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

Thank you Kathryn - I'm glad to hear you are dedicated to ethical practice.

In fact, the SANE protocol requires victims to reveal "medical histories" which always provides IRRELEVANT and highly personal - often prejudicial evidence to the perpetrator and his counsel.  I try to teach victims NOT to fill out the history page - or at least to NEVER include personal information such as past sexual and drug/alcohol treatment - past psychiatric treatment - information about sexual behavior and orientation and issues re: whether and to whom a victim talked to about the crime if that conversation was personal/privileged/confidential.  I have long taught this concept of "Victim 'Privacy' Miranda Rights" and I have a warning on the back of my business card that tells victims about personal information and empowers them to say "none of your damn business" if ANYONE asks - including the prosecutor, cop, school official, counselor, etc.

I also URGE victims to use their OWN consent form re forensic exams.  I prepared one that is far more appropriate - and that ALWAYS not only allows but DEMANDS immediate blood and alcohol testing if there is reason to believe the victim lacked capacity to consent and that the victim got to the hospital fast enough to warrant a test because the evidence will still be meaningful.  Testing for drugs/alcohol is FAR more important that taking a swab of a victim's vagina - yet the consent forms for the blood/urine testing presume that testing should NOT be done while the forms for the vaginal swab/DNA test presume the opposite.  This is exactly backward.  Alcohol and drugs undermine capacity to consent, thus can help prove a case even when a victim has no memory - thus is critical to obtain from an evidentiary perspective - while the presence or absence of DNA is usually meaningless because either the perp wore a condom, or didn't ejaculate, or more likely - concedes the event occurred and is defending only on the grounds of consent.  Taking a vaginal swab in a consent defense case is absurd - but because the nature of the defense cannot always be known straight away, there should be a TAKING of the swab  but NO TESTING without a court order after a full hearing at which the victim has a right to be heard.  The judge must then ONLY order a test to answer a specific question - e.g., "is the defendant's DNA present"? 

Gathering up DNA and testing for whether there is "any other DNA present" is very common - utterly irrelevant in almost every case, and very harmful not only to the case but also to the victim's constitutional rights.  I work with cops to help them teach victims to submit their OWN consent forms FORBIDDING ANY testing without a court order, after a hearing that conforms with the victim's due process rights.

This process preserves the evidence while preventing disclosures of irrelevant private sexual material that has nothing to do with the issues in dispute.

Without these protective barriers, irrelevant evidence becomes part of the formal law enforcement file.

I'm glad to hear that some programs are doing it right - but ANY SANE or SART program that requires DNA testing without a due process hearing - or that asks questions about past activities on the "history page" - is causing serious injustice.  I've raised these issues with programs - and proved to them that DNA is almost always harmful - rarely helpful - and the kits cost a fortune so it's also wasting tremendous amounts of money - and I've demonstrated the way personal information destroys cases and harms victims - yet the policy-makers are far more interested in continuing to receive funding than they are in helping advance the cause of justice or helping to protect the victim's privacy rights.

As a result, I now give out DIFFERENT consent forms that inhibit SANEs and SARTs from violating victims' rights gratuitously - and that erect appropriate barriers to needless harm.  The cops I train love using them and tell me it helps insulate the cases from unethical defense tactics.

Wendy Murphy

New England Law|Boston