1. What impact, if any, does the involvement of a Sexual Assault Examiner have on criminal justice outcomes in cases of sexual assault?

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1 The Impact of Medical Evidence on Criminal Justice Outcomes: The District Attorney/Sexual Assault Examiner Study: Final Report New York City Alliance Against Sexual Assault The Manhattan District Attorney s Office St. Luke s/roosevelt Hospital Center Crime Victims Treatment Center ABSTRACT The District Attorney/Sexual Assault Examiner (DA/SAE) study is a collaborative research project undertaken by the New York City Alliance Against Sexual Assault, the Sex Crimes Unit of the Manhattan District Attorney s Office, and St. Luke s/roosevelt Hospital Crime Victims Treatment Center (CVTC). The purpose of the study is to explore the impact that Sexual Assault Examiners (SAEs) have through structured physical examination, forensic evidence collection and courtroom testimony on criminal justice outcomes. A secondary goal of the project is to explore the role currently played by medical evidence in cases of sexual assault (SA). Therefore, to accomplish these goals, the study poses two basic questions: 1. What impact, if any, does the involvement of a Sexual Assault Examiner have on criminal justice outcomes in cases of sexual assault? 2. In general, what role does medical evidence play in cases of sexual assault in the criminal justice system? The DA/SAE Study was designed to uncover possible relationships in cases of sexual assault between criminal justice outcomes and victim treatment in hospital emergency departments. The emphasis of this inquiry is on the involvement of trained SAEs and the role of medical evidence in sexual assault cases. 1

2 INTRODUCTION When dealing with the experience of sexual assault, certain aspects of emergency care can inadvertently hinder a sexual assault victim s recovery. Many physicians who provide the forensic sexual assault exam do not receive adequate training to prepare them for the complex forensic aspects of the examination and case documentation. Advances in DNA and other technologies have made the collection of forensic evidence more specialized and complex. In addition, the psychological trauma a sexual assault victim suffers causes her 1 to view the hospital visit and the initial contact with law enforcement through the lens of trauma. Often the survivor experiences the procedures, necessary to conduct a thorough exam, as intrusive and disrespectful. If not handled carefully, these negative effects may be exacerbated if the examining physician conveys disbelief to the victim s claim of assault. The first institutional response is not only key to a survivor s recovery overall, but may also influence the decision on whether or not to pursue a criminal case against the perpetrator. When a sexual assault victim does choose to pursue a criminal case, it is essential that hospitals be able to cooperate with the criminal justice system, particularly in terms of obtaining and documenting adequate medical evidence and/or providing expert witnesses to explain this evidence in court. Advances in the collection of forensic evidence and the existence of DNA databases have made the hospital visit the locus of medical and criminal justice collaboration. As a result of these technological advances, the need to work in coordination with law enforcement and prosecutors has become paramount. Sexual Assault Examiner (SAE) programs achieved national prominence as one way to accomplish the needed collaboration between victim advocacy, healthcare and the criminal justice system, as promoted by the Violence Against Women Act of Sexual Assault Examiners are specially trained in the forensic aspects of the sexual assault exam, documentation of exam findings to preserve evidence, and possess a professional sensitivity to trauma. The key element of an SAE program is a team of forensically trained Sexual Assault Examiners (SAEs). An SAE is a medical practitioner (doctor, nurse, midwife, or Physicians Assistant) who has completed the 5-day SAE training approved by the New York State Department of Health, a post-training course of preceptorship, and is on-call for sexual assault cases. The training includes sensitivity to the survivor, recognizing the signs of psychological trauma, injury identification, proper collection of forensic evidence, proper case documentation, and orientation to the examiner s role in the legal procedures and court presentation of sexual assault cases. Despite increasing support on the national and local levels, there is very little empirical documentation that demonstrates the actual effect of SAE programs on criminal justice outcomes. In addition, there is controversy about the testimony provided by SAEs and 1 While both women and men are victims of sexual assault, the majority of victims are women. Therefore, for the sake of consistency, victims will be referred to as her or she throughout this report. 2

3 the effect on sexual assault law reform. It should be noted, however, that increasing numbers of District Attorneys across the country are reporting positive experiences with SAEs and that to date not one conviction based on SAE testimony has been overturned (Little, 2001). There is more general evidence that the existence of medical records to corroborate the crime can be useful in prosecuting cases of sexual assault. Once Canadian study considered the presence of medical records a key variable in its examination of client-related characteristics in successful sexual assault prosecutions. They cited research indicating that medical records appear to play a role in keeping the case within the legal system (DuMont & Myhr, 2000). Medical records are especially important because, as Myers and LaFree found in a 1982 study, sexual assault cases slightly different from other criminal cases. Though corroboration is not a written requirement, the lack of such evidence may result in subtle skepticism of the accuser (ibid). In their study, DuMont and Myhr considered hospital data specifically when investigating the variables related to conviction evidence. They found that if it could be documented that the assailant used physical force, the case was almost three and one half times more likely to result in a conviction. However, it is also important to note that much of the literature reflects the fact that visible physical injury is not necessarily common in cases of sexual assault (Cartright, 1987, Hampton, 1995). As a result, technological advances such as colposcopy2 have become increasingly important (Slaughter, 1992). Tucker et al. (1990) identified three types of evidence used in prosecuting sexual assault cases: that which corroborates use of force or an act against the victim s will, that which corroborates recent sexual contact, and that which identifies the perpetrator. There are various ways in which evidence is collected to corroborate recent sexual contact. Tucker et al. found that the results of tests administered during a forensic exam were most likely to be positive if the evidence was collected during the first five hours following the assault; by twelve hours after the assault, results were less likely to indicate positive. The development of a department of trained sexual assault nurses was recommended in order to increase efficiency in busy emergency departments. Generally, a review of the current literature indicates that there are a limited number of studies on Sexual Assault Nurse Examiner (SANE) programs or the efficacy of such programs as they relate to the criminal justice process. The work of Linda Ledray is the one notable exception. In her work, Sexual Assault Examiners are shown to be a valuable resource for the criminal justice system because their extensive training includes instruction on evidence documentation. SANEs are taught to document any specific information provided by the survivor at the time of the examination. In a study conducted by a SANE program based at Hennepin County Medical Center in Minneapolis, researchers found the efficacy of an exam completed by a Sexual Assault 2 Colposcopy utilizes a colposcope to light and magnify the body in an examination. Green lens filters make abnormal patterns of blood vessels stand out from normal genital tissue. Colposcopy enable examiners to detect microscopic injury and the colposcope itself can be attached to a 35mm or video camera for documentation. (Sommers et al., 2001) 3

4 Nurse Examiner to be significantly better than examinations conducted by medical personnel with no SANE training. Rape kits done by SANE personnel had better documentation; there was more complete evidence and the chain of evidence was maintained more often than in kits collected by staff without SANE training. Chain of evidence in particular is crucial to the prosecution; if the chain of evidence is broken, the evidence cannot be used in court (Ledray, 1997). This study supports the belief that a welltrained SANE will more efficiently collect evidence than a medical provider who has no such training. If the examination evidence is not sufficient, it will be useless should the case go to trial. Ledray also discusses how SANE training should facilitate closer interagency collaboration. In Monmouth County, New Jersey, for example, SANEs record the name of the responding officer and his/her agency or department. This was found to be beneficial for both the nurse and the investigating officer in tracking cases after the initial exam was completed. Overview of the Present Research As a funder of Sexual Assault Examiner Programs and the conduit for Violence Against Women Act funds in New York State, the New York State Division of Criminal Justice Services (DCJS) has shown great interest and investment in research on Sexual Assault Examiner programs. They funded the New York City Rape Treatment Consortium (now the Forensic Healthcare Program of the New York City Alliance Against Sexual Assault) to study the treatment of sexual assault survivors in New York City emergency rooms. As a part of the study, New York City prosecutors were surveyed on their experiences working sexual assault cases coming from both hospitals with Sexual Assault Examiner programs and hospitals without such programs. A total of 52 Assistant District Attorneys from all five boroughs in New York City responded to the survey. Approximately one-third had worked on cases originating in pilot hospitals (those with SAE programs). The majority of these respondents identified the pilot hospitals as providing better evidence collection to make a case. In general, 75% of all the respondents felt that having examinations performed by a trained SAE was very important to ensure accurate forensic evidence and documentation (New York City Rape Treatment Consortium, 2000). It is the goal of this study to explore the role that medical evidence plays in sexual assault cases going through the criminal justice system in Manhattan, and to establish whether or not the involvement of trained SAEs has begun to have a measurable positive effect on the outcomes of these cases. 4

5 STUDY DESIGN & METHODOLOGY Three of the study hospitals (designated Hospitals A, B, and C) have functioning SAE programs, among the oldest and most established in New York City. A fourth hospital (designated Hospital X) is included as a control group in the study to enable the evaluation of any significant differences between hospitals with and without SAEs in terms of criminal justice outcomes. Hospital X was selected for two reasons. First, the control hospital provides a range of services similar to those available at the other study hospitals. Second, the Manhattan District Attorney s Office identified Hospital X as having a history of reporting a high number of sexual assault cases annually. In order to be included in the study, cases had to fall within the following parameters: Cases of sexual assault where a report had been made to the Manhattan DA s Office between January 1, 1998 and March 30, 2001 (39 months). ( Sexual assault includes cases of rape, sodomy, and sexual abuse, as defined by NYS Penal Law, article 130.) Cases that had been treated in the Emergency Department of one of the 4 study hospitals. Cases where the victim was over the age of The DA/SAE Survey A survey form was filled out for each case identified by the DA s Office as falling into the three required study parameters. Each survey was given a unique Project ID number. Information collected from the DA s files on these cases included the following: Hospital designation (A, B, C, or X) Victim 4 demographics (sex, race, age, date of assault). Defendant Demographics (sex, race, age, crimes charged at arrest, relationship to victim). Case Information (name of ADA assigned to the case, Investigation #, Docket #, Indictment #, disposition of case). After the surveys were completed by the DA s Office, additional data was obtained from the participating hospitals. For each case where the victim was treated at Hospital A, B, or C, the following information, obtained form hospital or rape crisis center files, was recorded: Whether or not the victim was examined by an SAE 3 This age parameter was selected because most hospitals consider patients under 14 to be pediatric cases, and treatment protocols may differ. The DA s Office also treats pediatric cases differently. Cases involving children under 14 are handled by the Child Abuse Bureau, not the Sex Crimes Unit. 4 A note on use of language: The collaborators in this study all use different language when describing their cases. For example, rape crisis centers tend to refer to the victims of sexual assault as survivors where the terminology of the DA s Office refers to the same people as complainants, complaining witnesses, or victims. For the sake of consistency, the terms victim and defendant will be used throughout the study. It was felt that this language would be clear and recognizable to all parties. 5

6 Whether or not an ED Advocate was present Type of assault (stranger, acquaintance, other) Victim demographics (name, race, age, date) were cross-referenced with data from the DA s Office to ensure the cases matched. For each case where the victim was treated at the control hospital (Hospital X), the following was recorded on the survey forms: No to whether the examination was performed by an SAE Certain variables, particularly those dealing with case docket information, victim demographics, and defendant demographics, were used for tracking purposes only. The case information helped ensure that survey and interview data matched for each study case. The Assistant District Attorney (ADA) Interview Schedule The second data collection instrument recorded information from interviews with the Assistant District Attorneys (ADAs) who originally handled the prosecution of study cases. The interview questions were divided into four sections covering the following information: 1. Case Information: Including dates, arrest charges, docket numbers, and final case disposition. 2. Pre-Trial Activity: This section included questions on the involvement of the SAEs or other medical practitioners in pre-trial discussions and scheduling, and on the quality and accessibility of the medical records for each case. 3. Trial Activity: Questions in this section dealt with the quality and effectiveness of the SAEs or other medical practitioner s testimony. 4. The Effect of Medical Evidence and other Key Factors on Case Outcomes: This category consisted of two open-ended questions: Overall, would you say the medical evidence had any effect on the outcome of this case? (Answer: yes/no/not applicable) Please explain. Aside from the medical evidence, what would you say was the primary influence on the outcome of this case? 6

7 RESULTS Case Demographics Data was collected on a total of 160 cases (N=60). Table 1 presents the distribution of the prosecutor s cases by the hospital involved in collecting the case s medical evidence. Table 1. Case Distribution by Study Hospital Hospital Frequency Percent (%) Hospital A Hospital B Hospital C Hospital X % 23.1% 15.6% 28.8% Totals: N = % In terms of the victim and defendant demographics: The majority of the victims (n=155, 96.9%) were female. Two cases (n=2, 1.3%) had multiple defendants; there were 162 total defendants for the 160 case records. The majority of defendants (n=161, 99.4%) were male. In terms of race, more victims were Caucasian (n=65; 40.6%) than African American (n=41; 25.6%), Hispanic (n=36; 22.5%), or Asian (n=8; 5%). (See Table 2) More defendants were African American (n=65; 40.6%) than Hispanic (n=38; 23.8%), Caucasian (n=35; 21.9%), or Asian (n=5; 3.1%). (See Table 3) Table 2. Victim Race/Ethnicity Table 3. Defendant Race/Ethnicity Victim Race/Ethnicity Frequency Percent % Defendant Race/Ethnicity Frequency Percent % Caucasian African American Hispanic Asian Unknown % 25.6% 22.5% 5% 6.3% African American Hispanic Caucasian Asian Unknown % 24.1% 22.2% 3.1% 10.5% Total % Total % There was a significant relationship between the race of the victim and the race of the defendant (p<.05) (see Table 4). There is a strong tendency towards intra-racial assaults among cases in this study, meaning that both victim and defendant come from the same 7

8 racial or ethnic group. Cases involving inter-racial assaults tended to involve defendants who are African American and Caucasian victims. 69.4% (n=25) of Caucasian defendants had a Caucasian victim; conversely, 38.5% of Caucasian victims had a Caucasian defendant. 49.2% (n=32) of African American defendants had an African American victim; 78% of African American victims were assaulted by an African American defendant. 53.8% (n=21) of Hispanic defendants had a Hispanic victim; 58.3% of Hispanic victims were intra-racially assaulted by a Hispanic defendant. 33.4% (n=22) of African American defendants had a Caucasian victim; 33.8% of Caucasian victims were inter-racially assaulted by an African American defendant as compared to the 38.5% of Caucasian victims of intra-racial assault. Table 4. Race of Victim by Defendant Race of Victim Caucasian African American Hispanic Asian Unknown Total: Caucasian African American Race of Defendant Hispanic Asian Unknown Total The final demographic category considered in the study of case files is the age of both victim and defendant. There were 129 (n=129) cases for which both the age of the victim and the defendant was known. There was a significant relationship between the age of the victim and the age of the defendant (p <.05); assaults were most often perpetrated by defendants on victims of similar age. The relationship is reflected in Table 5. 60% (n=24) of victims aged 20 years or younger were assaulted by defendants under the age of % (n=19) of victims aged years were assaulted by defendants in the same 10-year age range. 85.3% (n=110) of victims for whom age was known were 40 years of age or younger; 73.6% (n=95) of defendants were 40 years or younger. 5.4% (n=7) of victims and 7% (n=9) of the defendants were over the age of 50, but were either assaulted by or assaulted younger individuals. 8

9 Table 5. Age of Victim by Defendant Age of Age of Defendant Victim years years years years > 60 Total years years 20 years years years years years > 60 years Total Criminal Case Disposition One of the key variables in this study is the final criminal case disposition and outcome for the defendants in these study cases. According to the information collected from the DA s files, the disposition of the cases (Table 6) breaks down as follows: Table 6. Disposition as Defined by DA s Office DA Case Disposition Frequency Percent (%) Conviction after Trial Acquittal Dismissal/Dropped Conviction by Plea No Arrest Authorized Case Sealed Other % 0.6% 31.3% 28.7% 20.6% 8.2% 5.6% Totals N= % While this data may provide an accurate reflection of the pattern of sexual assault case dispositions in the DA s Office, the distribution does not provide the framework needed for analysis of the questions being asked in this study for several reasons. First, a case disposition may or may not be influenced by medical evidence. Second, the variables No Arrest Authorized and Other both contain two different types of case some in which no evidence of a crime is found and others where cases are still open. Third, Case Sealed generally means charges were dismissed or there was an acquittal. Most of the cases with this last designation are among those without ADA interview data. In order to obtain a more accurate reflection of the relationship of medical evidence to case outcomes, the disposition variable has been re-configured as follows: o Conviction and Plea will remain the same. 9

10 o o The categories of Dismissal/Dropped, Case Sealed, and Acquittal are combined. The new designation for this category will be No Conviction. The No Conviction category will include all cases that did not result in a conviction or guilty plea. Cases currently defined as No Arrest Authorized or Other will be redefined as either Open Cases or No Conviction, depending on the details of the case. Open Cases generally involve situations where a perpetrator has not yet been identified or apprehended, or where a case is still under investigation. Those cases redefined as No Conviction are cases in the DA s office did not pursue further, for reasons that will be explored in the qualitative data analysis. After reconfiguration, Table 7 shows the distribution of the variable case disposition: Table 7. Reconfigured Case Dispositions DA/SAE Case Disposition Frequency Percent Conviction after Trail Conviction by Plea No Conviction Open Cases % 28.7% 53.8% 12.5% Totals N = % Sexual Assault Examiners were involved in 31.9% (n = 51) of all surveyed cases. Analysis found there were no unexpected or significant relationships between SAEs and any other survey variable, including case disposition. SAEs were somewhat more likely to be involved in cases resulting in conviction and less likely to be involved in plea cases, but these findings were not statistically significant. Victims between the ages of were more likely to have been examined by an SAE. However, this can most likely be explained by the fact that a higher proportion of victims in this age group were seen at SAE hospital sites (Hospitals A, B and C). Interview Data The Assistant District Attorneys responsible for handling the specific study cases were interviewed. Interviews were completed for 66.9% (n = 107) of all study cases. The ADAs were asked to review the interview data and to add more detailed descriptive case information wherever possible. Preliminary analysis showed the interviews were evenly distributed across all key study variables, including case disposition, the influence of medical evidence and the involvement of an SAE. Pre-Trial & Trial Activity In the Manhattan District Attorney s Office, generally, approximately 80% of all felony cases are resolved by plea agreement (Plea); fewer than 20% of all felony cases ever go to trial. Therefore, the fact that relatively few cases from this study (n = 9; 5.6%) actually went to trial was not a surprising result. However, this lack of need for SAE testimony at 10

11 trial made it difficult to ascertain the effect SAE involvement has on criminal justice outcomes. ADAs responded not applicable in 82.2% % of all cases on questions related to Pre-Trial and Trial activity, except for questions involving medical records. Questions on Pre-Trial activity included whether or not the SAE or medical practitioner was available for discussion of the case, was accommodating about scheduling appointments, and whether or not the ADA considered the exam of the victim thorough. Questions regarding Trial Activity included whether or not the SAE or medical practitioner actually testified, whether the Court qualified them as expert witnesses, whether the SAE or medical practitioner was able to articulate clearly both their qualifications and the examination of the victim, and were they able to explain the results of the exam in terms of the alleged charges. Table 8. Pre-Trial Activity of SAE or Medical Practitioner Pre-Trial Activity Yes No Not Applicable Available for Discussion 16.8% 1% 82.2% Accommodate Scheduling 10.3% 1% 88.7% Conduct Thorough Medical Exam for Purposes of Prosecution 31.8% 7.5% 60.7% Table 9. Trial Activity of SAE or Medical Practitioner Trial Activity Yes No Not Applicable Actually Testified at Trial 5.6% 1% 93.4% Qualified as an Expert Witness 5.6% 1% 93.4% Articulated Qualifications 4.6% 1% 94.4% Articulated Exam process and Results Explained Results Consistent with 5.6% % Criminal Charge 6.5% % As can be seen in Table 8 and Table 9, where there was a Pre-Trial activity, the ADAs rarely had any difficulty with the SAE or medical practitioner. Further analysis show that there were no significant differences between SAE and non-sae cases in terms of Pre-Trial or Trial activity. Medical records in general appear to have been utilized more frequently than direct testimony of an SAE or medical practitioner in these cases of sexual assault. In 79.4% (n=85) of the cases examined in the interviews, medical records were accessible and provided to the ADA prosecuting the case. In 70% of the cases, the ADA reported no difficulties with the language used to document the examination in the medical records. 11

12 When asked to evaluate whether medical evidence had any effect on the outcome of the case, the ADAs responded no in 53.3% (n=57) of the cases and yes in 39.3% (n=42) of the cases. Further analysis of the interview data shows that the medical records in cases involving SAEs were more likely to be accessible and without language problems and far more likely to be complete and legible than the medical records in other cases, however, this tendency was not statistically significant. Other Primary Influences In the interviews, the ADAs cited other primary (positive or negative) influences on case outcomes. As shown in Table 10, these include whether or not the victim was credible or cooperative, the presence or absence of corroborating evidence, and cases where the defendant took a plea. There was a small group of cases (19.6%) where the primary influence on the case disposition involved special circumstances unique to the individual case. Table 10. Primary Influences on Case Outcomes Other than Medical Evidence Primary Influence Frequency Percent Victim Uncooperative (-) Victim Not Credible (-) Lack of Evidence (-) Corroborating Evidence (+) Defendant Took a Plea (+or-) Special Circumstances % 33.6% 14% 10.3% 9.4% 19.6% Total n= % The special circumstances, while not generally as influential as other identified key elements, can have some influence on final outcomes in a significant number of cases. For example: Cases involving alcohol or drugs: This would include cases where a victim had been drinking and could not provide a clear, coherent account of the incident in question. It would also include cases where a history of drug and/or alcohol abuse might have had a negative impact on the evaluation of a victim s credibility. Most common in closed cases, alcohol or drugs may also have had some influence on certain plea cases. Cases involving a mentally disabled victim: Very similar to cases involving alcohol, the victims in these cases may provide accounts of the incidents that are either incoherent or not credible. This problem is also most commonly found in closed or plea cases. 12

13 Cases where the medical evidence does not support the victim s story: Identified as a contributing factor in a number of closed cases, this usually involved a lack of corroborating physical evidence. Lack of seminal fluid or a clear tox-screen could also be a factor in some cases. In one case, DNA testing eliminated the defendant altogether. Cases where the victim is or was involved in prostitution: Prostitution is clearly described as an influential element in a number of cases. However, unlike other elements, there does not appear to be a clear or specific pattern to this influence. Victims involved in prostitution were found in no conviction cases, pleas, and in one conviction. Most cases of SA involve a prior relationship of some kind between victim and defendant: In some cases, the victim was often reluctant to prosecute because of this relationship. The most common outcome involved the court accepting a defense plea to some lesser charge, although it was also a factor in a number of closed cases. Statutory case: In some cases, the defense accepted a plea based solely on the fact that the victim was under age. In such cases neither use of force nor lack of consent was an issue. Medical evidence was rarely a factor in these cases. Cases where a weapon was involved: A few cases specifically mention that the police recovered a weapon during their investigations. However, there is no information to indicate what influence, if any, this may have had on case outcomes. As none of the victims in these cases appear to have been seriously injured due to the weapon, this may relate to the question of corroborating a victim s story in terms of consent or use of force. Cases where the victim suffered some kind of physical injury: Documentation of physical injury was probably the most frequently mentioned reason in cases where the ADA felt medical evidence had a positive impact on case disposition. It should be clearly noted that in most cases, disposition was influenced by a number of different elements. While in some case, the influence of one element predominated, in many case it was a combination of several elements that led to the specific outcome. A full content analysis of the data provided by the open-ended questions was conducted, organized by case disposition, with special attention paid to the role of medical evidence in general and SAE cases in particular. The results were as follows: Convictions: None of the cases resulting in conviction were influenced by alcohol, drugs, or mental disability and all of the victims in these cases were considered credible. All but one involved cases of stranger rape, one case involved a prostitute. In the acquaintance rape case, a weapon was involved but the victim was not injured. 13

14 Cases with SAEs: In two of the conviction cases, the ADAs felt the testimony of the SAE was effective: The medical evidence was consistent with victim s statement. The victim did not sustain any injuries, and there was no DNA recovered the prompt outcry to a witness helped the victim s case enormously; and the SAE was able to explain that the lack of injuries was consistent with victim s story. In a third case, the ADA had some trouble with the SAE, and felt the medical evidence had no impact on the outcome of the trial: It was difficult to locate the SAE [who] had some difficulty articulating the extent of her training The victim and defendant had been dating for several months. There were no injuries. The sole legal issue was consent the victim was candid about her prior relationship with the defendant; she made a prompt outcry; and a weapon was recovered from his apartment (where the crime occurred). Cases without SAEs (Note: Both of these cases were from Hospital X): In the two conviction cases without SAEs, one involved medical evidence that was useful to the prosecution. In the other case, the medical records had a negative impact on the case outcome: The exam was well performed and documented. The evidence of the torn hymen in the internal exam corroborated the force the defendant burglarized the victim s apartment and forced her inside with an imitation pistol. The victim was an outstanding witness. The victim was a prostitute. While it was appropriate for medical witness to note on emergency room record that she was laughing and joking in the emergency room, the comment is what the jurors relied on to acquit of rape, although they convicted of robbery. Open Cases: The majority of the interviews in this group (nearly 80%) involve cases of stranger rape. The main reason most of them are still open is that the perpetrator has not yet been identified. In a few cases the defendant has jumped bail, and in one case the suspected perpetrator has died. The majority of these open cases also involve DNA evidence. Only 2 cases appear to have no significant medical evidence. In terms of other possible case elements, none of the interviews mention a lack of credibility, mental disability, or prostitution. One case involves drugs and one has documented physical injuries. Two cases involve alcohol, but the ADAs in these cases do not appear to anticipate any negative impact in terms of court proceedings. However, in one of these cases the victim s intoxication may have blocked the collection of any medical evidence. 14

15 Open Cases With SAEs: All but one of the open cases was treated at hospitals with SAE programs, and about half of them were in fact treated by an SAE in the hospital emergency room. However, with or without an SAE, the most important medical evidence in open cases involves DNA. For example: During the exam, a single sperm cell was found on victim s stomach. This led to the identification of the rapist by DNA The DNA evidence was the critical link to solving this crime the exam and [medical] evidence will be the key element at the trial... After being forced to commit oral sodomy, the victim spit the semen into a plastic bag. Therefore, the police got his DNA from the sample (rather than from the medical exam) once the defendant is identified and matched to his DNA profile, he will be arrested and tried for these crimes. In one open case, where the victim was treated by an SAE, the key issue in terms of medical evidence is not DNA, but drugs: The medical evidence is the critical part of this case, proving that the victims were drugged by the perpetrator The outstanding exam, and the SAEs prompt action in bringing the police into this case, resulted in a strong prosecutorial position. In another case, there is no mention of DNA, but of physical injuries: The victim was treated for bruises and cuts on her face. This medical evidence will be helpful at the trial. Open Cases without SAEs: Aside from the cases where DNA evidence is expected to play a key role, there were problems with medical evidence in a number of the non-sae cases. In one case, the victim left the hospital before she could be examined. In another case, the ADA said: No DNA [was] recovered to identify [the] perpetrator No suspects have been apprehended. In the one open case from hospital X, DNA identification is also considered to be the key element in the case: The medical exam recovered the perpetrator s semen, from which a DNA profile was prepared once matched (possibly via DNA databank), the medical evidence will be critical in connecting this defendant to the crime. In one particular case, in which semen or seminal fluid may or may not have been recovered, the ADA had this to say about the exam and the medical evidence: 15

16 The case involved only sexual abuse over the victim s clothing so there was no need for a gynecological exam. However, a full physical exam would have been helpful as the victim was knocked down as she was going up stairs and a struggle ensued on the stairs. Therefore, it was certainly possible that the victim had bruises or scratches on areas of her body that were not visible unless she disrobed. The fact that such a full physical exam was not completed appears due to one of two reasons: 1) The doctor did not feel it was necessary as there was no penetration and the victim was not complaining of any injury under her clothes, and/or 2) the victim was intoxicated and very upset and wanted to go home as soon as possible. Plea Cases: In the majority of the Plea cases described in the ADA interviews (approximately 75%), the defendants plead guilty to a sexual charge. In those cases involving a plea to a lesser sexual charge, statutory rape and mentally disabled victims were frequently the most influential factor. In most of the cases involving a plea to non-sexual charges, the medical evidence was not considered to be important. This was true for both cases with and without SAEs. Cases where the defendant pled guilty to lesser, non-sexual charges were most often cases involving significant prior relationships between victim and defendant. In these cases, and in a couple of cases involving prostitutes, the victims were reluctant to prosecute to the full extent of the law. Several statutory cases also resulted in a plea to lesser, non-sexual charges. Two of the Plea cases involved victims who had been drinking alcohol. In one case, which did involve an SAE, other corroborating evidence existed and the defendant pled guilty to a lesser sexual charge. In the other case, there was no SAE and the victim could not remember details of the assault. This case ended in a plea to a lesser, non-sexual charge. In terms of those cases where the ADAs felt the medical evidence did have a positive influence on the case outcome, there were some interesting differences between those cases involving an SAE and those without: Plea cases with an SAE: While the differences were not large enough to be statistically significant, cases involving SAEs and a positive effect on case outcomes were clearly more likely to result in a plea to the maximum sexual charge than similar cases without SAEs. The ADAs gave the following descriptions: the medical record carefully documented all the injuries which occurred during the assault [They] corroborated victim s story (even proving that a knife was held to her neck), and were largely responsible for the defendant s admission of guilt. 16

17 The ADA believed the medical records and colposcope photos convinced the defendants of the strengths of prosecution case both defendants were strangers to the victim. One had her wallet in his possession, and the other (whose hand she bit) was connected to the crime by DNA evidence [the SAE] did an excellent job in interpreting the medical evidence. Plea cases without an SAE: It is interesting to note that ALL of the cases in this group involved documentation of physical, NOT sexual, injuries. Half of the cases resulted in a plea to lesser non-sexual charges. Only one in four resulted in a plea to the maximum sexual charge. However, it also needs to be noted that a number of these cases were also complicated by previous relationship issues and one involved a prostitute reluctant to prosecute. No Conviction Cases: By far the largest category (53.8% of all study cases), No Conviction Cases were also the most complicated in terms of case outcomes. However, as previously discussed, medical evidence was less likely to have an influence on closed cases than on other types of cases. Analysis of the data from the ADA interviews showed that while there were usually a number of contributing variables, cases were usually closed for one of three basic reasons. These wee, in order of frequency: The ADA was unable to establish that a crime had been committed. The victim was not credible and/or no other supporting evidence was found. The victim was not cooperative, was ambivalent, or was resistant to prosecution. No Conviction Cases with SAEs: Overall, there were no noticeable differences in this category between victims who were examined by an SAE and those examined by other medical practitioners. There was, however, one point of interest in this category. Among those cases closed primarily because the victim was not credible, nearly half had been seen by an SAE. Most of these cases were closed because the victim recanted. While not statistically significant, the finding was interesting enough to pursue a little further. Looking at the program records for 8 cases closed because the victim recanted, all seen by an SAE at Hospital A, it was discovered that none of these victims responded to any outreach efforts offering further services. Only one of the 8 cases had a program advocate present in the ED. This means that while these women were examined by a trained SAE, none of them ever spoke to a counselor or received any other kind of follow-up services from the hospital. 17

18 DISCUSSION System Collaboration: Pre-trial & Trial Activity, Medical Records One of the concerns of the Manhattan DA s Office was that ADAs might be experiencing some specific difficulties in working with doctors and hospitals on cases of sexual assault. In the few cases in this study that actually went to trial, the findings suggest that such problems may be the exception rather than the rule. Among ADAs interviewed there were very few difficulties in terms of either pre-trial or trial activities. Doctors were available for discussion and accommodating about scheduling meetings. In terms of the trials themselves, only 2% of the SAEs or other medical practitioners were deemed not qualified, and only had any trouble articulating there qualifications for the jury. In no cases did the medical practitioners in question have any difficulty articulating their examinations of the victims or in explaining the results of those examinations. One possible explanation for a case where the ADA had difficulty locating the SAE may be a lack of familiarity with hospital systems. This could complicate an ADA s efforts to contact a treating practitioner. An established SAE program will have a coordinator who can put an ADA in direct communication with an SAE more quickly than going through the regular hospital pathways. However, even in hospitals with established SAE programs there is no clear indication on the medical records that a victim was, in fact, examined by an SAE. Therefore, in most cases an ADA may not be aware that they are looking for an SAE. The case where the SAE was not able to articulate their qualifications may have involved an SAE who had not previously been involved in direct court testimony, or an ADA who was not experienced in bringing out the requisite qualifications on examination. An inexperienced SAE may need more pre-trial preparation to qualify as an expert witness than an SAE who has already been in court. As an expert witness and SAE may be called upon to interpret medical evidence. This is different from testifying as a treating practitioner, where testimony would be restricted to a literal account of what was observed during the examination. In addition, the relatively high turnover rate in the DA s Office means that a number of ADAs in the Sex Crimes Unit will not have dealt with a high volume of sexual assault cases. As so few sexual assault cases actually go to trial, there probably will be cases where a new SAE and/or ADA has not yet had the experience of preparing for this kind of testimony. While there is no way of knowing if any of these factors were in operation in the case described in this study, the findings do suggest that some crosstraining on these issues would be beneficial for all concerned. An obvious limitation to the study is that the number of cases that went to trial was too small to measure any statistically significant differences between SAE and non-sae practitioners in terms of pre-trial or trial activity. However, according to the Chief of the Manhattan Sex Crimes Unit, who has 19 years of experience with SA cases, SAEs are easier to contact, more helpful and accommodating regarding case preparation, and more effective at explaining the contents of medical records than non-sae practitioners. 18

19 As previously discussed, the ADAs interviewed for this study were somewhat more likely to deal with medical records, which tend to be most useful in trial or Plea cases. The ADAs interviewed in this study reported relatively few problems with medical records in SA cases. SAEs, Medical Evidence, & Other Influences on Case Disposition Data from the survey indicates that an SAE was involved in 31.9% of the study cases. In the interview data the ADAs indicated that medical evidence had an effect on the outcome, or disposition, in 39.3% of the cases involved. Statistical analysis found that the presence of an SAE did not increase the likelihood that the medical evidence would have an effect on the case outcome. Further analysis showed that except for a slight increase in the proportion of SAEs involved in conviction cases and a moderate decrease in the proportion of SAEs in cases where the defendant took a plea, there was no significant relationship between SAEs and case disposition. The presence of an SAE also had no significant effect on the charges agreed to in plea cases. In general, the involvement of an SAE had no significant effect on what influence, if any, medical evidence may have had on case outcomes. The qualitative data in this study suggests that SAE cases are beginning to have an effect on sexual assault cases in very specific ways: A thorough forensic examination by an SAE can corroborate a victim s story even when there are no visible physical injuries or when no semen is recovered. There are also some indications that the forensic evidence collected by a trained SAE may lead to more defendant pleading guilty to the top count. The study findings suggest that most ADAs tend to look for certain things from medical evidence in sexual assault cases, including: Documentation of physical injuries: Traditionally, evidence of physical or sexual injury (including cuts, bruises, a torn hymen or vaginal lacerations) is among the strongest evidence an ADA can have in cases of sexual assault. However, it has long been known that there are very few cases with adult women where there actually is strong corroborating evidence of physical or sexual assault to be found in an ED exam. Certain types of injury, such as bruises, do not show up on the victim s body until later and are generally not visible at the time of the ED exam. Other types of injury are not clearly visible to the naked eye and can only be clearly seen by colposcope, a tool that is generally only used by SAEs. SAEs are also specially trained in the documentation of forensic evidence with the specific aim of creating medical records that will be appropriate for criminal prosecution. As DNA evidence generally does not have any effect in cases of acquaintance rape, this type of documentation is particularly important. DNA testing and the presence or absence of semen: DNA testing is primarily useful in cases of stranger sexual assault as the identity of the perpetrator is at issue. In cases of acquaintance sexual assault, the identity of the perpetrator is not at issue as he is an acquaintance of the victim. The primary issue in an acquaintance sexual assault is whether activity was consensual. In NYC where all rape kits are forwarded to the OCME for DNA analysis, only approximately 40% test positive for semen. The absence of semen in a completed sexual assault can raise issues at trial. A defendant may argue that a negative finding indicates that no penetration occurred. However, there are a number of reasons that a kit might test negative for semen including the lack of ejaculation, the use of a condom, or the absence of semen from the exact area swabbed. These reasons must be placed before the jury by a trained expert such as an SAE in order to prevent the negative findings from damaging the victim s credibility. Corroboration of the victim s story: The interview data shows that ADAs often find medical evidence very useful in the corroboration of victims stories in both SAE and non-sae cases. However, the accounts from SAE cases suggest that the more subtle evidence and documentation present in an SAE 19

20 examination may support a victim s story even in the absence of more solid physical evidence such as obvious physical injuries or the presence of semen. Toxicology screening for date rape drugs: It should be noted that this type of testing was mentioned in very few cases, and where it was mentioned the results were negative, thus making it difficult to prove the case. Only one case described the positive identification of drugs in a victim. To fully understand these results, one must understand two things; screening for date rape drugs by law enforcement in NYC has only very recently been done and the screening in NYC is done at the Office of the Chief Medical Examiner s (OCME) Toxicology Unit. This unit did not have all the equipment necessary to screen for all possible date rape drugs at that time. Therefore, when discussing the results of date rape drug testing, it is important to determine what type of toxicology screening was actually done. Blood and urine tests done in a hospital can identify the presence of alcohol or certain narcotics in a victim. However, no hospital in New York City is equipped to do the high-level toxicology screens that would detect traces of the so-called date rape drugs. The only way to confirm the presence of these drugs is to take blood and/or urine samples out of the hospital to an outside lab. In New York City, a protocol has recently been established for such cases in which the victim has made a police report. In those cases, a police officer will take the samples from the hospital to the Office of the Chief Medical Examiner of the City of New York (OCME). The toxicology unit at OCME will perform toxicology screening on the samples. If, in a particular case, further testing was deemed warranted by the DA s Office, samples were sent to a private lab in Philadelphia. The protocol is cumbersome, expensive, and not routinely used. There is also some question as to whether or not all concerned parties in both medical and criminal justice systems are familiar with this protocol. Thus, there is clearly room for improvement in the handling of suspected drug-facilitated sexual assault by all parts of the system. When Medical Evidence Has No Impact on Sexual Assault Cases In a surprising number of cases, medical evidence was not considered a determining factor in the outcome of an ADA s cases. In some cases, medical evidence actually had a negative influence on disposition, either by contradicting elements of the victim s story, 20