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

Dear colleagues;

There are many reasons to criticize policies on medical exams as well
as the overall forensic approach to sexual assault investigations.
Among other things, 90% of college based sexual assaults involve the
defense of "consent," which means a forensic examination could uncover
semen from three men and a goat and the evidence would do nothing to
elucidate the truth on the only issue legitimately in dispute.

Even worse, forensic efforts often involve the wrongful disclosure of
irrelevant personal information related to virginity, STDs - medical
history, etc., which serve to deter victims from reporting the crime
and participating in any legal or school-based process simply because
they don't want constitutionally-protected information to be divulged
as a "cost" of seeking redress/justice.

It is far more important to investigate the PERPETRATOR'S background,
actions, emails, texts and behavior at the time of the incident (in
terms of the perpetrator having access to drugs or the components of
drugs - which means SEARCHING his dorm room or apartment and computer
searches, etc.) because we know from David Lisak's work that most
campus offenders commit multiple offenses AND are predatory in nature
(i.e., they are opportunistic and we know what kinds of circumstances
they exploit).  Victims should be insulated from gratuitous privacy
violations and useless if not harmful forensic examinations, and
schools should focus instead on gathering centralized files on accused
offenders.  Liability risks will go down as will incidence rates if
schools focus more on identifying high risk perpetrators and less on
the details of a victim's private body parts.

Forensic examinations are hyped as helpful but in 25 years, I can think
of only one case where a forensic examination in a consent-defense case
made a difference - and it was only a minor difference.  A forensic
professional who did rape kit testing in Massachusetts told our SANE
Board that she obtained relevant evidence less than 10% of the time and
that 90% of the kits were a waste of money.  She was quickly silenced
but she got her point across.  Advocacy groups and related programs
make a lot of money from rape kit testing because government funding
incentivizes forensic exams.

Consent is not proved or disproved by information uncovered in a rape
kit, which is why hundreds of thousands of them are stacked up around
the country. It isn't that states lack sufficient funds to conduct
testing, it's that the kits contain completely irrelevant information
because in 90% of the cases, the victims KNOW their attacker - which
means DNA tests aren't needed to solve the crime.  When the defense is
"consent" none of the evidence in the kit matters. But perpetrators and
their lawyers LOVE gathering and SAVING the kits because they know that
many kits will contain DNA from a victim's OTHER consensual sex
partners, and they will use the unique nature of the "crime scene" to
argue that "anything in there" is fair game.  It isn't. And it not only
violates common sense but also destroys rape-shield laws and cause
constitutional harm to victims' privacy rights under Lawrence v. Texas.

If cops or forensic professionals gathered the body fluids of suspected
criminals and kept the test kits for years and years, the ACLU would go
crazy and demand that the kits be destroyed to prevent against the
government "storing" such highly personal identifying biological
material. But because the value of rape kit testing has been the
subject of intense propaganda campaigns - the public is unaware of how
harmful forensic testing can be.

I'm not opposed to all testing, but I'd prioritize kits where offenders
are unknown to victims or where the suspect claims there was no sexual
activity (though studies show that 50% of rapists leave NO DNA at the
"crime scene" so we also have to be careful not to create and indulge
unreasonable expectations).  The approach I teach is that while it may
be appropriate to TAKE samples as soon as possible after an incident,
there should be NO testing done unless and until a decision is made to
test a certain bit of biological material to answer a particular
question. For example, it can be ordered that a test be done to
"include or exclude the accused suspect."  No information will be
divulged as to whether any OTHER person's DNA is found unless and until
it becomes relevant to conduct that particular test, but the
presumption should always be that NO tests are done until someone
proves that a particular test to answer a particular question is
necessary.

This is not the approach to take when the issue involves an assessment
of whether a victim was drugged or otherwise incapacitated as this
information is HIGHLY relevant to a fair resolution of whether a victim
had the capacity to give knowing, intelligent and voluntary consent.
And because drugs and alcohol dissipate quickly, the testing for drugs
and alcohol should be done immediately. Rape kits can wait because
semen can last for days, if not longer, and a victim should be given as
much time as possible before someone ELSE intrudes into her body -
causing retraumatization, etc.  Test for drugs and alcohol FIRST.

Injuries are important, too; far more important than the presence of
semen, though the value of such evidence is questionable.

Because of the effects of mainstream porn and the increasingly violent
activities portrayed as "normal," even the discovery of injuries isn't
necessarily helpful.  Twenty five years ago when I was prosecuting sex
crimes cases, it was easy to win a case with injuries because juries
readily believed that no person would consent to behavior that left
them bleeding.  These days, the defense simply argues "she liked it
rough," and because a vast majority of mainstream porn involves
roughness (and worse) this usually false claim is perceived as at least
plausible.

Maybe most importantly, it is critical to remember that many forensic
facilities work a bit too closely with school officials in terms of
helping to thwart the fair treatment of victims. For example, in one
recent case at the University of Virginia, a victim who suffered
multiple vaginal injuries during a drug-induced rape had photographs
taken of her injuries with the use of dye and catheterization. Dozens
of photographs were taken and the mother of the victim was told by the
nurse at the time of the exam (a nurse who just happened also to be
employed by U.Va. AND was married to the deputy chief prosecutor in the
county attorney's office that declined to file criminal charges) that
the victim suffered injuries consistent with sexual assault, but when
the school-based hearing took place, a different medical report was
submitted containing contrary information and the dozens of photographs
taken with the use of dye and catheterization were not shown. When
asked by the family AFTER the hearing (which favored the perpetrator on
the grounds that "there was no evidence of injuries") to produce the
photographs, U.Va. officials said, without explanation, "there are
none." The photos just disappeared.

It is SO important to be skeptical consumers of information about
forensic testing and medical exams - and to ask tough questions about
why so much money is being wasted on evidence that violates victims'
privacy needlessly, rarely produces value and chills their
participation in redress proceedings.  There should be a MUCH greater
focus on offenders. Why not reallocate the money wasted on needless
forensic testing and spend it developing better policies and procedures
to identify and STOP predatory offenders.

Wendy Murphy
New England LawBoston