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

["Bowdler, Michelle D." <>]

Trigger Warning

Hi:

I am wondering if this list is monitored in anyway?  I do not appreciate the 
"semen from three men and a goat" line, as well as many other graphic details 
about rape cases involving injuries.  I neglect to see how this serves the 
purpose of this list and I would rather not unsubscribe as the Title IX and 
prevention discussions are very helpful to me.  

For the record, I disagree with the author's position on the rape kit 
backlog, but I do not think this listserv is the place to discuss it.  Happy 
to do it off line if anyone wants additional information.    

Thank you.



-----Original Message-----
From: 

 
[mailto:]
 
Sent: Tuesday, April 30, 2013 8:40 AM
To: 
;
 

Subject: Re:New Medical Exam Policies for Victims


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