailant may explain other elements that distinguish an adolescent victim from her adult counterpart (Muram et al 1995). An assessment of the epidemiology and patterns of AGI in a group of adolescents (13–17 years old) compared with women over 17 years of age showed that adolescents were more likely to be assaulted by an acquaintance or relative (Jones et al 2003).

Weapons and physical force are used less frequently where adolescent victims are involved, but alcohol and drug use is prevalent in adolescent victims (47% of cases) (Muram et al 1995). There are conflicting opinions about the frequency of physical, non-genital injuries in adolescents compared with older victims of sexual assault, but a recent study showed that adolescent victims were less likely to experience non-genital injuries than adults but had a greater frequency of AGI (Jones et al 2003). Common sites of injury in adolescents were posterior, including fossa navicularis, labia minora, fourchette and hymen, whereas for adults, there was a less consistent pattern of AGI, although they did have fewer hymenal injuries and greater injury to the perianal area.

A significant association has been found between race (Black vs White) and genital injury, where Whites were four times as likely as Blacks to have genital injury (Sommers et al 2006). The reasons for this disparity appear to be complex, and the simple explanation of skin colour explaining race/ethnic difference in injury prevalence may suffice for the forensic examiner. However, health disparities may affect the reporting of genital injuries amongst women of colour in the USA.

Mental health

It is important that all the professionals involved with victims of sexual assault recognize that the assault may be followed by rape-related PTSD. This is a debilitating psychiatric condition that can occur in people who experience extremely stressful or traumatic life events, and sexual assault is thought to be one of the most traumatic stressors in life. It is believed that victims attending for forensic examination may already be in the acute phase of PTSD, exhibiting shock, disbelief, anger and possibly memory blocking. The risk of PTSD among female victims of sexual assault is 2.9 times higher compared with women who reported no history of sexual assault, according to a cross-sectional telephone survey of 1769 adult female residents in Virginia (Masho and Ahmed 2007).

When attending a victim of recent sexual assault, the FP may question whether such a woman is able to give ‘informed’ consent to all aspects of the forensic medical examination. It may be appropriate, in this case, to complete the consent for examination and sample collection, and defer the consent to disclosure of the medical details until a later date.

A high background prevalence of mental health problems and deliberate self-harm was found in a study of 121 complainants of sexual violence at The Haven, Whitechapel (Campbell et al 2007). When mental health problems were identified, additional questions were asked. Of the female victims, 8% had learning difficulties, 21% had a past history of deliberate self-harm and 20% had a psychiatric history. Three percent of the female victims required immediate referral to the psychiatric liaison team. One must not forget that vulnerable people are at increased risk following sexual violence; indeed, a high frequency of PTSD is seen in female refugees who allege torture (Asgary et al 2006, Edston and Olsson 2007, Hooberman et al 2007).

Women with disabilities

Very few studies have examined how sexual assault patterns differ for women with disabilities, and whether a woman’s disability status influences the degree and nature of the sexual violence. Study data derived from the initial encounter of 16,672 women survivors of sexual assault in Massachusetts from 1987 to 1995 showed that more than 10% of survivors reported one or more disability (Nannini 2006). Among women with a single disability, a survivor who delayed seeking services for 6 months or more was more likely to have a mental health disability. Women with disabilities have been shown to have four times the odds of experiencing sexual assault in the past year compared with women without disability, according to a study in North Carolina (Martin et al 2006). A retrospective longitudinal study of 6273 non-institutionalized women participating in the National Violence Against Women survey in the USA found that women with disabilities that severely limit activities of daily living are four times more likely to be sexually assaulted than women with no reported disability (Casteel et al 2008).

There are even fewer studies concerning refugees who allege that they have been sexually assaulted as victims of torture. In Sweden, the records of 63 female victims of torture were studied (Edston and Olsson 2007). Rape, often both anal and vaginal, several times and by different persons, was reported by 76% of the women. Physical abuse by use of blunt force was alleged by 95%. In a study in the USA, 89 asylum seekers/torture survivors from 30 countries were assessed in an urban primary care clinic, and 7% of cases alleged that rape was the means of abuse (Asgary et al 2006). The authors point out that physicians evaluating torture survivors should be trained in identification and documentation of torture. This is particularly important where sexual violence as a means of torture is alleged.

Migrant women

In the UK, migrant women may be reluctant to seek help and advice, or approach the criminal justice authorities if they perceive that their immigration status might be put at risk by coming forward. In addition, such women may not be aware of the interpreter services that exist for women seeking help with health-related problems. Worldwide, the higher vulnerability of migrant women to sexual abuse and violence is known to place them at risk of STIs and mental health problems associated with sexual violence. Migrant women face sexual abuse by employers in receiving countries, and from personnel in refugee camps (Carballo et al 1996). Migration also fuels the sex tourism industry in countries as diverse as the Netherlands and Thailand.

Victim in court

The victim may be called to give evidence as a witness at a Crown Court if the attacker pleads ‘not guilty’. In addition to the support of the police officers and counsellors involved, they can also seek the support of the Crown Court Witness Service. Arrangements can be made for the complainant to visit the court before the trial, and information on police and court procedure, liaison with other organizations on behalf of the victim, and assistance in application for compensation from the Criminal Injuries Compensation Board can be provided.

Pretrial conference

The examining doctor will be expected to read through the notes carefully and should expect to be called to a pretrial discussion, in their capacity as a professional or an expert prosecution witness, with the reviewing lawyer, CPS caseworker, police officer and counsel for the prosecution (barrister). It is important that the examining doctor has access to the committal papers (witness statements, transcripts of taped interviews and the defence statement), the complainant’s forensic test results and the defence medical expert’s report, and is able to discuss this opinion with counsel.

Doctor in court

The doctor should be familiar with the courtroom lay-out (in particular, the location of the witness box, judge’s bench and the jury) and the Crown Court etiquette, such as addressing the jury at all times, and should decide ahead of time whether to make a solemn affirmation or swear an oath.

The defence usually asks for an independent medical expert report and they will have access to copy statements from the complainant, the examining doctor and the defendant, and transcripts of interviews. The defence may also request the contemporaneous medical notes.

Examination-in-chief

The examining doctor may be called to court as a professional witness to help the court to establish the facts. The purpose of the examination-in-chief is for the FP to make their evidence clear to the judge and jury. The reviewing barrister establishes the professional witness’s name, qualifications and expertise, and then asks for confirmation of the details of the statement. Addressing the jury, the doctor will be asked by the counsel for the prosecution (reviewing barrister) to describe what was found at the time of the examination. The doctor is usually asked to give an opinion regarding the possible causation for the findings.

Cross-examination

Counsel for the defence (opposing barrister) then conducts the cross-examination of the professional witness, asking questions to probe particular issues in the professional witnes’s statement in order to identify any contentious issues of fact or opinion. The defence barrister’s role is to draw the professional witness’s attention to any deficiencies in the evidence that will favour their client.

Re-examination

When cross-examination is complete, the prosecuting barrister has the opportunity to re-examine, clarifying any issues raised. No fresh material can be raised at this point. The judge, too, may wish to ask further questions or summarize what has been said.

Expert witnesses in sexual assault

Medical evidence is an important factor in the prosecution of rape offences, but it is felt that its evidential worth is not always properly understood by the prosecution. ‘It is vital that the quality of the expert evidence relied upon to support the investigation and prosecution of rape is sound. If it is flawed then challenge by the Defence is inevitable’ (H.M. Crown Prosecution Service Inspectorate 2007). The FFLM believes that expert evidence should only be sought from FPs who have gained a postgraduate qualification in clinical forensic medicine.

The GMC in ‘Acting as an Expert Witness’ emphasizes the importance of ‘understanding and adhering to the laws and codes of practice that affect your work as an expert witness. In particular, you should make sure that you understand:

Expert witness statement

The concept of a two-stage report in a single contact case of sexual assault/rape has been proposed, and the philosophy of such an approach is to improve the successful conviction rate and to provide a structure that is supportive to relatively inexperienced forensic examiners. The initial statement made by the examining doctor who is a professional witness is a factual account of the findings, and for those cases likely to proceed to court, a second ‘expert’ statement might be commissioned. The initial forensic examiner might wish to end their initial conclusion with the following comment: ‘Should it appear likely that this case would proceed to court, a second, more detailed statement will be required. Either:

The FFLM recommend that all FPs should annotate their professional statements with ‘this is a professional witness statement of fact. I am able/unable to provide expert opinion evidence in relation to this matter/and would be happy to do so on supply of all relevant documents’ (Faculty of Forensic and Legal Medicine 2008b).

As an expert, the doctor’s legal position is one of an advisor to the prosecution on matters which are outside the experience of the general public. The expert should have access to the fullest possible picture in order to give the best advice and opinion. Accordingly, the expert should have sight of all relevant statements, a record of the defendant’s interview, relevant medical records and the results of the scientific tests. An expert should prepare their statement based upon their analysis of the case, and provide an opinion with the assistance of the examining doctor.

It is recognized that an important factor in the development of expertise is the building of case experience, and so within the REACH organization, it has been established that an ‘expert’ forensic examiner is one who has examined 20 rape/sexual assault cases and has been actively involved as a FP for at least 2 years. In addition, the expert will have undertaken appropriate training and be an ‘accredited’ FP. The term ‘accredited FP’ implies that the doctor is willing and able to provide an expert statement. An ‘accredited FP’ is under no obligation and the provision of an expert opinion is optional to those experienced enough to do so. Such a two-tier system may prove costly, but with UK conviction rates running at approximately 6.5%, this novel approach may assist the CPS in their assessment of the strength of a particular case (McGregor et al 2002).