Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

I want to caution anyone contemplating a school-based SART or SANE program to exercise restraint on the use of forensic evidence in general and rape kits in particular.  Rape kits have caused a tremendous amount of difficulty in "real world" legal proceedings because they often produce prejudicial, highly personal and irrelevant biological information about a victim, which is then used by the accused to muddy the water and shame the victim into silence for fear her sexually active lifestyle or HIV status, etc., will be revealed publicly.  My approach to this issue in "real world" cases, which is embraced in many jurisdictions, is to TAKE evidence, if appropriate, from a victim's body but do NOT test it unless and until a judge rules that a particular test is appropriate for a particular purpose to reveal the answer to a materially relevant question that is legitimately in dispute.  A judge cannot issue an order requiring testing without a full hearing on the matter, at which the victim's due process rights are protected.  In too many jurisdictions, the process is backward in that the testing is done FIRST, and relevancy issues are debated AFTER the fact.  Even a dim defense attorney can construct a nonsensical argument about why the results should be admitted in a proceeding given the nature and location of the vagina as the "crime scene".  

School-based proceedings don't typically use DNA testing, but similar harm can befall victims when irrelevant personal information is gathered during a SANE or SART process - or when forensic examinations are intentionally conducted in such a way as to guarantee the extraction of meaningless and/or harmful information.

It has been my experience that some schools intentionally send victims to certain hospitals for "treatment" because they have a "deal" with certain hospitals that agree quietly to share HIPAA-protected information with school officials - without the victim's knowledge or consent.  One school obtained privileged medical information without a victim's consent - then shared it with the perpetrator's lawyer - who then shared the information with an "expert witness" who made up nutty testimony about the meaning of the information.

The school then got in trouble and tried to fix the problem to avoid being sued for violating the victim's HIPAA rights by having her sign a release, after the fact, without even telling the victim that they had already shared the information unlawfully (though it was obvious in the way the expert wrote his report that he had been provided with HIPAA-protected information because he had to "speculate" about the exact time when a certain test was done in order to make his nutty calculations - and it just so happens his speculation as to the time when the test was done was exactly correct - though there was no reason for him to know the information because it ONLY existed in a HIPAA protected file.  The victim was AT the hospital for something like 7 hours - so there was no chance that he was just a good guesser.)   "Advocates" on campus told the victim she should sign the release, but again, never told her that the file had already been shared and that the release was designed only to insulate the school from liability.

I've seen this misuse of the SANE/SART forensic process in other schools, as well.  And I've seen schools wrongly use the forensic medical process to gather evidence irresponsibly and in a manner that intentionally undermines the victim's interests (e.g., not running a blood or urine test for rape drugs until it is certain the substance has dissipated, and/or taking a vaginal swab and testing it for the presence of OTHER male DNA even when they know the perpetrator's defense will be that the victim consented - which makes other male DNA irrelevant.

SART and SANE programs ask too many probing irrelevant questions of victims - about past medical and sexual activity - and they don't usually obtain meaningful consent before intruding into a victim's protected privacy rights.   Nor is there a process for asking similarly probing questions of the perpetrator.  Which means the defense can use personal information to undermine the victim's credibility unfairly.

SANE and SART teams should be mindful about developing policies of restraint - and NEVER asking a probing irrelevant question about anything form a victim's past and never TESTING evidence - without a specific need.  

The presumption should be that less is more when it comes to private information - and that relevant inquiries be limited to the narrowest time and subject matter parameters.  Including irrelevant personal information can only hurt the victim and distort rather than elucidate the truth.

One important policy to consider is NEVER EVER taking a medical history from a victim.  The "history" page is a gold mine of unfair evidence that the defense then uses to threaten the victim into silence because if she backs down, the personal history stuff will not be revealed in a legal/disciplinary proceeding.

Given that the victim is not allowed access to the perpetrator's file of past violations of school conduct rule under FERPA, and considering that the offender doesn't get sent off for "treatment", the evidence pile literally gets stacked against the victim right out of the box if SANE and SART policies are not carefully constructed to avoid harm to the victim's privacy rights.

Wendy Murphy

New England Law|Boston

617-422-7410