The medical and ethical aspects of photography in the sexual assault examination: Why does it offend?

The Right to Say No: Why Adult Sexual Assault Patients Decline Medical Forensic Exams and Sexual Assault Kit Evidence Collection

INTRODUCTION

The International Association of Forensic Nurses (2018) affirms the importance of evidence-based, trauma-informed, patient-centered forensic nursing services that engage patients as autonomous decision makers. Past research indicates that forensic nurses consistently respect patients' choices and control as they navigate the decisions of medical forensic examinations (MFEs) and sexual assault kit (SAK) collection. Building on that work, this study examined which options patients decline and what factors are associated with those declination decisions.

METHOD

We collected prospective data from seven state-funded sexual assault nurse examiner programs. Forensic nurses recorded information about all adult sexual assault patients (N = 783) regarding four primary decisions: whether to have a MFE, whether to consent to all parts of the MFE or to decline specific services, whether to have a SAK collected, and whether to release the SAK to law enforcement for forensic DNA testing.

RESULTS

Most patients consented to a MFE (95%), to all parts of the MFE (81%), to SAK collection (99%), and to release the SAK for forensic DNA testing (80%). Younger patients and those with disabilities were more likely to decline some options. Patients who had not disclosed the assault to others before seeking sexual assault nurse examiner care were also more likely to decline a MFE. Whether patients sought post assault care for more health-focused reasons or legally focused reasons was associated with declination decisions.

CONCLUSIONS

Healthcare providers should communicate clearly about each step in post assault care and allow patients to decline services as they choose.

Forensic photo-documentation in adult sexual assault- what do patients think?

Historically, some forensic practitioners and policy makers have viewed the use of photography in forensic documentation for adult victims of sexual assault as controversial. Some argue that diagrams and verbal descriptions of injury are sufficient, suggesting that sexual assault victims are so traumatised at time of examination that they are not able to provide valid consent, that the imaging process itself is humiliating, and that any decision to have photographs taken might be later regretted. Objectively, a patient capable of consenting to a forensic examination has an equal capacity to consent for forensic imaging, even when this involves sensitive areas of the body, and the process of forensic photography is not inherently problematic. Literature on forensic photography is sparse, particularly from the patient perspective. Our Forensic Medical Unit is in an excellent position to investigate this issue, as it is one of the few services in Australia that routinely offers sexual assault forensic photography, including genital, as part of its standard procedures for injury documentation. Photographs, in adult sexual assault cases, are not routinely taken of normal anatomy nor are they ever taken without patient consent. This study explores the immediate and short-term experiential impacts of forensic photography from the victims' perspective. Capacity to consent was assessed using a trauma informed, evidence-based interviewing tool at the start of their forensic assessment. Participants also completed questionnaires at the conclusion of their examination and on follow-up. Results show that victims not only have the capacity to provide informed consent but also found forensic photography, and the reasons for it, quite acceptable. A majority [80%; n = 87/108] indicated the photographic process had either been not at all or only a little embarrassing. When asked how they felt about having photographs taken, the majority 93.4% [n = 99/106) indicated that as well as having no regrets they were also happy with the way the images had been taken. 4.7% [n = 5] expressed some doubt about whether they had made the right decision. A similar pattern of responses was observed at follow-up which occurred, on average, seven weeks post examination. 72% [n = 26/36] said they did not think about the photographs at all or did so rarely. While 14% [n = 5/36] said they thought about them a fair bit or a lot of the time, most stated they had no concerns regarding the images that had been taken. Given its evidentiary salience and other benefits, such as its potential to promote greater transparency in the provision of forensic opinions and its usefulness in teaching, this study supports the case for the routine use of forensic photography in adult Sexual Assault Units more broadly.

Macroscopically detected female genital injury after consensual and non-consensual vaginal penetration: a prospective comparison study

OBJECTIVE

The aim of this study was to compare the prevalence, type and pattern of macroscopically detected female genital injury after consensual and non-consensual vaginal penetration to further an understanding of the forensic significance of genital injury in women reporting sexual assault. A secondary aim was to identify any effect of a range of possible variables upon the likelihood of genital injury resulting from vaginal penetrative sexual intercourse.

STUDY DESIGN

Two groups of reproductive age women (aged 18-45 years) were prospectively recruited within 72 h of a single episode of vaginal penetrative sex, and macroscopically examined for the presence of bruises, abrasions and lacerations at twelve external and internal genital sites. Forty one women who presented for forensic examination after reporting a sexual assault to police were recruited to the non-consensual group and 81 women who presented for routine cervical screening or with sexual health concerns to a primary health care service to the consensual group. Each group was examined by a different group of doctors, all of whom were experienced in both forensic genital examination and gynaecological examination of healthy and diseased sexually active women. Data collection and examination protocols were the same for both groups.

RESULTS

The key finding was a statistically significant difference in genital injury prevalence between women who were vaginally penetrated non-consensually and consensually; 53.7% of the non-consensual group (22/41) and 9.9% of the consensual group (8/81) were found to have at least one genital injury [OR 10.57, CI (4.07, 27.42), p < 0.00001]. Penetration with finger/s and possible pre-existing genital 'infection' were found to be significantly associated with the presence of injury in the univariate analysis after adjusting for consent. Logistic regression demonstrated that women penetrated without consent were 19.5 times more likely to sustain at least one genital injury, than those penetrated consensually [OR 19.53, CI (6.03, 63.24)] and that a penetration scenario that included finger/s was 4.2 times more likely to result in at least one genital injury than penetration without finger involvement [OR 4.25, CI (1.42, 12.78)], when controlling for other variables in the model. Whilst a comparatively low injury prevalence in the consensual group limited interpretation, results revealed possible differences in genital injury typology and pattern resulting from non-consensual and consensual vaginal penetration. Lacerations were seen after both consensual and non-consensual vaginal penetration, while abrasions and bruises were seen exclusively in the non-consensual group.

CONCLUSION

This study demonstrated a significant consent group difference in genital injury prevalence and the highest macroscopically detected genital injury prevalence rate resulting from non-consensual vaginal penetration identified to date. Results also indicate that vaginal penetration with finger/s increases the likelihood of sex-related injury. The difference in type of injury sustained as a result of non-consensual and consensual vaginal penetration was an unexpected finding, and warrants further investigation. These results highlight the importance of a standardised means of detecting genital injury based on consistent injury definitions, examination protocols, and examiner experience and suggest that macroscopic genital examination may be uniquely placed to detect consent group differences in injury typology and pattern if they exist.

Visualizing sexual assault: an exploration of the use of optical technologies in the medico-legal context

This article is an exploration of the visualization of sexual assault in the context of adult women. In investigating the production of visual evidence, we outline the evolution of the specialized knowledge of medico-legal experts and describe the optical technologies involved in medical forensic examinations. We theorize that the principles and practices characterizing medicine, science and the law are mirrored in the medico-legal response to sexual assault. More specifically, we suggest that the demand for visual proof underpins the positivist approach taken in the pursuit of legal truth and that the generation of such evidence is based on producing discrete and decontextualized empirical facts through what are perceived to be objective technologies. Drawing on interview and focus group data with 14 sexual assault nurse examiners (SANEs) in Ontario, Canada, we examine perceptions and experiences of the role of the visual in sexual assault. Certain of their comments appear to lend support to our theoretical assumptions, indicating a sense of the institutional overemphasis placed on physical damage to sexually assaulted women's bodies and the drive towards the increased technologization of visual evidence documentation. They also noted that physical injuries are frequently absent and that those observed through more refined tools of microvisualization such as colposcopes may be explained away as having resulted from either vigorous consensual sex or a "trivial" sexual assault. Concerns were expressed regarding the possibly problematic ways in which either the lack or particular nature of visual evidence may play out in the legal context. The process of documenting external and internal injuries created for some an uncomfortable sense of fragmenting and objectifying the bodies of those women they must simultaneously care for. We point to the need for further research to enhance our understanding of this issue.