Why Examine the Suspect?

I've heard it so many times. "We examine the victim but not the suspect." Really? My brain whirls and I have to try to understand this idotic notion. It's almost as simple as an equation If A+B=C, then C-A must=B.
But in the forensic sexual assault world, apparently examining A (the alleged victim) is good enough.

Please, forensic examiners, and persons of common logic, if you examine the victim then fight for examining the suspect as well. Law enforcement has no place in the examination of, and collection of , forensic evidence of the suspect.

In cases of crime, we are supposed to assume that the accused is innocent until proven guilty, but the rampant advocacy of alleged sexual assault victims does not do this. They often immediately begin calling the suspect the "perp" or perpetrator, and the thought is that law enforcement and/or medical will not pay to have the forensic kit done so why do it?

I shake my head in shame that people ever think such a thing. If there was a crime committed, or alleged, then ALL of the crime scene must be examined including the individuals present at the crime. And it is much more than a simple DNA swab. The examiner must do a head to toe exam on the suspect just as one was done on the alleged victim. You never know what you'll find, or what you don't find. And that information has a huge bearing on the case. The Judge and Jury deserve to have ALL of the details. Tox screen levels, trace evidence, photographic evidence, etc.

Let's just say it. There is NO reason that the accused or the suspect in a sexual assault case (or in any crime where there is clinical forensic evidence) should not get a forensic exam. (The assumption being that the victim has made a report and requests an exam.) A suspect exam is needed to pair with the accuser's exam and the rest of the evidence from the place the crime allegedly took place as well as from witnesses. When we fail to do a suspect exam we do a disservice to the justice system. Plain and simple.

So you won't get your exam paid for by VAWA. Find another group who WILL pay for it. The other thing I often hear is, "Well, I'm the only examiner and can't examine both the alleged victim AND the suspect." Concerns over cross contamination and objectivity are cited as reasons why. I say this is bullshit. If an examiner needs to perform an exam, there are perfectly acceptable ways to do this.

In the case of cross contamination and only one examiner, the examiner completes the alleged victim first, showers and change clothes and the suspect exam is done in a completely different room or a room that was wiped down thoroughly before the exam was done. In terms of objectivity, a SAFE/SANE examiner is a medicolegal professional who is ethically bound not to pick sides of a case. We are experts. There should be no loyalty to an alleged victim or a suspect. Our job is to collect forensic evidence, regardless, and when the case goes to trial our role is to help the courtroom understand the results on a scientific evidence based case. It is really that simple.

So, next time you wonder whether your facility should be doing suspect exams, stop asking the question because the answer is "yes". If you do alleged victim exams, then you should do suspect exams as well. The suspect may be innocent, or the alleged victim may have been sexually assaulted/raped, but no one will have the information to decide completely if you don't give them all of the evidence available. Suspect full exam, including photographs of injuries, tox kit, BAL level, STD testing, the full works . . . is important. Look at your protocols and if they do not include suspect exams, change them so they do.

One of the greatest issues I have with many programs in general is the desire to fall back and say "we can't because...." It's important to always change the perspective to: "If we had to, HOW could we do it?" The second question opens up a number of possibilities. Possibilities that can really make a difference for the judge and jury deciding the case.

Think carefully about this. Remember that much of the outcome depends on you, in that evidence needs to be collected correctly, expert-witness testimony needs to be done in a non-biased, professional and ethical manner, and the court will only have the evidence that is collected in order to decide the case (aside from witness testimony). The lives of individuals are at stake. A victim may lose the opportunity for justice, or an innocent man/woman may go to prison for several years and have their name placed on a sex offender registry for the rest of their lives. We owe it to the courtroom to give them as much evidence as we can, so they can make the best decision they can.

*Disclaimer: The statements above do not reflect the opinions or attitudes of the DoD or the US Navy or any other government entity, but are solely those of the author.

SAFE CARE in the Military: Providing Adequate Sexual Assault Forensic Exams

Most of you are aware that I'm a huge proponent of performing Sexual Assault Forensic Exams correctly and thoroughly. And nothing bugs me more than to believe the military has failed to provide the best forensic care possible for alleged victims and suspects. Nothing except knowing we can provide even better care by providing quality forensic medical care in all areas of violence prevention and response.

As clinical forensic examiners in the military, I believe we owe it primarily to the courtroom to make sure that the evidence we collect follows proper chain of custody, and that we collect as much evidence as possible so that the judge and jury can make the best decision they can concerning a verdict.

During much of my career, I've heard numerous reasons why forensic exams could not be conducted at small military clinics or military hospitals. One of the major reasons cited was that there were not enough cases for a healthcare provider (MD, NP, PA or RN) to remain competent at performing exams.  The more I heard this excuse, the more I became confident this was only an excuse borne out of limited thinking, fear and laziness.

Consider how we train healthcare providers to perform life-saving skills such as basic life support (CPR). In all of my years of training and becoming certified to "save lives" I never once had to save an active cardiac arrest patient to make me competent at BLS/CPR. How, then, did I learn and maintain those skills? Simulation. It's that simple.

Now don't get me wrong here. This is not to say that watching a video on sexual assault exams will suffice in training providers how to perform exams. Simply showing a video does not provide the necessary hands-on practice and understanding needed to perform such a life threatening exam. And it IS a life threatening exam.

"How so?" you might ask. Well, when a case goes to court, there is the alleged victim and there is the suspect. The victim, if s/he is truly a victim, deserves justice and his/her day in court. The suspect, if truly innocent, deserves to be acquitted or if guilty deserves to go to prison. If the suspect is innocent and is sent to prison (sometimes for 12 or more years) that act has affected the rest of his/her life. Even if/when they are released, the felon remains on the sex offender registry list for a lifetime. A LIFETIME.

That is one reason why knowing how to perform the exam properly is so crucial. And it is not only the examination that is critical. The Court Martial (trial) can take up to a year before it is held, and the clinical forensic examiner is not going to remember every detail of that exam after such a long period. Thorough documentation, understanding of the expert witness process and professional ethics are paramount in order to avoid the pitfalls that can come with inexperience.

Back to training and simulation. Practicing how to perform the sexual assault forensic exam using hands on simulation is important, and it is even more important for registered nurses who do not routinely perform genital examinations on men and women. Knowledge of what is normal genitalia and knowledge of what is an abnormal finding is imperative. Knowledge of the process of the exam is essential. By writing up mock case scenarios, gathering the paperwork and equipment, and going through a few mock exams semi-annually or even quarterly, the clinical forensic examiner can maintain a fair level of expertise in sexual assault examination. But they should not do this alone.

SAFE CARE stands for Sexual Assault Forensic Exam Competency and Review Exercises. Under this model, the sexual assault examiner is precepted and deemed competent to perform these examinations by another experienced examiner. Competencies are a check off list of skills needed and/or understood in order to maintain those skills. During mock or simulated exams, an experienced examiner guides the trainee through the mock case, paperwork, victim interview, sexual assault exam (victim or suspect) and has the opportunity to testify in a mock trial. Registered nurses who do not routinely perform genital exams should have clinical time with Nurse Practitioners/Midwives, Physicians Assistants or Physicians in learning how to perform speculum and pelvic exams so that they have a range of understanding concerning what 'normal' genitalia look like.

In the military, many Medical Treatment Facilities (MTF's) in the U.S. have opted for having civilian SANE/SAFE services perform their exams. While these services are generally good, there are enormous pitfalls with this approach.

First, military personnel do not gain the experience they need to perform these exams, so that when they are sent on deployment, or to an overseas base such as Okinawa, Guam or Sigonella, they are ill prepared to care for these patients. If civilian services are the preference for sexual assault exams at a military base, it is better if the MTF works with the civilian services and involves military providers in the civilian examination process. In this way, military providers can learn and maintain skills for when they are needed.

Second, the resources are readily available in the military to perform these services and the military misses a golden opportunity at standardizing their clinical forensic care and setting the bar for providing optimum forensic services to military personnel and their beneficiaries. The military has the ability to follow-up patients through electronic medical records, to refer members to ancillary services such as behavioral health and social services and as a result victims rarely fall through the cracks. When military members are cared for at civilian services, their medical/forensic care is generally not as complete in that follow-up care can easily fall by the way-side.

Third, the military is its own culture. There are cultural norms, expectations and behaviors that exist in the military that are often beyond civilian understanding. A military medical member is more likely to understand the victim and suspect, to be in touch with their environment and situations, to understand their language and their expectations. Civilian services often find it difficult to grasp the deep nuances of military culture.

Forth, there are members in military leadership who believe that physicians/surgeons are better qualified to perform sexual assault exams or to run SAFE units. This is far from the truth. Most surgeons would rather be performing surgery. THAT is where their supreme skills lay, and surgery is where the heart of their practice is. An emergency physician is the least likely candidate to perform sexual assault exams because ER physicians may be needed at a moment's notice for an acute trauma. A sexual assault exam takes anywhere from 3 to 6 hours to complete. . . sometimes longer. A sexual assault exam is a FORENSIC exam, which means it must follow a CHAIN OF CUSTODY and the evidence cannot be left alone for even a second. This means that not only is the ER physician not a likely candidate to perform the exam, but the ER nurse who assists the physician during a trauma is not a likely candidate either. In addition, in the civilian world, it is primarily nurses and nurse practitioners who perform these exams, and gold standards are set by the International Association of Forensic Nurses (IAFN) who, as a professional organization, has members who perform research in these areas and who are constantly building up their professional knowledge base in forensic clinical care.

There is a community of professionals in the military medical world who are BEST suited to perform sexual assault forensic exams. That community is the midlevel providers (NPs, CNMs, PAs). Among these groups, most providers are highly familiar with normal anatomy including genital anatomy. Most do not have ancillary duties such a "Nurse of the Day" watch, with the exception of some CNM's (midwives) who may pull call on the Labor Deck. Among all of the military medical professionals, midlevel providers are best suited to run a SAFE center, and to train future examiners. But this cannot occur unless each MTF takes up the rope and starts their own Clinical Forensic Center of Excellence.

Why a Clinical Forensic Center and not just a SAFE Center? Because the military, like the rest of the world, deals with criminal cases of abuse, child sexual assault, domestic violence, aggravated assault, homicide and suicide. A Clinical Forensic Center can address the medical aspects of all of these cases in a forensic manner and become more sustainable to that point. Such a center could be the pinpoint for forensic epidemiology and can more thoroughly address all areas of violence prevention and response rather than simply focusing on one area.

I've taught many clinical forensic courses to military personnel around the world. From Japan, to Maryland, to California, Kuwait, Afghanistan and Guam. I've served as an expert witness at several court martials for the prosecution and for the defense, and subsequently I've reviewed hundreds of cases and documentation of sexual assault exams. Because of this, I can say with a large degree of certainty that the military would do better to embrace the concept of clinical forensics and involve its medical services in caring for its members and beneficiaries, and training to a standard that equals or exceeds that of the IAFN. With standardization and full fledged development, the military would be able to grasp the full problem of violence as a public health issue and it would save money and potentially decrease all areas of violence and resulting injury by taking an active and epidemiological approach this problem.

Until that time, the first steps must be to embrace simulation practice for forensic sexual assault exams, and ensure that those individuals performing them are competent. Hopefully the time is near where every MTF will have a Clinical Forensic Center of Excellence, but until then we can at least hope for the best quality of forensic care the military can provide.

A wonderful article (which referenced a paper Diana Faugno and I both wrote on simulation and had published in the Journal of Forensic Nursing) discusses the researched benefit of performing simulation when learning how to care for sexual assault patients.

It is titled: SEXUAL ASSAULT FORENSIC EXAMINERS’ TRAINING AND ASSESSMENT USING SIMULATION TECHNOLOGY. The pdf file is readily available to view. 

The abstract of article by Diana Faugno and I can be found here: 
The SAFE CARE model: Maintaining competency in sexual assault examinations utilizing patient simulation methods.  If you have trouble obtaining a copy, please let me know and I'd be happy to assist.

Enjoy and practice well!

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*Disclaimer: This blog is solely the opinions and experiences expressed by the author and in no way reflects the opinions, policies or beliefs of the U.S. Government, the DoD or United States Navy.

Gathering Evidence: To test or not to test?

I've heard it said so many times, "We don't test for sexually transmitted infections (STI's) in a sexual assault case." or "We don't do wet preps or look for motile or non-motile sperm." When I hear words like this, I have to catch myself before I make an excited utterance. (Seriously?)

Even given that there is an incubation period for STI organisms, the examiner needs to realize that the presence of an infection during a sexual assault exam can confound what an examiner sees on inspection.  Therefore if redness, irritation or bleeding are present on a body in a criminal case, then other causes of those findings need to be investigated. The alleged victim or suspect should be tested any time it is possible. Why?

If there is redness or a discharge in the genital region (cervix, vagina, labia, penis or anus) then STI's should be ruled out as a possible contributor to that redness. When redness/irritation is seen in a photograph (or video) during a sexual assault exam, the assumption by the jury, the judge and the Prosecution is that the redness is due to some form of assault. However, when questioned by the Defense, the FNE must concede, under oath on the witness stand, that redness, bleeding or tissue injury could have originated from the presence of something else other than assault. In the absence of testing for infection, it can be assumed that some sort of infection was possibly there at the time and contributed to the findings.

Redness and/or irritation could be due to infection such as a yeast infection or bacterial vaginosis. It could be due to the presence of an STI. It could also result from consensual sexual intercourse (vigorous or not vigorous depending on the person and his/her nutritional status or overall health status) or it could result from non-consensual sex or non-consensual/consensual use of some other object (finger, fist, vibrator, coke bottle...etc.).

The point being, that it is important to investigate every causative possibility for redness, injury or bleeding in order to provide the courtroom with the best evidence available to make a sound decision. It is imperative for Forensic Nurse Examiners to learn to see beyond what is traditionally expected, to think ahead concerning what the 'recommendations for care are' vs 'what the guidelines for forensic evidence collection suggest,"  and then their goal should be to exceed them if need be.

If what we do is 'evidence based' then we know there are alternative reasons for redness, bleeding and various injuries. When collecting evidence it's also important to rule out those reasons so the courtroom can be more informed when it makes its decision. Some nurses are uncomfortable with doing that because they lack the skills or because of cost of time, equipment or other factors. Microscopy, or the use of lab and other expert professionals (consulting urologist, Family Practice or ER MD, etc.) should be considered when examining those reporting a crime and those suspected of one.

It is by questioning the status quo that we move ahead. It is by understanding the right thing to do versus the easier thing to do, that we can bravely take steps that just might make a difference in a case. If we contribute knowledge that helps the jury and the judge make the right decision, then we not only obtain professional and ethical excellence, but we also preserve our own peace of mind.

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*Disclaimer: This blog is solely the opinions and experiences expressed by the author and in no way reflects the opinions, policies or beliefs of the U.S. Government, the DoD or United States Navy.

Defense for the Defense...

Many forensic examiners perform sexual assault exams and then testify for the Prosecution in the resulting case. They testify as a fact witness regarding their exam process and/or they testify as an expert witness offering their opinion in the case. Few forensic nurse examiners offer their services testifying for the Defense.

I've asked some forensic nurses why they shy away from assisting the Defense. Some are afraid of conflict of interest and some feel they wouldn't do the Defense justice (believing the accused is guilty).  Others see working for the Defense as an adversarial role against another practitioner.

As someone who frequently assists the Defense in cases, I feel no conflict of interest nor do I see the role as adversarial. The case is a case, like any other in the justice system. Both parties deserve to have the best information presented in court.

When I'm asked to assist the Defense in a case, I make it clear to the Defense that any information I provide is just as available to the Prosecution. I am an unbiased examiner with nothing to prove. I wish neither to exonerate the accused nor convict her or him. All I hope I can do is shed clarity on the case from an unbiased view.

In the course of reviewing a case, I do look over other the physician's or forensic nurse's examination and if there are pieces lacking I do point them out. If there are excellent credentials and documentation, I point that out as well. If it's an examiner's first time performing an exam, then I look at their training process, their education and professional experience and I explain on the stand that everyone has to have their very first 'solo' exam. How else would we get to be seasoned experts in the future?

The Prosecution has learned to ask me questions that knock out the suggestion that a 'first' exam is inadequate. I (personally) abhor a Defense approach that tries to highlight this, and try to extinguish it before it starts. What is most important is to ensure that the examiner has had the proper education, training and preceptorship to perform the exam. What is also important is to highlight that the forensic examiner/nurse was the person that  performed the exam, not me.  S/he was the one who saw the patient. S/he is the one who can best determine what it is they saw.

It is important however that forensic examiners are ethical concerning information they provide about their exam. I've personally heard forensic nurses testify they visualized 'sperm' in the vaginal vault without using a microscope. I've heard physicians testify that they are sure a patient was raped because of existing genital injury. Such statements are improper and not evidence based. There is no way to tell a patient was raped unless the examiner was actually there to visualize what happened. Even photographs and video can be misleading, and evidence can be planted just as easily as it can be absent. Objectivity and accuracy are key. Document only what you see. Make statements that contain scientific evidence, or state what you may have experienced anecdotally... but you must say it is 'in your experience' and not fact.

When I am contracted by the Defense, in addition to reviewing the forensic examiner's CV and the exam s/he performed, I review pretrial statements, photographs of not only the patient's physical  examination but those of the crime scene. I review statements from investigators. I review statements from the accused. I obtain as much as I can of the patient's medical record including lab results and any medications the patient is taking. I also review the DNA and trace evidence obtained from the kit, and any toxicology results obtained from the plaintiff and/or the accused. It is essential to gather as much information as possible in order to present to the Defense, and to the courtroom, accurate information concerning the case from an unbiased perspective.

Serving as a Defense expert witness is both rewarding and eye opening and it will forever change how you personally look at a case. It will also improve how you practice. In many ways it is "peer review" on a legal stage, but that is nothing to be afraid of if you practice ethically and honestly.

Before you turn down a Defense case, think seriously on whether or not you should accept it. There are many supportive examiners who are willing to help you learn the role. Testifying for the Defense is not traversing the 'dark side' as many may elude. It is simply a path that exists on the other side of the coin.

And the courtroom is metal's the edge.

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*Disclaimer: This blog is solely the opinions and experiences expressed by the author and in no way reflects the opinions, policies or beliefs of the U.S. Government, the DoD or United States Navy.