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July 31, 2016 | by  | in Features |
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One in a Hundred: Crime and No Punishment

Eve tackles the myriad problems that underpin the sexual violence justice system. She looks into the role of an M.E.K (Medical Examination Kit), and how the evidence gathered can be both useful, and problematic. Content Warning: this feature contains distressing descriptions of medical and legal aspects of rape and sexual violence.

 

The sexual assault support agency Help Auckland reports that “only about ten out of 100 sexual abuse crimes are reported and three of those get to court […and] only one of those is likely to get a conviction.” The reasons why only one of every hundred sexual abuse crimes result in a prosecution are complex and debated. In recent years there has been a marked increase in discussion about the prevalence of sexual violence in New Zealand. There have been several cases of horrific violence that have reached mainstream media headlines, becoming a catalyst for the public denouncing rape and decrying the inaction of institutions that are expected to achieve justice. This was crystallised in the public psyche by the police’s failure to charge those involved in the roast busters case. Although the actual prevalence of sexual violence remains underestimated and often unreported, either to media or police, perhaps sexual violence activists can take some solace in the fact that at least now we’re talking about it.

What hasn’t been talked about, though, is what the process is like for survivors who make a complaint of sexual assault. The police provide some information on their website about the process but it is minimal: “We understand that reporting a rape or sexual assault is very difficult, but we will make sure that you get the support you need to help you through.” They then tell people to call or visit police stations to arrange making a statement, or to call 111 if the assault has just happened. It’s interesting that the police continue to assert that they will “help [complainants] get through” in light of the extensive research that highlights how few people feel safe to report a sexual assault.  

Reporting statistics that do not accurately reflect the real prevalence of sexual violence results in further isolation for survivors. Given that only a small percentage of sexual violence cases proceed through the courts, it appears that the default setting for survivors is to not make a complaint, either because they don’t want to or they don’t think it will achieve anything. This creates a perpetuating cycle within the justice system; it continues the huge discord between the prevalence of sexual violence and the realities of achieving justice for survivors. The possibility that a conviction is not the only type of justice for survivors has been discussed more and more in recent years. Given that Help Auckland reports that 90% of all rapes are done by someone known to the survivor, it is likely that not all complainants will want to see their rapist incarcerated for years (the starting point for sentences for rape convictions was held to be eight years in the 1994 case of R v A).

Research, funded by the Law Commission and conducted by Yvette Tinsley, Elisabeth McDonald, and Jeremy Finn in 2011, suggested that where appropriate alternative restorative justice processes could be feasible. Restorative justice does not result in imprisonment for offenders and does not involve a typical court process. At present restorative justice processes for sexual violence are not formalised and the only option for formal justice involving the police is to proceed through the court system.

For those who have endured sexual assaults, the processes after reporting are frightening and can feel unsupportive. The idea of going to visit a doctor to endure a lengthy and invasive medical examination soon after an assault occurs is off putting at best. Rape kits, or MEKs (Medical Examination Kits) have historically been referred to by numerous acronyms and initialisms: e.g. a sexual assault kit (SAK), a sexual assault forensic evidence (SAFE) kit, a sexual assault evidence collection kit (SAECK), a sexual offense evidence collection (SOEC) kit, or a physical evidence recovery kit (PERK). However in recent years it has become known to doctors and those working in the justice system as an MEK. Basically, an MEK is the name of the collection of medical tests done to someone who is referred to a sexual assault specialist doctor. The results of these tests are compiled into one physical “kit,” an MEK.

I interviewed Associate Professor Elisabeth McDonald, from the VUW law school and a driving force in the legal scholarship of sexual violence, and Dr Cathy Stephenson, a GP at VUW student health as well as a member of Doctors for Sexual Abuse Care Inc (DSAC), to demystify the process of making a complaint, and discuss the medical examination process. I talked to Elisabeth about the legal issues the survivors face when a medical exam is entered as evidence in a rape exam.

Following an assault, a survivor can either make a complaint directly to the police, where they will then be referred on for a medical examination if the assault was recent, or they can present to a medical centre first, get a medical examination done (if they so desire), and then decide whether or not to go to the police. Survivors are not obligated to make a complaint to the police after having an MEK.

Rape kits were first introduced in the 1970s in America, during the height of second wave feminists’ work to propel sexual violence as a societal issue into the public psyche. They were intended to formalise the procedures surrounding the collection of evidence following a rape, to ensure that best evidence could be collected for a possible prosecution.  

Some evidence can disappear within a couple of hours (e.g. date rape drugs are metabolised within a couple of hours), so the best evidence will be collected as soon as possible after the assault. Dr Stephenson is clear that the patient’s health, safety, and comfort are prioritised, and in some instances, due to the patient being too distressed, or not consenting to all of it, it is not possible for a full MEK to be done, either immediately following the assault, or at all. Considering that patients have generally just undergone traumatic experiences, the patient’s consent to MEKs is extremely important: “the paramount aim is to empower the patient, and enable them to control the whole process.”

There are six doctors within the Wellington region that are trained to do an MEK. They operate on a roster so that all complainants wanting to have a MEK are able to have one done by a trained sexual assault care doctor. A kit can take anywhere from one hour to several hours, depending on how much the patient is comfortable with and how much support they need.

MEKs can include a detailed look at the patient’s skin, looking for injuries or “trace evidence” such as grass or fabric fibres that might help locate a scene. The doctor may also take samples under their fingernails to look for mud, dirt, etc., or the assailant’s DNA if the patient has scratched them for example. Hair samples will match up with hairs that might be found at the scene, but are also important for toxicology as a range of drugs can be tracked using hair growth. This is really useful when there are instances of suspected date rape or drugs being used without the patient’s consent.

Blood samples are taken to check for alcohol levels, drugs, patient’s DNA, plus if requested a “baseline” test for STIs such as HIV and hepatitis. Urine testing for drugs is also done.  

Swabs (like a cotton bud) are rolled on the skin or tissue to try and retrieve foreign DNA—found in saliva, blood, and semen. Swabs may be taken from the mouth, anywhere the patient had been touched / licked / kissed etc., any sites of injury, plus the genital and possibly anal area.

Forensic doctors will also look around and inside the genital area, primarily for any small injuries that might be there and that will help in terms of evidence. Ideally this will be done with a speculum (the instrument used for smear tests) and a good light, but in instances where patients are too distressed or sore it can be done without a speculum.

All the samples taken are collated with information written in a MEK “booklet”: a basic outline of the alleged assault, any relevant past medical information, any medications they are on, what contraception they use etc.. They also need to ask about recent sexual partners (so that their DNA can be ruled out from any sampling) as well as recent alcohol and drug use (so that voluntary intake can be eliminated from toxicology and alcohol samples). In the booklet, the doctors draw and measure in detail any examination findings—this might be scratches, bruises, grazes etc., although often there are no injuries as such to find. This is then sealed within the kit and handed to the police who then hand it to ESR, the forensic laboratory.

* * *

The good, the bad, and the ugly: the intersection of MEKs and the justice system

Although the interview with Dr Stephenson clarified that MEKs are empowering experiences for most of the people who undergo them, the success of the MEK in the criminal justice system is still limited by the restrictions of the sexual assault legislation.

The Problem with Evidence

In the bulk of sexual violence cases that proceed to court, the key issue that the lawyers will be arguing is whether or not the complainant was consenting. An issue within the law is that the prosecution must show not only that the complainant did not consent to the rape but also that the defendant did not “reasonably believe” that the complainant was consenting. The idea of “reasonable belief” is where many rape trials fail. It allows juries to believe (or not believe) a defendant when they say that they believed the complainant was consenting because they had previously consented, or because they had “seemed keen” earlier in the evening. This perpetuates the continuance of rape myths around complainants “asking for it” if they are intoxicated.

The potential for lawyers of the defendant to raise doubts about the complainant’s credibility as a witness is compounded by the admittance of evidence contained within the MEK of the levels of alcohol/drugs found in the complainant’s blood at the time they presented to the DSAC doctor. Lawyers will try and get the jury to draw the inferences that the complainant was “asking for it,” either because they seemed keen / had previously consented, or that the complainant is probably not telling the truth or can’t remember the truth because they were drinking and are an unreliable witness.

In theory, according to Dr Stephenson, this information is gathered in the MEK to determine whether or not the complainant ingested substances to which they did not consent: “so that voluntary intake can be eliminated from our toxicology and alcohol samples.” However the entire MEK report tends to be admitted into evidence, including information about the levels of alcohol or drugs that the complainant willingly consumed. The fact that the complainant had been drinking should not impact the jury’s view of the purported guilt of the defendant. Rather, the law states that intoxication does not equate to consent.  It’s not a consensual event if the complainant had previously consented to sexual activity but then got too intoxicated to consent at this instance. Although this all-too-common scenario has previously been disregarded as “real rape,” the law is relatively clear on this issue:

S 128A: (3)

“A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious. A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.”

Despite this unequivocal statement of law, there have been plenty of cases where the defendant could not be found guilty because (or in large part due to) the complainant was so drunk that they were incapable of giving consent. Moreover, the evidence of willing consumption of drugs and alcohol by the complainant can be used by the defence to invoke the idea that the complainant has bad character. This is a common way for the defence to subtly encourage the jury to assume things about the assailant, making the success of prosecution less likely. Similar information in MEKs, such as the presence of pre-existing sexually transmitted diseases, can be used by defence to further sully the reputation of the complainant, as though their character is on trial. Thus is the nature of a rape case in many instances: it is easier to sling mud against the complainant and raise doubt in the minds of the jury than to prove innocence.

Due to recent decisions in the higher courts of New Zealand section 44 of the Evidence Act, which is the sexual experience rule, is working much better than it used to in terms of excluding evidence from being admissible when it concerns the complainant’s sexual history. Elisabeth McDonald argues that the same rule should apply to information contained within MEKs about STDs. A sexually transmitted disease is clearly evidence of sexual history and hence should be excluded from being evidence in a sexual assault trial because it is covered by the sexual experience rule in section 44.

The strength of the MEK evidence will depend on the facts of the case: if the identity of the perpetrator is at issue then a positive DNA identification could be crucial. However, as noted above, in many rape cases the issue is whether the complainant consented to the assault. Prior to a series of relatively recent cases in the higher New Zealand appeal courts, evidence of blunt force trauma / other injury could be used to show rape. The current position is different: the Court of Appeal held in the 2010 Tuhura v R case that doctors should not be asked for their opinions of whether or not the complainant was likely consenting, based on the injuries that were presented during an MEK. Dr Stephenson adds: “in our ‘forensic’ or evidentiary role, it is really important that we are objective and unbiased—so we do need to step back for that part—and analyse exactly what findings we see… not in the context of the story that we have just heard [from the complainant]. So our formal statements for court and our expert witness roles should be the same, whether we are providing them for the prosecution or the defence.”

Likewise, lack of injuries should not be considered evidence that the activity was consensual. Despite the position about complainant’s injuries being clarified in law, whether or not juries take into account injuries when making their decision about the guilt of the defendant is uncertain. The judge may direct the jury not to draw an inference from the information that there was / was not blunt force trauma present, but what happens in the jury deliberation room is kept private. Perhaps this shift away from injury = rape is in part due to a greater understanding of the bounds of consensual sex. People can consensually engage in violent sexual activity and then be raped and have no more injuries than normal, and it is not unusual for complainants to have no physical injuries at all.

Rape myths

The perpetuation of rape myths by individuals and institutions involved in the investigation, prosecution, and defence of sexual violence crimes also affects the chances of justice for survivors of sexual violence. In New Zealand police are given high levels of discretion to decide whether or not to pursue a criminal case. Anecdotal evidence suggests that in Wellington, in this year alone, police have failed to pursue numerous cases of known rapists (one a serial rapist) due to “insufficient evidence,” despite not even interviewing the alleged assailant. Yvette Tinsley, Elisabeth McDonald’s colleague at VUW Law School, released a paper in a 2011 edition of the Canterbury Law Review that said that “numerous studies have also shown that police decisions to charge or ‘no crime’ / ‘no further action’ a complaint are linked to conceptions of ‘real rape’.” It is more likely that a charge will be pursued where there is physical injury and where the rape was done by someone unknown to the complainant. Tinsley continues: “These findings often relate to the perceived credibility and responsibility of the victim. For example, police officers have been found to view victims as less credible and attribute responsibility to the victim where she was intoxicated at the time of the offence.” Research suggests that police view complainants as more credible when crying or appearing severely upset, which does not take into account the multiplicity of reactions that people have when they go through traumatic situations. Tinsley cautions the possibility that it is difficult to assess the results of the studies she cites, as they may stem from the police officer’s own beliefs, or their understanding of the likelihood of conviction, given societal rape stereotypes. Or, perhaps, a combination of the two.

* * *

This is a messy and complicated system, with various possibilities for human error or a linguistic misinterpretation to drastically alter the course of a trial—this is so often the case when law intersects with human experience and behavioural myths. It’s further complicated when we examine the broader narrative of those who experience sexual assault. Research done in Australia in 2005 suggested that complainants’ decisions about proceeding with a sexual assault complaint were “heavily mediated by the police’s response” in almost one third of cases. And that a quarter of all complainants who withdraw complaints do so due to a negative perception of the criminal justice process. But change does happen; recently the “previously consistent statement rule” contained within section 43 of the Evidence Act was altered. It has enabled previously inadmissible evidence of a complainant detailing the assault / rape to someone other than a police officer soon after the event. This means that a complainant who calls a friend and tells them they’ve been raped before they go to the police can now offer that evidence to prove that they have been raped, as they had made a previously consistent statement. Before the law change, consistent statements could often not be admitted as it was deemed they would not add anything to the case.

Overall, the issues within the criminal justice system outline a bleak and murky picture of the realities that those reporting sexual assault face. These are the same issues that make it near impossible for rapists to be convicted of the crimes they have committed. Despite it being an arduous process for many survivors of sexual assault, there is some hope of improvements: the office of the Auditor-General has conducted two investigations into how police handle sexual assaults and gave instructions for improvement. Further, those who do undergo MEKs in New Zealand appear to be mostly happy with the process. It doesn’t appear that New Zealand has the same issue of a backlog of rape kits as exists in other countries, and the work done by DSAC has helped to make the process as comfortable as possible for survivors. Despite this, it is clear that our laws and our institutions were not predicated on the notion that those complaining of sexual assault should be believed, and the harsh penalties of a so-called-justice by virtue of a long prison sentence appear to be few and far between. Given the prevalence of sexual assault and rape in New Zealand, incarceration of all of the assailants is an impossible and arguably meritless goal: a reformulation of justice for survivors of sexual violence remains crucial.

 

For more information and where to get help

The Community Law centre have a comprehensive guide on making a complaint: http://communitylaw.org.nz/wp-content/uploads//2015/06/Rape-Survivors-Legal-Guide-2011.pdf

Help Wellington: http://www.wellingtonhelp.org.nz/ and their crisis number, (04) 499 7532.

Help Auckland: http://helpauckland.org.nz/

Wellington Rape Crisis: http://wellingtonrapecrisis.org.nz/ and (04) 801 8973.

Rape Prevention Education: http://rpe.co.nz/find-a-sexual-assault-support-centre-near-you/  

The university provides support for students who have survived sexual violence. Contact details for staff who can help is available here: http://www.victoria.ac.nz/students/campus/health/sexual-violence

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