To competently represent an individual accused of rape or sexual assault, a criminal defense lawyer must be well aware of how to challenge the results of a sexual assault examination or to use the examination to challenge the alleged victim’s allegations. A “rape kit” is also known as a Sexual Assault Evidence Collection kit. Although it is a “kit” containing evidence collection tools, including swabs, combs, envelopes and bags, administering a rape kit is a highly methodical procedure for documenting sexual assault allegations.
When a person claims to have been sexually assaulted arrives at a hospital, the hospital staff, usually an emergency room nurse, conducts a preliminary physical examination of the patient to determine if she requires immediate medical care, completes the necessary intake forms, and notifies the SANE (sexual assault nurse examiner) that she is required at the hospital. To become a SANE in Massachusetts, a registered nurse must complete a 40-hour training course, assist a SANE with ten sexual assault examinations, complete ten supervised sexual assault examinations, and pass a written examination.
While the regular hospital staff treats the alleged victim as a patient of the hospital, the responsibilities of the SANE are quite different. She should not perceive the alleged victim as her “patient,” but as a possible crime scene. A SANE is obligated to follow strict protocols as she collects possible evidence, documents any injuries, and carefully memorialize the alleged victim’s allegations. Though some SANEs disagree, they are, as the professionals authorized to administer a rape kit, charged with performing their tasks objectively, not as a “victim” advocates.
How a SANE Performs the Examination
As she begins her investigation, the SANE obtains an initial statement from the alleged patient, allowing her to focus her physical examination and documentation efforts. The alleged victim may submit to the entire examination or limit the scope of the examination. With the permission of the alleged victim, the SANE works her way through the following protocols:
- Physically and thoroughly examines the alleged victim;
- Documents injuries on diagrams and included forms;
- Asks the alleged victim a series of questions on forms and documents the answers, including whether she has vomited, defecated, smoked cigarettes, and washed;
- Uses swabs to collect possible sperm, semen, saliva, sweat, and blood samples for possible DNA analysis;
- Uses combs to collect any other evidence possibly left behind by the alleged assailant, including pubic hairs;
- Stores the swabs, the victim’s clothing, and other available evidence in collection bags;
- Photographs any injuries or signs of trauma;
- Obtains a blood sample from the alleged victim for possible toxicological testing;
- Provides the completed rape kit to the police;
- Informs the hospital staff of any medical attention the alleged victim requires;
- Proscribes antibiotics and the day-after pill;
- Arranges for any necessary psychiatric care; and,
- Provides the alleged victim with instructions for after care and contact information for law enforcement services.
Once the SANE has completed the rape kit, the police retrieve the collected evidence and transport to the State Police Crime Laboratory for possible follow-up investigation of the allegations, including testing of the samples. Though an alleged victim may submit to a sexual assault examination, she is not obligated to cooperate with law enforcement’s efforts to prosecute the alleged perpetrator. In those instances where the alleged victim has declined to report the allegations to the police, the evidence collection kit is assigned a tracking number. The SANE provides the alleged victim with the tracking number so that, in the event that she later decides to report the alleged assault to the police, the rape kit can be properly identified. The Crime Laboratory will usually maintain the rape kit for a period of at least six months.
Though an individual accused of sexual assault may be unnerved that the alleged victim submitted to a sexual assault examination, a properly administered rape kit may assist the defense, especially if the SANE observes no evidence of trauma and collects no evidence consistent with the alleged victim’s accusations. Attorney Kevin J. Mahoney has repeatedly persuaded juries to acquit clients charged with sex crimes where the alleged victim submitted to a rape kit.
Contact a Massachusetts Criminal Lawyer
Kevin J. Mahoney is a Cambridge, MA Defense Lawyer. Call us at 617-492-0055 to schedule an in-office consultation with Attorney Mahoney.
