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In 2000, the Department of Justice found that State and Federal courts convicted almost 984,000 adults of felonies. The penalties for a felony conviction can significantly change your life, and the sooner you contact an attorney upon being threatened with a felony sex offense charge, the better chance you have of mounting a successful defense.
 



SANE Nurses - Investigative Protocol

Defense Techniques in the Courtroom*

Ned Barnett, Stanley G. Schneider
& Dr. Stacey Mitchell**

Defending Sexual Assault Involving Children
September 11-12, 2008
Austin, Texas

Law Office of Ned Barnett
8441 Gulf Freeway, Suite 600
Houston, Texas 77017
(713) 222-6767

Stanley G. Schneider
440 Louisiana, Ste. 800
Houston, TX 77002
(713) 222-6767

Dr. Stacy Mitchell
6315-B FM 1488
Magnolia, Texas
(713) 703-7430

* This paper is a summary the Texas Evidence Collection Protocol.

** This paper was co-written by Amanda M. Webb.

Ned Barnett
8441 Gulf Freeway, Suite 600
Houston, TX 77017
713-222-6767

When Mr. Barnett was born in May of 1961 he was destined to become a criminal defense attorney. His father, both grandfathers and his great grandfather were all lawyers. In 1984, Mr. Barnett graduated from the University of Texas in Austin and immediately started studying law at The University of Houston. In 1987 he graduated from law school and started practicing law.

Mr. Barnett's first job as an attorney was in the Galveston County Criminal District Attorney's office as a state prosecutor. There he prosecuted all types of cases for three years, including sex crimes. In 1991 Mr. Barnett left the District Attorney's office and became a federal prosecutor in the Department of Justice with the United States Attorney's office in Houston, Texas. As an Assistant United States Attorney Mr. Barnett was the lead trial attorney on a large number of significant criminal cases with a perfect record.

After serving three years as a federal prosecutor he now had the training and experience to become a criminal defense attorney, his life long plan, just like his father, grandfathers and great grandfather.

Since 1994 Mr. Barnett has been a criminal defense attorney. He is board certified in criminal law by the Texas board of legal specialization. He is a frequent speaker at legal seminars to educate fellow lawyers. In short, Mr. Barnett's career is dedicated to the defense of the accused.

Memberships:

  • Board certified in Criminal Law by the Texas Board of Legal Specialization
  • National Association of Criminal Defense Attorneys
  • Texas Criminal Defense Lawyers Association
  • Harris County Criminal Defense Lawyers Association
  • State Bar College
  • Founding Member of the National College for DUI Defense
  • Of Counsel: The Williams Kherkher Law Firm

STANLEY G. SCHNEIDER

ATTORNEY AT LAW

Graduated:

St. Mary's University Law School- 1974

Gerry Spence's Trial Lawyer's College-2000

Licensed:

October, 1974, State of Texas, licensed to practice in the United States District

Courts for the Northern, Southern, Eastern and Western Districts of Texas;

United States Court of Appeals for the Fifth, Tenth and Eleventh Circuits, United States Supreme Court.

Prior Employment:

Staff Counsel for Inmates
Texas Department of Corrections
August, l974-October 31, l977

Private practice established in Houston in 1977

Present firm:

Schneider & McKinney, P.C.
440 Louisiana, Suite 800
Houston, Texas 77002
713-951-9994
www.texascriminaldefenselawyers.com
www.Texas-SexCrimes-Defense.com

Firm specializes in State and Federal criminal trial and appellate practice.

Board Certified:

Criminal Law, 1980 - present

Awards:

State Bar of Texas, Criminal Justice Section, Outstanding Criminal Defense Lawyer - 1997, President's Award, Texas Criminal Defense Lawyer's Association, 2003, recognized in Criminal Defense by Best Lawyers in America. Recognized in Best Lawyers in America, 2004, 2006, 2008; Texas Lawyer's Super Lawyer, 2004-2007; Texas Lawyer's Go to Criminal Defense Lawyer 2007; "Order of Merit" presented by Republic of Argentina, 2007.

Organization and Positions held:

President , Harris County Criminal Lawyers Association 2004-2005; Treasurer, Texas Criminal Defense Lawyers Association, 2005-2006, Second Vice President, Texas Criminal Defense Lawyers Association, 2006 -2007, First Vice President, Texas Criminal Defense Lawyers Association, 2007 - 2008; State Bar of Texas 4E Grievance Committee, - six years; Provisional member, American Academy of Forensic Science.

Frequent speaker for the Texas Criminal Defense Lawyer's Project on such topics as "Preserving Error in the Criminal Trial", "Mandamus and Extraordinary Remedies in Texas", "Extraneous Offenses", and "Homicide Investigations and Reconstructions," "Cross examination of Child Witnesses"

Representative clients:

Claude Wilkerson, a man who spent seven years on death row convicted of three murders and is now a free man after the suppression of all evidence in the case;

Vernon McManus a death row inmate who is now free after reversal of conviction;

Johnny Binder, first man in Texas since the 1930's to receive a pardon for innocence after receiving an 18 year sentence for aggravated robbery;

Pamela Fielder, first case to recognize Battered Woman Syndrome in Texas as a defense in a murder case;

Walter Pink, a lawyer's contempt conviction was reversed by the appellate court;

Wanda Holloway, charged with the solicitation of capital murder who has become known as the "Cheerleader Mom";

Patricia and C.W.Smith, United States District Court in Atlanta defense of a "Rico" law suit based upon the action of their son who took custody of his children in violation of a court order and successfully defended Patricia Smith on criminal charges in Texas for interference of child custody, and Chuck Smith, charged with interference with child custody;

Larry William Whitsey, the first reversal of a conviction in Texas based upon the improper use of preemptory challenges by a prosecutor;

Jack Davis, a man convicted of capital murder in New Braunfels, Texas, whose conviction was reversed because of prosecutorial misconduct and whose trial was impacted by Fred Zain, a serologist, who has been indicted for aggravated perjury in two states;

Richard Minns charged with federal passport fraud violations;

Ricardo Aldape Guerra, working with Scott Atlas, was convicted of capital murder and after fifteen years on death row the charges were dismissed because of the suppression of the in-court identification of a number of witnesses that were tainted by police and prosecutorial misconduct;

Victor Saldao, working with Scott Atlas, convicted of capital murder. Reversed opinion by the Court of Criminal Appeals in the Supreme Court of United States. Sentenced to death based on testimony stating that his race could be considered in answering the question regarding future dangerousness. A new punishment hearing was ordered by Federal District Court.

Mark Stennett, prosecution prohibited for possession of marijuana based upon the assessment of drug tax after his arrest;

Robert Angleton was acquitted by a jury of capital murder charges after being accused of hiring his brother to kill his wife;

Jose Deluna was acquitted of capital murder after presentation of expert testimony regarding eyewitness identification;

Vincent Rodriguez, along with Robert Fickman, was acquitted of aggravated sexual assault of his five year old niece;

Fitzroy Webb, a Jamaican charge with possessing marijuana in Federal court in McAllen was acquitted by a jury upon an argument that the venue was improper;

Charles Forshee, a former foster parent accused of smothering a two year old boy in his care by the two year old 's four year old brother was acquitted of murder charges;

Reginald Morris, convicted on three counts of intoxicated manslaughter, reversed and remanded to the trial court for a new trial.

Quannell X acquitted of felony evading detention charges and convicted of misdemeanor fleeing charges. On appeal, the conviction was dismissed because fleeing was not a lessor included offense evading detention with an automobile. Charges dismissed on appeal.

Jerry Cook acquitted of manslaughter by a jury after being accused of recklessly running over a 9 year old child with a school bus.

Stacey A. Mitchell, DNP, RN, SANE-A, D-ABMDI
6315-B FM 1488
PMB 220
Magnolia, TX 77354
713-703-7430

NATIONAL PROTOCOL FOR SEXUAL ASSAULT
MEDICAL FORENSIC EXAMINATIONS

The National Protocol was released by the United States Department of Justice, Office on Violence Against Women, in September of 2004. It can be located on the World Wide Web at: http://www.ncjrs.gov/pdffiles/ovw/206554.pdf.

The National Protocol seems to be a broad outline for state and local agencies to use in order to create a more detailed protocol for the area. In addition, the National Protocol does not thoroughly discuss how to handle pre-pubescent sexual assault patients.

TEXAS EVIDENCE COLLECTION PROTOCOL

The Texas Evidence collection protocol manual was published by the Office of the Attorney General in 1998. It can be found on the World Wide Web at: http://www.oag.state.tx.us/AG_Publications/pdfs/evidence_collection.pdf.

The primary purposes of the manual are to: (1) minimize the physical and psychological trauma; (2) maximize the probability of collecting and preserving evidence for potential use in the legal system; and (3) address important issues of current controversy surrounding the examination and the collection of physical evidence.

Chapter 420 of the Texas Government Code was revised in 1997 to include the evidence collection protocol kits. See 420.031. Within in that section it states that those individuals that collect evidence of a sexual assault or other sex offense "shall use a service approved evidence collection kit and protocol." 420.031(a). The evidence collection kit must contain (1) items to collect and preserved evidence of a sexual assault or other sex offense; and (2) other items recommended by the Evidence Collection Protocol Advisory Committee of the attorney general and determined necessary for the kit by the attorney general.

Although initially this section of the government code seems to be very exciting, after reading 420.031(f) the excitement will be short lived. Section (f) states, that the failure to comply with the collection procedures and requirements will not affect the admissibility of the evidence at trial. However, it might affect the weight of the evidence. Well, at least the law enforcement agency that requested the examination must pay the costs of the evidence collection kit.

ADULT PROTOCOL

Crisis Intervention:

The goals of the crisis intervention are to (1) reduce the immediate impact of the crisis; (2) to understand the precipitating circumstances; (3) assist the person to access healthy coping skills, capitalizing on strengths, support systems and resources in the community from which a base of reintegration may occur; and (4) to help the persons move beyond the crisis. The sexual assault patient as three needs that need to be addressed in the following order: (1) physical (medical); (2) emotional (psychological); and (3) legal.

Texas Crime Victims' Rights:

A victim includes an actual victim, close relative of deceased victim, or the guardian of a victim. Victims of crime have the right to the following:

  1. Receive adequate protection from harm and threats of harm arising from cooperation with prosecution efforts;
  2. have their safety considered by the magistrate when setting bail;
  3. advance notice of relevant court proceedings;
  4. request information from the peace officer about the defendant's right to bail and criminal investigation procedures in the criminal justice system, including plea agreements, restitution, appeals, and parole;
  5. information about the Texas Crime Victims' Compensation Fund and referral of social service agencies that provide other types of assistance;
  6. provide pertinent information concerning the impact of the crime to the probation department conducting the pre-sentencing investigation;
  7. Payment for medical examinations for victims of sexual assault by the law enforcement agency requesting the exam, the right to counseling regarding AIDS and HIV infection and medical tests;
  8. information about the parole procedures; notification of parole proceedings and of the inmate's release; and right to participate in the parole process by submitting written information to the Board of Pardons and Paroles for the inclusion in the defendant's file for consideration;
  9. Be present al all public court proceedings;
  10. A safe waiting area at all public court proceedings;
  11. prompt return of any property that is no longer needed as evidence;
  12. have the prosecutor notify an employer that the need for the victim's testimony may involve the victim's absence from work;
  13. Complete a Victim Impact Statement, detailing the emotional, physical and financial impact of the crime on the victim and to have the statement considered by judge at sentencing and by officials prior to the release of the offender.

Emergency Medical Services:

When EMS is first to arrive at the scene the following procedure is recommended:

  1. Basic ABCs;
  2. Crisis intervention for the patient and friends and family at the scene;
  3. Maintain integrity of evidence when possible?if something is moved or removed, make note to document with law enforcement:
    • Handle clothing as little as possible
    • Do not clean wounds if at all possible
    • Use paper bags for all articles collected
    • Bag each clothing item separately
    • Disturb the crime scene as little as possible

The first to arrive on the scene should convey to the victim the importance of seeking an immediate medical examination and the importance of preserving potentially valuable physical evidence prior to the hospital examination. Such evidence can be destroyed by showering, washing, brushing teeth, using mouthwash, smoking, eating, drinking, douching, urinating, or defecating. It is recommended that a change of clothes be brought to the hospital in the event clothing is collected as evidence.

EMS should advise the patient of the availability of support services and to be aware of safety if law enforcement is not at the scene. EMS should also transport the patient to a medical facility and on arrival provide hospital staff with any available information about the assault.

Law Enforcement:

The primary responsibilities of the responding officer are to:

  1. Ensure the immediate safety and security of the victim;
  2. Obtain all information necessary to complete the original offense report. This includes preliminary interviews of witnesses and the victim, the report, and the out cry witnesses. The elements of the crime should be listed in the original report.
  3. Secure all physical evidence from crime scene, including but not limited to, fingerprints, trace evidence, the victim's clothing, and that evidence which may be collected from the victim.
  4. Advise the victim of the availability of a designated sexual assault facility. If the victim wanted a sexual assault examination then transportation should be arranged.
  5. The responding officer should convey the importance of seeking an immediate medical examination and the importance of preserving potentially valuable physical evidence.

Explicit details of the sexual assault are not needed at this point in the investigation. A preliminary interview with the victim is necessary to relay information in order to apprehend the assailant. The preliminary interviewer should obtain all information necessary to complete the original offense report including:

  1. Offense committed including a description of what happened including the elements of the crime;
  2. When and where the assault took place;
  3. The extent of the injuries;
  4. Whether a weapon was involved;
  5. The identity or description of the offender;
  6. Where the offender lives and/or works;
  7. The direction in which the offender left and by what means, including a description of the vehicle;
  8. Names, addresses, phone numbers of any witnesses and other persons who can reach the victim;
  9. Victim's home, work, and third person contact phone number and addresses.

At the treatment facility, the responding officer should provide the hospital staff with any available information about the assault that may assist in the examination and evidence collection procedures. With the victim's permission, the officer may share pertinent information with the support services personnel.

Forensic Interviewing and Prosecution Procedures:

The legal needs of the victim are the primary responsibility of the law enforcement interviewer. The interviewer should be a compassionate, understanding and professional individual. It is not always necessary that the interview be of the same sex, but if requested, every effort to accommodate them should be made. Privacy is very important when interviewing. The interviewer should select a location that allows visual privacy, sound privacy, and will avoid interruptions.

The presence of an advocate during this interview is discretionary with the investigator. Prosecutor involvement in pre-indictment procedures varies in each jurisdiction; however, after indictment the following procedures are recommended for the successful prosecution of a sexual assault case.

Upon receipt of the case the prosecutor should review the indictment for accuracy of elements and spelling of names. The reports and statements should be read to determine everything known. Contact with the victim should be done as soon as possible after indictment.

  1. The prosecutor should introduce themselves and explain the responsibilities of the prosecutor's office;
  2. Advise victim of all procedures and court activities that will occur and the expected length of time each will take;
  3. Explain the role of the prosecutor and defense attorney;
  4. Advise the victim of what will be expected of them;
  5. Discuss the possibility of plea negotiation and a plea bargain;
  6. Advise the victim of the benefits available through the victim witness program, Crime Victim Compensation and the sexual assault center;
  7. Ensure that the victim is aware of their right to be present at all proceedings. There may be exceptions to this at the trial phase.

The prosecutor should conduct an in-depth personal interview to discuss the details of the offense and being to prepare the victim for trial. The presence of an advocate is discretionary with the prosecutor. Before disposing of the case, discuss the possibilities with the victim but advise them that the final decision is the State's. Contact the victim and inform them of the outcome.

Treatment Plan:

Facility & Personnel

It is advantageous for victims of sexual assault to seek both medical treatment and evidence collection from a health care facility because physicians usually do not have the evidence collection kits on hand. Texas has many areas in which no hospital is available for 100-200 miles. If that is the case, the facility used MUST have adequate equipment available to collect evidence and treat the injuries incurred. The facility should be chosen in consultation with local law enforcement and the local sexual assault program.

The use of a SANE (Sexual Assault Nurse Examiner) to do the forensic examination and collection is encouraged as an alternative to a physician. This is because the SANEs are registered nurses with special training in the forensic examination procedures and issues surrounding sexual assault. Children should be treated at pediatric unit, if available, because the staff is specially trained to treat them. The ideal situation is a local child advocacy center if your community has acquired one. The examiner should be specially trained in the examination, recognition and collection of evidence and administering to the special needs of a sexual assault patient.

Payment

Texas law requires that the law enforcement jurisdiction investigating the reported sexual assault be responsible for the payment of medical examinations and the collection of evidence in connection with the investigation or prosecution of a sexual assault. Eligible for payment: nurse examiner's or physician fee; ER fee; evidence collection kit cost; some diagnostic tests?x-ray, pregnancy tests, drug/alcohol screen, Chlamydia and gonorrhea culture. Those that are NOT eligible for payment: HIV testing, treatment for injuries and admission. Treatment costs must be covered by the patient's insurance, Crime Victim Compensation or other arrangements with the hospital.

Medical facilities designed to provide sexual assault treatment should have 24-hour emergency ability with a staff trained in sexual assault examinations. The ideal situation would be to include the availability of an on-call specialty physician if needed for consultation and contingency plans for cases requiring photographs and bitemark impressions.

Transfer

If a patient of sexual assault arrives at a hospital that is not designated or equipped to provide an assault examination, arrangements should be made to transfer the victim to the nearest designated facility. Attempts should be made to preserve evidence when examining, treating or transferring the patient. If there are medical or psychological injuries which must be treated immediately, this should be done at the initial receiving facility and a copy of all records should be transported with the patient. All medical facilities receiving federal funds are prohibited from refusing treatment or transferring any patient whose condition is not stable.

Medical Intake

The treatment of victims of sexual assault should be considered a medical emergency. Patients will be suffering from emotional trauma at the very least. A private location within the designated medical facility should be utilized for the preliminary consultation or admission with the patient. The same type of facility should be provided for any follow-up enforcement interview at the conclusion of the examination. While the patient is being treated the responding officer should wait someplace other than in the examining room.

General guidelines for the medical history:

  1. The history collection conducted by the examiner, must be held in a private setting which is fee of outside interruptions;
  2. The presence of an advocate during this time is discretionary with the examiner;
  3. The examiner should be empathetic and understanding of the patient's trauma, while at the same time efficient in collecting all information necessary for effective treatment;
  4. The examiner should establish rapport as an ally of the patient and try to cushion the patient from pressures by family, friends, and other medical personnel;
  5. The patient should be asked only those questions necessary to discover information that will assist the examiner in making a plan of care, diagnosis and treatment of the patient which includes evidence collection.

Reporting:

There is no law in Texas that requires an adult sexual assault patient to report the assault (other than those mentioned under the disabled and elderly sections). When a patient chooses not to report, sexual assault programs and law enforcement personnel might encourage the patient to file an Information Report or a Third Party Report. This information could be important to the investigation of other cases.

Texas law does require that any person who suspects child abuse must report it to either Child Protective Services of the Texas Department of Protective and Regulatory Services or the local or state law enforcement. These reports can be made in writing, by telephone or in person. Medical and Social services are bound by these statutes. Cases involving minors who are abused by someone other than a caretaker fall under the same procedures as an adult survivor.

Support Personnel:

The importance of having support personnel available to sexual assault survivors cannot be over-emphasized. Well-trained support persons can provide the immediate crisis intervention necessary when patients first enter the designated medical facility for treatment; they can assist hospital medical staff in explaining the necessity of medical and evidence collection procedures; and they can advise family members or friends of the patient who may be at the hospital. They are also able to provide support for the patient throughout the criminal justice process.

Patient Consent:

Obtaining a patient's written consent prior to conducting a medical examination or administering treatment is standard medical practice. Informed consent should be a continuing process that involves more than obtaining a signature on a form. When under stress, many patients may not always understand or remember the reason for or significance of unfamiliar, embarrassing and sometimes intimidating procedures. All procedures should be explained thoroughly as possible, so that the patient can understand what the attending medical personnel are doing and why.

When written consent is obtained, it should not be interpreted as a 'blank check' for performing tests or pursing questions. If resistance or non-cooperation is expresses, the medical personnel should immediately discontinue that portion of the process and consider going back to it at a later time in the examination. Have a sense of control in an important part of the healing process, especially at the early stages of the examination and initial interview. It is important to remember that consent to have a support person or advocate present must be given by the patient PRIOR to the introduction of that person.

The Elderly Patient:

Fear, anger or depression can be severe in older patients who many times are isolated, have no confidence or live on meager incomes. Elderly are physically more fragile and more likely to have life-threatening injuries. Hearing impairment and other physical conditions due to advancing age often render the patient unable to make their needs known. It is not unusual for responders to mistake this for confusion or distress.

Texas Human Resources Code, Chapter 48, Section 48.036 requires that "a person having reasonable cause to believe that an elderly (65 years or older) or disabled person is in the state of abuse, exploitation, or neglect (by a caretaker or one's self) shall report that information to Adult Protective Services." 1-800-252-5400.

The Special Needs Patient:

The special needs patient might have limited mobility, cognitive defects that impair perception of events, impaired and/or reduced mental capacity to comprehend questions, or limited language/communication skills to discuss what took place. Offenders are usually family members, caretakers, or friends that repeat abuse because the patients are unable to report the crimes.

The special needs patients and families should be given the highest priority. Additional time should be allotted for evaluation, medical examination and the collection of evidence. The physically challenged patient may be more vulnerable to a brutalizing assault and may need special assistance to assume the positions necessary for a complete examination and collection of evidence. Improvisation of the normal protocol may be indicated in some instances. If the patient is hearing impaired, arrangements should be made for interpreters.

Texas Human Resources Code, Chapter 48, Section 48.036 requires a person with reasonable cause to believe a disabled person is in a state of abuse, exploitation or neglect by a caretaker must report that information to Adult Protective Services. 1-800-252-5400.

Recommended Equipment:

In addition to the sexual assault examination kit the following may be needed:

urine specimen containers

Scissors

GC culture media

Woods lamp long wave UV light

Forms

Disposable powder free gloves

Microscope

Sharpened lead pencil

Pipettes

Forced air dryer (fan drive)*

Blood tubes

White table paper

Large paper bags

Scotch tape

Sterile test tubes

Catheter

Colposcope

Spot light

Marking pens

Sterile water for irrigation

Manila envelopes (preferred)

Vaginal speculum (sm., med., lg.)

Hemocult slide

Chlamydia media ruler (w/ cm measurements)

*for specifications on the dryer contact: Office of the Attorney General, SAPCSD

Sexual Assault Examination Kit Contents

  1. crush proof box
  2. white envelopes
  3. 3 frosted-ended glass slides with new/unused pap smear mailers
  4. 2 small narrow tooth combs
  5. purple-top blood tubes; 1 red- 10cc blood tube
  6. nail file or pick
  7. 4 swabs for each (minimum swabs per area)(Total 20)
    1. Vaginal
    2. Oral
    3. Rectal
    4. 2 body surface areas
  8. 2 plain envelopes for any other evidence that needs to be included

Kits should be packaged in a crush proof box for transportation to the lab. Specimens must be sealed in paper or cardboard containers because moisture remaining in the evidence items will be sealed in, making it possible for bacteria to quickly destroy biological fluid evidence. Biological evidence should never be packed in plastic. All items should be actively air-dried, without heat, before packing.

Every item submitted to the forensic lab must be labeled as to site (vaginal, oral, rectal, penile, etc.), name of patient, date and examiner's initials.

Evidentiary and Medical Examinations:

A physical examination should be performed in all cases of sexual assault, regardless of the length of time which may have elapsed between the time of the assault and the examination. Internal injuries are often ignored by patients that could indicate serious physical trauma. Also, there may be areas of tenderness which develop into bruises and are not apparent at the initial examination.

If the assault occurred within the seventy-two hours prior to the examination, an evidence collection kit should be used. Seventy-two hours is only a guideline and each case should be evaluated individually.

If the assault occurred more than seventy-two hours before the examination, the evidence collection kit may not be necessary. Trace evidence is unlikely to be present, but bruises, lacerations, photographs and bitemark impressions, and statements may still be gathered. These observations and findings should be documented on the report form.

When a forensic examination is performed, it is important that the medical and evidence collection procedures be integrated throughout. This coordination of medical and forensic procedures is crucial to the successful examination of sexual assault survivors. When evidence is collected from the oral, female sexual organ, or anal orifices, if cultures for sexually transmitted disease are needed they should be taken immediately following the collection procedures.

Attending Personnel

Only medical personnel, translators and specially trained advocates (with the consent of the patient) should be present in the examining room during the examination. Every person in the room could be a witness and called to testify in court.

It is not necessary for a law enforcement representative to observe evidence collection procedures for chain of custody; this is the function of the medical personnel.

NOTE: Many of the evidence collection issues apply equally to adult and child patients and are discussed below.

Preserving the Integrity of Evidence

The custody of the evidence collection kit and specimens it contents must be accounted for from the moment the evidence is collected until the moment it is introduced at trial. Anyone who handles evidence should label them with their initials, the date, source of specimen, the name of the attending medical personnel and of the patient. All outside containers should be sealed with an integrity seal.

DNA Examination of Sexual Assault Evidence

Analysis of cellular biological materials for DNA (Deoxyribonucleic Acid) enhances identification possibilities of criminals. DNA (chromosomal material) contains the genetic code and a sufficient sample could help to identify an individual. DNA is found in biological materials containing a cell nucleus; thus, spermatozoa can be used for identification. DNA can also be identified in blood, saliva, hair with root with root sheath, tissue and bone marrow.

The technique of sample taking and the number of samples specified in the protocol should leave sufficient material for additional DNA analysis if needed. The investigating agency should always contact the DNA laboratory for specific sample requirements.

Seminal plasma is useful when there is an absence of spermatozoa to identify and individual. Most of the genetic markers detected in semen are located in the seminal plasma. These tests are done by directly studying the liquid extracts made from swabs and other suspected semen stains. In addition, seminal plasma is produced in the ejaculates of all males, vasectomized or not.

The lack of spermatozoa is not conclusive evidence that an assault did not occur: it only means that spermatozoa may have been destroyed after being deposited or that it may never have been present. Many sexual assault offenders (up to 50%) are sexually dysfunctional and do not ejaculate during the assault. Some offenders wear condoms, have low sperm count (frequent with heavy alcohol and drug use), and use objects other than their penis. Also, there might be significant time delay between the assault and the collection of the specimens

Clothing Evidence:

Clothing with often contain the most valuable evidence in a sexual assault case because they serve as a surface for foreign matter, debris, fibers, hair, blood, saliva, and semen. Often drainage of the ejaculate from the vaginal or anal cavities will collect on panties/underwear (especially with a child patient). Bacterial breakdown occurs at a slower rate in body cavities. After three to six hours have past it is more likely that usable semen will be found on undergarments than from swabs. Children's undergarments are very important and parents should be encouraged to bring them to be examined. In addition, damaged or torn clothing may be significant. Thus, any item of clothing worn during the assault or prior to the examination may need to be collected.

Keeping the garments separate from each other allows the forensic scientist to reach certain pertinent conclusions regarding reconstruction of criminal actions. Therefore, each garment should be properly labeled and placed separately in its own paper bag to prevent cross-contamination from occurring. Law enforcement should get the patient's consent to collect personal items that contain possible evidence.

If it is determined that the patient is not wearing the clothing from the time of the assault, attending medical personnel should determine the location of the original clothing. This information should then be given to the investigating officer so that arrangements can be made to retrieve the clothing before any potential evidence is destroyed. Any briefs, trunks, sanitary napkins, panty liners, diapers or tampons worn by the patient for the period of up to twenty-four hours after the assault should be obtained as they may contain semen or other evidence.

Collection Procedures

The patient should disrobe over a white cloth or sheet or paper. It may be necessary to cut off items of clothing, be sure not to cut through existing rips, tears, or stains. Any foreign materials should be collected and placed into small paper envelope, properly labeled and sealed with cellophane tape. If the patient consents, the clothing should be then collected and packaged in accordance with the following procedures:

  • After air drying items they should be placed into small paper bags.
    • Disposable diapers mold very easily and should be actively air-dried particularly well and should be placed in a paper bag without folding the item on itself. Diapers should be submitted as expeditiously as possible.
  • Any wet stains, such as blood or semen, should be allowed to air dry before being placed into paper bags.
  • If, after air drying, moisture is still present and might leak through the paper bag, the labeled and sealed clothing should be placed in a larger paper bag with the top of the second bag left open, which will alert the crime lab that wet evidence is present and enable them to remove the clothing to avoid loss of evidence due to putrefaction.
  • A locked fan-driven dryer may be used to completely dry small articles of clothing.

Swabs and Smears:

Smears are made to allow the forensic analysis to test microscopically for the presence of spermatozoa. If they are present they can identify the seminal plasma components to identify the donor based on genetic markers. Four swabs should be used when collecting specimens from body orifices and additional swabs may be needed for medical purposes. For forensic purposes, all swabs should be cotton and used together and then the samples should be smeared onto one slide. Air-dry all swabs and place them in a cardboard tube for inclusion in the kit when it is submitted to the lab.

Because there can be leakage of semen from the vagina or penis onto the anus, it is recommended that the patient be encouraged to allow examination of all three orifices. The right of refusal also will serve to reinforces a primary therapeutic principle?that of returning control to the patient.

When taking swabs, special care should be taken to see that the individual collections are not contaminated, such as secretions from vaginal to rectal or penile to rectal. If patients must use the bathroom before collection of specimens, they should be instructed to do so in a bedpan.

A pencil should be used when labeling frosted-end slides to lessen the chance of labeling information will be come smudged. When packaging evidence, the examiner may use a cardboard tube, an envelope with all openings (including corners) sealed with tape to prevent exit of any evidence. Another way to seal evidence is to pharmaceutically fold paper around the evidence and then place the evidence and paper in an envelope and seal and label it. When it is necessary to slightly moisten swabs for the comfort of the patient, sterile water is the preferable liquid; saline is acceptable when distilled water is not available. When saline is used, it should be noted on the label.

Oral Collection Process

The oral smear can be as important as the vaginal or rectal smears in recovering spermatozoa/seminal fluid from recesses in the oral cavity. This test should be done first, so the patient can rise out their mouth. Oral washings are utilized; the oral swabs and smears should be performed prior to the washings.

The oral smear is prepared by using four cotton swabs and swabbing the mouth. Attention should be paid to those areas in the mouth, such as between the upper and lower lip, gum and along the gingival where seminal material might remain for the longest amount of time. The material from the swab should be gently rubbed onto a glass slid which has been labeled in pencil and contain the word "oral" to indicate the source. The slide should be placed in a cardboard mailer and allowed to air dry before sealing. Slides should not be fixed or stained.

When the oral swabs have air dried, they should be inserted into a cardboard tube. The end flaps should be sealed with cellophane tape, but care must be taken not to cover the air hole on the tube with the tape. If a cardboard tube is not available, a plain, white uncontaminated envelope can be substituted and a completed white label should be affixed. The patient should rise out their mouth with clear water and should not eat, drink, nor smoke for thirty minutes. After thirty minutes, a saliva sample will be taken to check for secretor status.

Vaginal/Collection Procedures

Vaginal/cervical specimens are collected on four cotton swabs by swabbing the vaginal vault and cervical cuff, but they are retained in different ways. Once specimen is air dried smear on a frosted-end slide from the swabbing and the second is retained on the cotton swabs themselves. The frosted-end slide must be properly labeled and include the word "vaginal." The smear should be labeled in pencil and an effort should be made to leave space for the lab to make their marks on the smear. The glass slide should be placed back into the mailer and air-dried before sealing and the slides should not be fixed or stained.

The mailer should then be sealed all around with tape. Vaginal cotton swabs must be allowed to air dry before placing them in cardboard tube (if tube not available then white uncontaminated envelope can be used). It then should be labeled and sealed as done for the oral swab.

If the assault occurred in the more recent past or the patient has douched prior to the specimen collection, serious consideration should be given to obtaining an endocervical specimen by cotton-type swab and/or pipette aspiration. This should be properly labeled and packaged as other specimens.

A check for any contraceptive or sanitary device that could be left in the vagina should be done. If a sponge or diaphragm is removed before the prescribed time, morning after treatment should be considered. Any device that is removed should be air dried, packaged in an envelope and labeled as to contents, source, name, date and personnel.

In special cases a vaginal wash or aspirate will be used instead of cotton swabs. No more than 1 cc of normal saline/sterile water should be used if vaginal wash is used. The dilutant should be placed on a cotton swab, air dried and then properly labeled and packaged as other specimens. Semen-free vaginal swab may have to be collected from the patient at a later time in order to interpret genetic markers in the blood.

Immediately following this procedure, the pelvic examination should be performed and medical cultures taken, if indicated.

Penile Collection Procedures

For the male patient, the presence of saliva on the penis could indicate oral-genital contact. The presence of vaginal secretions could help corroborate that the penis entered the vaginal vault. Although vaginal secretions cannot be identified miscroscopically or chemically, genetic markers can be detected.

To properly collect a penile smear there should be two lightly moistened cotton swabs to swab the external surface of the penile shaft and glands. All outer areas of the penis and scrotum where contact is suspected should be swabbed. They should not swab the inside of the penile opening, because the tests are not to diagnose STD's. The examiners should gently roll the swab over a glass slide and place in a mailer; the examiner should not fix or stain the slide. Once air dried they should be placed in a cardboard tube or a white uncontaminated envelope. It is at this time that swabs should be made for possible STD's.

Anal Collection Procedures

For the anal smear, four cotton swabs should be swabbed directly on the rectum. Perianal swabs can be collected as warranted. After the swab is prepared it should be placed in a cardboard mailer, allowed to air dry, and then labeled and sealed. It is at this time that any additional anal examinations or tests should be considered.

Other Dried Fluids Collection Procedures

Saliva, blood and semen are the most common secretions deposited. It is important for the medical team to ask where body fluids might be deposited. One swab should be taken for each secretion and the location of each collected specimen should be indicated on the body chart. If there is crusted material it should not be swabbed, but rather, it should be scraped.

Bitemark Evidence:

Bitemark impressions are similar to fingerprint evidence in that they can be compared to the teeth of a suspect. At the minimum, collection of saliva and photos should be taken. Collection of saliva from the bitemark should be made prior to the cleansing or dressing of a wound. If the skin is broken, only the area directly surrounding the bitemarks should be swabbed. It is important that photos are taken properly; local law enforcement should be contacted for instructions.

A ruler should be used to document the size of the bitemark in the photograph. It is also vital to have three-dimensional casts made and when possible a forensic odontologist or dentist should examine the bitemark, make the cast and document findings.

Collection Procedures

Saliva from a bitemark area should be collected by a lightly moistening a swab with sterile water and gentling swabbing the area. Law enforcement should be consulted prior to taking any photographs. To demonstrate the size a colored ruler should be placed adjacent to, but not covering, the bitemark and the photographed perpendicular to the injury. The bitemarks should be documented on the body charts.

Hair Evidence:

Hairs can be miscroscopically compared, but only head and public hairs will have enough individual characteristics for analysis. Hair characteristics are affected by many factors, such as, diet, hair care products and stress.

Collection Procedures: Combing

When evidence of semen matted on hair, it is collected by clipping around the matted areas and placing in a white paper envelope and properly labeled "matted hair sample from head (pubic) area." The top, back, front and sides of the patient's head hair should be combed over a piece of paper to collect all loose hairs and fibers and marked "head hair combings." A second comb should be used to collect loose hairs and fibers from the pubic area over a piece of paper or a paper towel. Combing should be done vigorously. Patients may prefer to do the combing themselves. Both combings should be placed in an envelope, labeled and sealed.

Collection Procedures: Pulled Standards

Each elected D.A. should determine whether comparison hair evidence should be collected and inform the respective medical and law enforcement personnel. The patient must be given informed consent for pulled hair standards to be collected. The combing of the pubic and head hairs will remove foreign objects to compare to pulled hairs. Pulled hairs must contain roots.

Ten to twenty head hairs should be pulled from each of the following areas: five from back, top, front, left side and right side. The same number of samples are required for the pubic region, but to reduce discomfort the hairs should be plucked two to three at a time. If forceps are used this should be noted on the envelope as well as the absence of pubic or head hairs.

Fingernail Scrapings:

Trace materials, such as skin, blood, hairs, soil and fibers can collect under the fingernails. The patient should be asked if they scratched the offender's face, body or clothing. If so, the nails should be scraped using an orange stick, plastic stick, small cotton swab with sterile water or any appropriate hard pointed implement. The swab would need to be air dried prior to packaging. This procedure is at the medical and law enforcement personnel's discretion.

Patient's can perform the scrapings themselves, but it is important that each hand be scrapped over different pieces of paper. The paper should be folded up along with the pick and they must be labeled left and right and then sealed.

Whole Blood Specimen:

Semen found on clothing or in body cavities is likely to be mixed with body fluid; thus, a blood sample must be collected from the patient to determine the contribution of their genetic markers or unidentified stains. Only one purple top should be included in the kit for evidence collection purposes.

For adults, five to seven milliliters of blood should be collected in a purple-top tube. The tube should be completely filled and a white label affixed.

Saliva Specimen:

A dried sample of know saliva and the known liquid blood sample are used to determine ABO secretor status of the patient. It is important that this specimen not be contaminated by outside elements. Therefore, the patient should not smoke or have anything to eat or drink for at least thirty minutes prior to this procedure.

When there is trauma to the mouth the specimen can be obtained from under the arm by first cleaning the area, waiting thirty minutes, and placing a swab in axilla for twenty to thirty minutes. This should be noted on the evidence collection form. Two swabs should be used in the mouth and saturated with saliva. The swabs should not be chewed on and the patient should remove the swabs with their own fingers. The swabs must not be removed by anyone other than the patient unless a hemostat or a clean gloved hand is used. When dry they should be inserted into a ventilated cardboard box, sealed and labeled with the source, date, patient and examiner.

Health Safety Precautions:

Universal precautions should be utilized when handling clothing and body fluids. Plastic gloves, masks and eye protectors are recommended.

Sexual Assault Forensic Examination:

During the examination the following information should be obtained from the patient:

  1. Vital signs and other initial information
  2. A brief description of the details of the assault. This should be recorded accurately, briefly and in the patient's own words.
  3. Gynecological history information including menstrual history, pregnancy history and contraceptive history should be evaluated and recorded.
  4. All trauma should be recorded, such as bruises, abrasions, lacerations, bitemarks, blood or other secretions, with particular attention to genital and rectal area of both male female patients.

Sexual Assault Forensic Examination Form:

The following is taken from the SANE Council, International Association of Forensic Nursing, 1996.

STANDARD II. DATA COLLECTION

The SANE systematically collects data as indicated. The data is recorded, communicated, and stored in a retrievable manner.

Rationale

Sources of data include the interview and physical assessment. The nurse modifies collection techniques to accommodate the needs of various age groups, developmental levels, ethnic and cultural backgrounds, and value systems. Forensic data is available to participants in the investigative and legal process.

Structure Criteria

  1. A data collection method is used which provides for:
    1. standardization and systematic collection of data,
    2. separate forensic and medical data,
    3. confidentiality,
    4. assessment of injury, deviations of normal and abnormal, and
    5. equipment for collecting data.
  2. The practice setting allows for modifications of data collection process as needed.
  3. The record keeping system provides for concise, accurate, and appropriate recording.
  4. The agency has in place a system of collection and storage such that retrieval of data for law enforcement or other disciplines is facilitated.

Process Criteria

The SANE:

  1. collects data with the informed consent of the victim;
  2. uses data sources such as history, physical assessment, and law enforcement reports;
  3. records data in a standardized, systematic, and concise form; and
  4. plans interventions within the medical/nursing protocol of the agency.

Outcome Criteria

  1. The client participates in the data gathering process.
  2. The client validates data collected.
  3. Complete data is recorded in a standardized and retrievable form.
  4. SANE interventions are consistent with the policies, procedures and protocols of the practice institution and the nursing profession.

The following information should be included on the form.

  1. Date and time of Assault/Date and Time of Examination and Collection.
  2. Number of Offenders.
  3. Action of Patient Before and Since Assault. It is important for the analyst to know what, if any, activities were performed prior to the examination, including bathing, urination, defecation, brushing teeth, and changing clothes, any of which could help explain the absence of secretions or other foreign materials. Failure to explain the circumstances under which semen could have been destroyed might jeopardize criminal prosecution if apparent contradictions can not be accounted for in court.
  4. Contraceptive/Menstruation Information.
  5. History of Assault.
  6. Physical and Examination Details. It is essential to know the location and extent of the injuries sustained by the patient.
  7. Date and Race of Last Voluntary Coitus.
    A mixture of semen from an offender and the patient's previous male sexual partner could lead to blood grouping results which, if unexplained, could conflict with the patient's own account of the assault. Patients are asked if they engaged in voluntary sexual intercourse with a male within a week prior to the assault. If so, patients are then asked the date and race of the contact in order to help determine the possible significance of semen remaining from the prior sexual contact.
    Legally, the patient's prior sexual activity and/or date of last coitus with a person other than the offender, is information which should be protected from open court by the Texas statute. This person's identity is not relevant either to the medical examination or for the initial findings of the crime laboratory and should not be sought at time of initial examination. The patient should, however, be instructed to remember the identity of that person and how to reach him should a blood or hair sample be needed later. For medical purposes, evaluate the date of the last voluntary coitus in conjunction with the patient's menstrual history to determine the possibility of a pre-existing pregnancy.
  8. Communicable Disease of Risk to Crime Laboratory Personnel.
    Communicable diseases of risk to laboratory analysts include but are not limited to chlamydia, syphilis, gonorrhea, hepatitis, tuberculosis, herpes and AIDS. Due to not having conclusive information at the time of the examination, universal precautions should be followed by all personnel when handling any specimens.

Medical Examination Documentation:

Body Diagrams/Photographs

Photographs of sexual assault patients should not be the only form of documentation. Instead, a drawing of the human figure should be used to show the location and size of the injury as well as a written description of the trauma. Photographs should be limited to those instances where there is an opportunity to produce clear pictorial evidence of injury, such as bruises or lacerations. Also, if photographs are taken, they should be done only with the specific consent of the patient.

Further, photographs should not be taken of the genital areas unless the patient specifically gives permission for this procedure. Again, drawings accompanied by accurate written descriptions can be as effective in court as photographs.

It is vital that all photographs be taken by a competent camera operator, preferably of the same sex as the patient, and that a ruler and color chart is used to indicate the size and nature of each injury. If the examiner is not the one taking the photographs, the examiner should remain in the room while the photographs are being taken.

Terminology

If testimony is needed, a thoroughly completed and legible examination record and accompanying body diagram will assist medical staff in recalling the incident. When gathering information necessary to perform the medical and evidentiary examination, the attending medical staff must be careful not to include any subjective opinions or conclusions as to whether a crime occurred. The chart should reflect that the sexual assault examination was conducted and should include any pertinent forensic/medical findings, but not terms such as "rape" or "sexual assault."

Medical personnel should not ask for details beyond those necessary to perform the medical and evidence collection tasks; it is the responsibility of the follow-up investigator to ask the more detailed questions.

Toxicology Blood/Urine Screen

Blood/urine screens for determining toxicology should only be done in the following situations in cases of sexual assault:

  1. if the patient or accompanying person (such as a family member, friend or police officer), states that the patient was involuntarily drugged by the assailant(s), AND/OR
  2. if in the opinion of the attending medical personnel, the patient's medical condition appears to warrant toxicology screening for optimal care.

Great care should be exercised to ensure that toxicology screens are not routine for survivors of sexual assault.

Prophylactic Treatment for Sexually Transmitted Diseases and Pregnancy:

All patients should be given information about the possibility or contracting STD's. A follow-up exam and test six weeks after the assault took place should be encouraged. Prophylactic treatment for STD's should be offered routinely at the initial exam. A thorough history should be taken to determine the patient's method of birth control prior to, during and after the assault.

Procedures for Release of Evidence:

Preliminary Procedures

The original copy of the sexual assault forensic examination form is to be maintained at the facility where the exam was completed. The second copy is for the law enforcement officer to take and the third copy is included in the kit. The information is filled out on the top of the kit just prior to sealing it with red or orange evidence tape at the indicated area. Paper bags are to be placed next to but not inside the complete kit. All medical and forensic specimens collected during the sexual assault examination must be kept separate in terms of collection and processing.

Transportation of Evidence

Under no circumstances should patients be allowed or expected to handle evidence after it has been collected. Kits should be taken directly from the medical facility to the lab where the contents will be frozen until processed.

Release of Evidence

Evidence collection items should not be released from a medical facility without the written authorization and consent of the informed adult patient. An authorization for release of information and evidence form should be completed, making certain that all items being transferred are checked off. One copy of the release form should be kept at the medical facility and the other copy given to the law enforcement representative. This representative should also print and sign her or his name on the cover of the collection kit and bags of clothing and fill in the time of transfer.

Non-authorization of Release

They should inform the patient that the release of evidence is not a commitment to prosecute. If consent is not initially received, kits and clothing bags can be stored on a temporary basis in a locked, secure area. To retard spoilage, kits should be refrigerated for up to two weeks, if possible, before being destroyed. If refrigerated storage is not available, the evidence should remain sealed and be placed in a secure cool dry place. Hospital personnel and/or the patient's advocate must inform patient of the length of time the evidence will be held prior to destruction, thereby providing the patient with an opportunity to reconsider authorization for release within a reasonable period of time after the initial hospital examination.

Post-Examination Information:

Information Brochures

Before leaving the hospital, the medical facilities portion of the information booklet mentioned above should be completed. The type and dosage of any medication prescribed or administered should be recorded in the section provided. Patients should be encouraged to obtain follow-up tests, within four to six weeks after the initial hospital visit. It is vital that both written and verbal information be provided.

Follow-up Contact

Any further contact with sexual assault survivors must be carried out in a very discreet manner.

Clean-up/Change of Clothing

If garments have been collected for evidence purposes and no additional clothing is available, arrangements should be made to insure that no patient has to leave the hospital in an examination gown. When police officers transport victims from their homes to the hospital, officers should be instructed to advise survivors to bring an additional set of clothing with them in the event any garments are collected.

Law Enforcement Investigative Interview

Large metropolitan areas have investigators or detectives whose primary duties are sexual assault investigations. These officers do not answer the initial call but rather enter the case after the responding officer has written her/his initial report. At the hospital, the investigator should talk with the responding officer and/or attending hospital staff to obtain information about the assault and the condition of the patient.

The investigator will conduct the follow-up interview after the patient already has been interviewed by the responding officer and the hospital staff. The details provide information that the investigator must have in order to get an accurate picture of the circumstances surrounding the case and to prepare a report for the prosecutor.

Transportation

Transportation should be arranged when the patient is ready to leave the hospital.

CHILD PROTOCOL

Sexual abuse of children falls into three major categories:

  1. Sexual abuse of a child by a family member, caretaker, or other person known to the child.
  2. Sexual abuse of a child by using pornographic materials and exploitation.
  3. Sexual abuse of a child by a stranger, many times involving kidnapping and/or the use of a weapon.

The abuser in intra-familial child sexual abuse is related to the child survivor through blood, marriage, adoption, or common living arrangement, and generally involves the following relationships:

  1. The abuser is legally related and a member of the child survivor's immediate family (natural or adoptive parent, sibling).
  2. The abuser is a member of the child survivor's extended family (e.g., grandparent, aunt/uncle, cousin).
  3. The abuser is not legally related but is seen by the child as part of the immediate family because the abuser lives or has daily contact with the family.

The abuser in extra-familial child sexual abuse is not considered a part of the child's family; These relationships include, but are not limited to the following:

  • Neighbor
  • Day care/school employee
  • Clergy
  • Scout leader
  • Friend of family
  • Babysitter

Many children are sexually abused in some way over a period of years. Long-term abuse in intra-familial situations may begin when the child is three or four years of age or younger, and continue well into adolescence or even after the child leaves home.

Secrecy associated with the sexual activity, or threats of personal harm to the child or to the child's family, may cause the child to sense that something is wrong. However, unless educated about proper and improper touching and the importance of telling someone when inappropriate behavior occurs, many children do not understand that they should report the incident(s), or are afraid to do so. Even when the child is quite verbal, the listener may dismiss the story as make-believe or accuse the child of lying. When no action is taken to protect the child from further abuse, the child may decline to initiate the subject again.

Treatment Plan:

Facility

Most sexually abused children do not receive immediate medical attention. A multi-disciplinary team that consists of the examiners for the physical examination, law enforcement officers, Child Protective Services and an advocate should be available on an on-call basis. On-call personnel should consist of an obstetrician/gynecologist, pedi-SANE, and other specialists. Each team member must be trained in the management and psychodynamics of the sexually abused child.

Intake

When the child is accompanied by an officer, the officer should be directed immediately to the emergency/pediatric department so that a brief history of the assault can be provided to the attending medical staff. If the child's parent or guardian is present, provide any additional information about the events and their medical history which should be shared with the examiner.

It should be determined if it is an acute or chronic problem. If it is chronic, the child has been interviewed all day and the child has no immediate trauma, the examining team may want to delay the exam until the following day. If the abuse is suspected to be by a family member, provisions should be made to keep the child safe overnight. A detailed protocol should be developed to cover this eventuality by the local task force on child sexual abuse.

Reporting

Texas law (Family Code, Section 34.01 amended 1987) states that "Any person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by a person responsible for the child's care, custody, or welfare shall report in accordance with Section 34.02 of this code."

Support Personnel

Under no circumstances should the child be left alone.

Consent

Consent to conduct a medical examination and collect physical evidence should be obtained from parents of all children under the age of eighteen. An examination may be done in cases of suspected child abuse or suicide prevention with the consent of the minor only, court order or on the opinion of the physician in emergencies. Examination may not be done if the child is sixteen or older and refuses to consent or if consent is refused by a court order. (Family Code, Sections 35.03 (g), 1985 and 35.04, 1975).

Child Interviews

The following guidelines will assist in the process of the first person to interview the child about this event.

Many times the child's inability or reluctance to answer these types of questions is due to embarrassment, shyness, a fear of being thought of as a tattletale or disloyal, or simply due to a lack of understanding of the question itself. With children, to a much greater extent than with adults, interviewers must be aware of the long-term ramifications of their questions. While the immediate goal is to elicit the clearest possible information from the child, the interviewer should be aware of her/his own feelings about child sexual abuse and not communicate any attitudes which might create or increase the child's trauma.

Indicators of child sexual abuse perpetrated by a family member or other trusted individual, however, are not always concrete. Therefore, hospital staff should be alert for signals from the parent, which may indicate sexual abuse, including but not limited to the following:

  1. the child stays inside the house more frequently
  2. the child does not want to go to school or stays at school for prolonged hours
  3. the child cries without provocation
  4. the child bathes excessively
  5. the child exhibits a sudden onset of bed wetting or fecal soiling.

The child's emotional state is a vital part of the interview process. Topical questions about family, school, television and everyday events helps to establish rapport prior to the child being asked to describe what happened. One of the goals of the protocol is to prevent extensive interviewing of the child.

It is all right to ask children why they think they are there and who hurt them. Any answers and information that is volunteered by the child should be recorded. It is best not to do a detailed interview at this time. If the child has been interviewed previously, the history of the incident can come from that source.

Medical History Interview:

The most experienced professional medical staff person available should conduct a preliminary medical history interview of the child. The purpose of this interview is to obtain the information necessary to conduct a proper medical examination and possible collection of physical evidence. A more thorough, detailed investigative history will be obtained by law enforcement and child protective agency personnel at a later time.

The interview must be in a private setting and must be free from interruptions. The interviewer should explain their need to know what happened and what procedures will be done. The interviewer should also use simple terms, including the child's vocabulary for body parts, acts and people. Ask only what is needed to conduct the exam. If the child should volunteer information or answer questions, that information should be written down.

Attending Personnel

As few persons as possible should be present during the medical interview/evaluation or examination/evidence collection process. Attending personnel should consist of the examining medical personnel and an authorized support person. Those persons involved in the investigation, such as law enforcement or child protective agency representatives, should not be in attendance during these procedures.

Presence of Parent/Guardian

This interview should be conducted in a private area, and information regarding sexual history, menstrual history and use of birth control should be recorded. Encourage the child to be interviewed alone (without parent or guardian) if it does not cause too much stress for the child. The child and their parents should be informed about the physical examination by the medical personnel and what specific lab tests will be done, the purpose of each test, and when the results will be available.

Under no circumstances should the interview be held in the presence of a parent/guardian who is suspected of perpetrating the abuse.

Evidence Collection:

Regardless of when the assault or last sexual contact might have occurred it is vital that an examination be performed and that all paperwork is completed, despite whether evidence specimens are collected. Anytime that a child reports abuse, an examination should be done regardless no matter how long it has been since the last incident.

If the last sexual contact took place more than one week prior to the medical visit, the percentage of cases where trace evidence is still present on the child's body or clothing will be significantly low. A careful evaluation of the case must be made to decide if evidence collection procedures should be implemented.

If the last sexual contact took place within the prior week or if the time frame could not be determined, then evidence procedures should be implemented according to the instructions given for adults, but with the following modifications:

  • Drawing blood is rarely needed in young children but if the need is present, the amount of blood collected for forensic purposes should be limited to only 3 milliliters.
  • If it is determined that simultaneous use of two swabs would be traumatic, swabs should be obtained one at a time. For forensic purposes, cotton swabs should be used.
  • For the young traumatized female evidence specimens can be obtained by gently swabbing the exterior vulvar areas, using a slightly moistened 2 X 2 gauze. Another technique would be to use the distal 4" of a number 12 bladder catheter through which is passed the proximal 4" of butterfly I.V. tubing to which is attached a 1 cc tuberculin syringe with 0.5 to 1 cc of distilled water.

Medical/Evidentiary Examination:

The medical examination should consist of a general physical examination, a genital examination, and where appropriate, the collection of physical evidence. To minimize loss of evidence, the child should disrobe over a white cloth or sheet of paper. If a child cannot undress on their own, and due to their condition it is necessary to cut off items of clothing, be sure not to cut through existing rips, tears, or stains.

Any foreign materials found should be collected and put into a small paper envelope, properly labeled and sealed with cellophane tape. If the survivor consents, the clothing should then be collected and packaged in accordance with the following procedures:

  • After air drying items, such as underpants, hosiery, slips or bras, they should be put into small paper bags. Items such as slacks, dresses, blouses or shirts should be put into larger paper bags.
    • It is important to remember that infant diapers may also be valuable as evidence because they may contain semen or pubic hairs. Disposable diapers should be actively air-dried particularly well and should be placed in a paper bag without folding the item on itself.
  • Any wet stains, such as blood or semen, should be allowed to air dry before being placed into paper bags. Each piece of clothing be folded inward, placing a piece of paper against any stain, so that the stains are not in contact with the bag or other parts of the clothing.
  • If, after air drying, moisture is still present on the clothing and might leak through the paper bag during transportation to the crime laboratory, the labeled and sealed clothing bags should be placed inside a larger paper bag with the top of the second paper bag left open. A label should be affixed to the outside of the second paper bag, which will alert the crime laboratory personnel.

In preparation for the examination, the child should be completely undressed and be wearing an examination gown. Help with this process can be provided by the attending nurse, support person and/or parent. Special considerations which will increase the child's sense of well-being include the following:

  1. Each step in the examination process should be explained to the child prior to its being performed to minimize additional trauma to the child. The presence of unfamiliar equipment, most of which can be scary in appearance, and the necessity of darkening the examining room in order to conduct the Wood's Lamp procedure can be frightening.
  2. It is important for the examiner to be aware that children interpret statements literally. For example, statements such as "I'm doing cultures to see if there are bugs in there!" should be avoided. Children may think this means they are dirty or have something 'alive' inside them.
  3. The examiner should reinforce the idea that the child is not 'damaged goods', or irrevocably marked in some obvious way.
  4. The child should not be restrained in order to do the examination. If the child is visibly upset, the examiner should determine what measures are to be taken to reduce their anxiety. Some cases may require the use of sedation but anesthesia is not recommended.

Medical Examination:

General Information

An immediate assessment of the child's status must be made to determine the presence of any significant vaginal, rectal, penile or other major trauma/sites of bleeding. The location of these injuries should be recorded on drawings of the young female and male body. Any specific explanations given by the child for the injury should also be included in the medical record, using the child's exact words if possible. Some medical indicators of child sexual abuse are:

  1. the presence of sexually transmitted disease
  2. unexplained vaginal bleeding, discharge or trauma
  3. inappropriate sexual behavior for the child's age
  4. suspicious stains or blood on the underwear
  5. lesions, bruising or swelling of the genital area not consistent with history
  6. pain in the anal or genital area
  7. unexplained pain or soreness in the abdominal area

The medical examination of a sexually abused child may, in many cases, be negative. Nonetheless, the lack of any specific injury in no way detracts from the likelihood that the abuse occurred. A lack of physical finding may be due to many factors, such as the degree of force used, the type of activity perpetrated upon the child and the diagnostic skill of the examiner. Prior to the full examination, a Wood's Lamp should be passed over the child. Whenever seminal fluid is present, it may fluoresce a characteristic light blue color. The presence of any bruises, abrasions, lacerations, burns or other dermatologic lesions should be recorded. An attempt should be made to estimate the age of the injury; i.e., noting the color of a hematoma and the degree of healing of an abrasion. Any fractures, loose or absent teeth, grab marks, suction or bitemarks should be recorded.

Genitalia

As a point of reference, it is often helpful to estimate the level of sexual maturation of the child. The following is a description of the specific exam for the pre-pubertal child. Alterations may be indicated by maturity.

Examination of the Female Genitalia

For the young female child, a internal gynecological exam is not recommended if there is evidence or reasonable suspicion of upper genital trauma, an exam under anesthesia should be arranged. However, a careful visual inspection should always be made.

Pre-pubertal or Pre-menstrual Child

The young child should be examined in the most comfortable and reassuring place for that individual child. The child may be placed on an examining table or examined on a caretaker's lap. The labia majora, minora, and clitoral hood are carefully inspected for any evidence of acute trauma including erthema, swelling, abrasions, hematomas and lacerations. The remainder of the external genitalia are then carefully inspected by placing gentle traction on the labia majora laterally and posteriorly. This allows for visualization of the vestibule including the urethral meatus, hymen and posterior fourchette. Any evidence of trauma to this area should be noted.

An attempt to visualize the hymen is usually successful in prepubescent girls. The shape or morphology of the hymen and surrounding structures especially the posterior fourchette, are areas frequently traumatized during an acute assault. The border of the hymen should be inspected noting any breaks, tears or lacerations. The tissues, especially the hymen, are best observed in a fully stretched state so that the outline of the hymen can be accurately assessed. One may measure the opening of the introitus in millimeters or document gross abnormalities. One may also gently hold the labia majora between the thumb and index finger and pull laterally and posteriorly to visualize the internal genitalia. If there is evidence of lacerations in the genitalia, then a consultation with a gynecologist should be strongly considered to rule out severe internal injury. The hymen however may become distorted and remnants of the tissue may be visualized circumferentially around the mouth of the vagina.

The most important thing the examiner can do, however, is to describe in anatomically correct terms the disruption of the usually smooth collar of tissue which surrounds the mouth of the vagina or other evidence of trauma to the genitalia. Physical findings on the hymen or surrounding tissues should be recorded using the standard orientation of 12 o'clock being towards the urethra and 6 o'clock towards the anus when the child is in the supine position. Evidence for STDs should be noted as well. Vaginal swabs for the evidence kit (cotton) and/or cultures for STDs may be obtained by swabbing the wall of the vagina while the pre-pubertal child is in the knee chest position being careful not to touch the sides of the vestibule or hymen when placing the swab inside the vagina.

Post-Menarchal Child

Careful inspection of the external genitalia should be done in the same manner as described for pre-pubertal child. The morphology of the hymen should be noted and the border of the hymen carefully examined for any tears, lacerations or breaks. The post-menarchal hymen is estrogenated and appears thickened and hypertrophied compared to the pre-pubertal child's hymen. One should be careful not to over interpret indentations in the hymen as secondary to trauma. The walls of the vagina should be inspected for any abrasions or lacerations. The vaginal vault should be inspected for secretions. Swabs of these areas should be placed in the evidence kit and swabs of the cervix taken for any cultures and a wet mount.

Anal, Perianal and Perineal Examination

The anus, perianal and perineal areas should be carefully inspected for evidence of trauma in every age child suspected of being sexually abused or assaulted. Erthema, abrasions, lacerations, tears, hematomas, ecchymoses and any distortions of the normal "sun burst" appearance of the anal and perianal tissues should be noted. The depth and shape of any anal lacerations should be documented. Bands of scar tissue may be seen in some children with past history of anal trauma. Digital rectal examination for anal tone may be performed at the discretion of the examiner but rarely adds forensic information. Visual inspection of the anus can allow an estimate of the patulousness of the anus.

Severe rectal bleeding should raise the suspicion of possible severe internal injuries requiring consultation and/or protoscopy. swabs or damp swabs of the perianal and/or the perineal areas may be taken for cultures and/or the evidence kit. Magnification of the genitalia and anal area with a hand held magnifying lens or a colposcope can be very helpful to identify fine detail as well as small tears, and scars. Small rulers calibrated in mms can also be very helpful for measurement of the introital opening and other physical findings.

Non-Authorization to Release Evidence:

Although there have been instances where a parent or guardian, acting on behalf of the child, has refused to authorize the release of evidence to law enforcement, the actual incidence of this has been very low. Since child abuse must be reported, the parent/guardian does not have a choice in whether the evidence is released to the law enforcement agency.

Post-Examination Information:

Information Form

An Information Brochure should be filled out, providing the same information as is given to the adult survivor. The child's parent should sign the release form which will be retained by the medical facility. The provision of psychological services for children and their parents is just as important as for adults. A referral should be made to an appropriate agency or individual with approved credentials and training in the field of child sexual abuse.

After an acute assault, it is extremely important that children return for a follow-up visit within one week to re-evaluate any genital or other injuries, and to perform follow-up cultures, if necessary. This visit will also provide the examining team an opportunity to assess how well the child and/or family are handling the stress and whether counseling has been received or is necessary.

Law Enforcement and Children's Protective Services Interview

Key Interviewing Techniques

The child must be allowed to tell the story with as few interruptions as possible and to use her/his own words in describing what happened. It is absolutely vital that the child be believed at all times, especially in cases of disputed accounts by adults. The child's story should be taken at face value. Value judgments and expressions of shock or surprise should be avoided.

It must be made very clear to the child, as often as needed throughout the interview that the child was not at fault.

Statements made by the child should be recorded accurately. The child should not be led in such a manner that she or he answers questions to 'please' the interviewer. Younger children often have problems with times and dates. In order to establish a time frame in which the abuse occurred, it can help to discuss favorite events or activities. Younger children also are somewhat concrete and have a short span of attention. Therefore, the interviewer should avoid long and open-ended questions and provide short rest periods at appropriate intervals during the interview.

The use of interview aids is extremely helpful. Drawings, pictures and anatomical dolls are particularly effective when used by trained personnel. It may be necessary for the interviewer to follow up the child's description with clarifying questions in order to learn exactly what happened.

Finally, it is important for all interviewers to be aware that many times it is necessary to conduct more than one interview over a period of days in order to ascertain the circumstances of the abuse. It is the responsibility of the interviewer to ascertain the most supportive environment for the child during the follow-up law enforcement interview. The goal of the interview with the child survivor of sexual abuse, whether the abuse was committed by a stranger, family member or other trusted adult, is twofold: (1) To avoid further trauma to the child; and (2) To obtain accurate information needed for case investigation.

Ideally, the interview should be conducted by the team approach. Law enforcement and a Children's Protective Services representative may do the interview together, so that the trauma of multiple interviews is curtailed. It also can be helpful to have a support person present who established a good rapport with the child during the medical examination/interview. To avoid confusion, however, it is important that only one person be the primary interviewer.

Depending upon the circumstances surrounding the case, some child patients will be interviewed by law enforcement and/or Children's Protective Services representatives at a location away from the hospital, such as the child's home, school or an agency facility. The child should only be removed from school as a last resort. Space adjacent to the emergency room or pediatric unit of the examining hospital should always be provided for those situations where the interview must be held immediately after the medical examination.

Stan Schneider, Ned Barnett and Troy McKinney are Board Certified in Criminal Law by the Texas Board of Legal Specialization


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