Sexual assault nurse examinations are now very important in responding to sexual assaults—both in treating victims and in collecting forensic evidence. Because the presence of genital injury can be a factor in the prosecution of a sexual assault case, a recent Justice Center study conducted in conjunction with Forensic Nurse Services looked at the relationship between a patient’s condition at the time of an assault and the time elapsed between the assault and its report and the presence or absence of genital injury. The study also examined the effect of the presence of genital injury on legal case resolutions and assembled descriptive data on a broad sample of cases handled under the Sexual Assault Response Team (SART) protocol.
The Sexual Assault Response Team includes a law enforcement official, a sexual assault nurse examiner (SANE), and a victim advocate who work together to assess and treat injuries, to document the crime and gather forensic evidence and to assist the victim in handling the physical, psychological and emotional effects of the assault. The group does not work on all sexual assault cases. If law enforcement determines that it would be worthwhile to conduct a medical/forensic examination, SART is called into action. In general this determination is based on the need for medical attention, the likelihood of collecting forensic evidence, and minimum legal requirements of proof.
The Justice Center study sample included sexual assault nurse examinations conducted in Anchorage from 1996 to 2004, in Bethel and Fairbanks from 2005 and 2006, and in Homer, Kodiak, Kotzebue, Nome, and Soldotna in 2005.
The study was not an evaluation of sexual assault nurse examiner programs in Alaska, of police investigative strategies, or of prosecutorial success; instead, its goals were to examine the predictors of genital injury and the effect of the presence of genital injury on legal resolutions. There were several other key limitations to this study. The cases included in this study were not representative of all sexual assault cases; cases that were not reported to law enforcement and reported cases that were not referred to a sexual assault nurse examiner were not included. Data were based only on information reported by the patient and on observations, physical assessments and laboratory tests performed by the sexual assault nurse examiner.
The sample described here included 813 cases—female patients between the ages of 12 to 69 who reported a completed, non-consensual, and substantiated assault committed by a single suspect. In this sample, 99.9 percent of suspects were male (only one was female). Most patients (92%) and most suspects (72%) were either White or Native. In general, the percentage of patients was close to the percentage of suspects for each racial or ethnic group and, overall, intra-racial assaults were more common than inter-racial, although Hispanic, Asian, and Pacific Islander patients were more likely to have been victims of inter-racial assaults (Table 1).
At the time of the report, 59 percent of patients were under 30 years of age (Table 1). Suspects were generally older than patients, with 53 percent of suspects being 30 years of age or older (versus 41% of patients).
As shown in Table 2, in a major percentage of cases—86 percent—suspects were known to the victims. Most assaults initiated and occurred in private residences, with 51 percent of assaults initiating in the patient’s house, the suspect’s house, the patient and suspect’s house, or another’s house, and 65 percent of assaults occurring in one of these (Table 3). Other common locations for initial contacts were the outdoors (for 19% of assaults) and bars (for 15% of assaults). Fewer assaults actually occurred in these types of locations (9% of assaults occurred outdoors and only one assault, less than one percent, occurred in a bar).
Alcohol use was frequent among both suspects and patients, with 86 percent of suspects and 75 percent of patients using alcohol. Drug use was less frequent, with 17 percent of suspects and 14 percent of patients using drugs. Levels of alcohol use among patients were often quite high. Table 4 presents information on the patient’s condition at the time of the assault. Almost a third of the patients (32%) indicated that they were passed out at the time of the assault; 73 percent indicated that they were alcohol intoxicated; and 11 percent indicated that they were drug intoxicated. Only 23 percent of patients indicated that they were sober at the time of the assault. These percentages were derived from information reported by the patients. When the investigators reviewed all evidence within each report, similar estimates were obtained, with 22 percent of patients sober at the time of the assault, 42 percent intoxicated but awake, and 36 percent incapacitated (i.e., unconscious or passed out).
A total of 17 types of sex acts were recorded, as reported by patients (Table 5). Patients may not always know or remember the details of the assault. The most common sexual act reported was penile penetration of the vagina—reported by 90 percent of patients. These would be aggravated offenses meeting the legal requirements for sexual assault in the first, second, or third degree (or sexual abuse of a minor in the first, second, or third degree), all punishable as felonies (Unclassified, Class B, or Class C). (In general, any form of penetration or attempted penetration, defined by Alaska Statute § 11.81.900 as “genital intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, of an object or any part of a person’s body into the genital or anal opening of another person’s body” is a felony.) The vast majority of assaults were serious enough to be punishable as felonies.
Very detailed information was collected on both genital and non-genital injuries of the patients. Only a summary of this information is presented here. Non-genital injuries were found for 55 percent of patients and genital injuries were found for 43 percent of patients. On average, patients had 2.0 non-genital and 1.4 genital injuries. The most common types of non-genital injuries included bruising and abrasions, with the most common sites being legs and arms. The most common types of genital injuries included lacerations, followed by abrasions and bruising.Over half of the patients reported the assault within 12 hours (Table 6). More specifically, 13 percent reported within two hours, 33 percent reported within four hours, 58 percent reported within 12 hours, 78 percent reported within 24 hours, and 95 percent reported within three days.
Of the 813 reports included in this sample, 263 (32%) were referred to the Alaska Department of Law for prosecution (Table 7). Of these, 175 were accepted for prosecution and 140 of those cases accepted for prosecution resulted in a conviction. Once referred for prosecution, cases had a high likelihood of getting accepted (67%) and, once accepted, cases had a high likelihood of resulting in a conviction (80%). Overall, 32 percent of reported cases were referred, 22 percent were accepted, and 17 percent resulted in a conviction.
Correlates of Genital Injury
To achieve a greater understanding of the factors that influence the risk of genital injury and to assist sexual assault nurse examiners in forming evidence-based opinions regarding the presence and absence of genital injury, we identified two key factors that could affect genital injury—the patient’s condition at the time of the assault (i.e., whether the patient was sober, intoxicated, or incapacitated) and the time elapsed from assault to report (Table 8). A victim’s use of alcohol may significantly lower the risk of genital injury as it may lower the amount of force used during the assault. If so, this can explain why genital injuries may not be visible. Time elapsed from assault to report is important because genital injuries may heal over time, again lowering the probability of a successful prosecution. In general, time elapsed from assault to report hinders the collection of forensic samples and the administration of sexual assault health care (e.g., prophylaxis medication or emergency contraception).
Contrary to expectations, however, patient condition at the time of the assault did not significantly impact genital injury—either the presence of injury or the frequency of injury. Injuries were present for 43 percent of sober patients, 47 percent of intoxicated patients, and 40 percent of incapacitated patients. Although incapacitated patients were the least likely to have genital injuries, the difference was not statistically significant. Similarly, the time elapsed from assault to report did not significantly impact the presence of genital injury.
Although the patient’s condition at the time of the assault and the time elapsed from assault to report did not impact genital injury, for this study sample nine other factors were found to significantly predict the presence of genital injury. Final results showed that genital injury was significantly more likely to be present if the case was one reported before 2003; if the patient did not engage in consensual sexual activity within 96 hours prior to the assault; if the assault included vaginal penetration; if ejaculation had not occurred during the assault; if the examination included an anoscope exam; if an alternative light source was used during examination; if the patient required a genital follow-up exam; if the patient also had non-genital injuries; and if the patient was emotionally expressive at some point during the interview/examination process.
Eight factors were significantly related to the frequency of genital injury. The number of genital injuries was significantly higher for cases from before 2003; for patients between the ages of 12 and 17 (rather than 18 to 49); for cases in which the assault included vaginal penetration; for cases in which an anoscope examination was performed; for patients requiring a genital follow-up exam; for patients who also had non-genital injuries; and for patients who were emotionally expressive at any time during the interview/examination process.
The clinical relevance of these findings is not completely clear. For example, it is unclear how engaging in consensual sexual activity within 96 hours prior to the assault would decrease the presence of genital injury. The genitalia of sexually active women may show tissue differences from those of less sexually active women, but additional research is needed to explore these potential explanations. Similarly, it is unclear why ejaculation would decrease the presence of genital injury. Suspects who are unable to ejaculate may use more force or may engage in additional sexual acts. Some of these effects likely capture unmeasured or unidentified factors that are related to the acuity of the sexual assaults. As the sexual assaults become more acute, the presence and frequency of genital injury also increase. It is noteworthy that when patients suffered non-genital injuries (an indicator of acuity), they were significantly more likely also to have genital injuries and had significantly more genital injuries. Other unmeasured factors that may raise the acuity of the sexual assault include suspect sexual dysfunctions, which may be exacerbated by alcohol use. This again may result in increased force and in multiple sex acts, also affecting the presence and frequency of genital injury. Additional research is needed to examine the validity of these explanations.
Effect of Genital Injury on Legal Resolutions
The second goal of this analysis was to examine the extent to which the presence of genital injury impacted the likelihood that cases would be referred for prosecution, accepted for prosecution, and result in a conviction. Most of the prior research suggests that effective prosecutions of sexual assault offenders are indeed difficult in the absence of genital trauma. Our findings, however, showed no relationship between genital injury and legal resolutions (Table 9). Although the presence of genital injury slightly increased the likelihood that a reported case would be referred for prosecution, slightly increased the likelihood that a referred case would be accepted for prosecution, and slightly decreased the likelihood that an accepted case would result in a conviction, none of the effects were large enough to be statistically significant. Similarly, although the number of genital injuries was slightly higher in referred cases than in non-referred cases, slightly higher in accepted cases than in non-accepted cases, and slightly lower in convicted cases than in non-convicted cases, none of these effects were statistically significant. Overall, genital injury had no effect on legal resolutions.
Instead, five other factors were found to significantly impact the likelihood that a reported case would be referred for prosecution. The odds of referring a case for prosecution were significantly larger if the case was referred by the Alaska State Troopers; if the patient was not disabled; if an alternative light source was used during the examination; and if suspect identity was known. In addition, the odds of referring a case for prosecution increased as the number of non-genital injuries increased.
Three factors were found to significantly impact the likelihood that a referred case would be accepted for prosecution. The odds of referred cases being accepted for prosecution were significantly larger in cases with sober patients than in cases with intoxicated patients and in cases without masturbation. The odds of referred cases being accepted for prosecution were also significantly greater if the patient received a genital follow-up exam.
Finally, two factors were found to significantly impact the likelihood that an accepted case would result in a conviction. The odds of an accepted case resulting in a conviction were significantly greater if the patient did not test positive for a sexually transmitted infection or another genital infection and if the assault was intra-racial rather than inter-racial.
Many of the factors that predicted legal resolutions were evidentiary factors. A separate study completed by the Justice Center with the Alaska State Troopers revealed that evidentiary factors were the most important reasons for not accepting charges that had been referred. (See “Sexual Assaults Reported to Alaska State Troopers” in this issue.) The most obvious was whether the suspect’s identity was known. For obvious reasons, cases were more likely to be referred for prosecution if the suspect’s identity was known—that is, cases were less likely to be referred as the difficulty of the investigation increased. Nevertheless, while cases were more likely to be referred when the suspect’s identity was known, 16 percent of the cases without a known suspect identity were referred for prosecution. Exploring these cases further may provide insights for successful investigations.
Other factors that may increase the difficulty of the investigation or the collection of evidentiary factors include disabilities and intoxication. Cases with disabled patients are often significantly more difficult to investigate because of cognitive, psychiatric, or physical impairments. Cases with intoxicated patients are more difficult to investigate because patients may not recall all of the details of the assault. Memory and ability to provide information may be impaired due to intoxication. In addition, intoxication may involve blame and undermine believability. Additional research is necessary to determine how best to overcome such evidentiary limitations.
Finally, it is also important to examine the impact of non-genital injuries (recall that non-genital injuries were correlated with genital injuries). Cases were more likely to be referred for prosecution as the number of non-genital injuries increased. Non-genital injuries are an important evidentiary factor for prosecution because they may be perceived as better evidence that a sexual assault occurred than genital injuries. While consensual sexual activity can cause genital injuries, it rarely causes non-genital injuries. It is therefore more difficult for defense attorneys to argue that the sexual activity was consensual when non-genital injuries are documented.
A valid legal resolution can be an important component, although not the only one, in the healing of victims of sexual assault. Facilitating the legal process in sexual assault cases is one of the goals of sexual assault nurse examinations and the Sexual Assault Response Team. The research presented here provides a more nuanced understanding of the nature of the forensic evidence and its impact on the prosecution of cases. However, we must not forget that sexual assault nurse examiners have multiple roles; their key goal is not to secure successful legal resolutions. Instead, their key goal is to provide competent and compassionate nursing care that promotes healing of the patient’s physical, psychological, social, and spiritual health. There is no doubt that this goal is better achieved, now that we have trained sexual assault nurse examiners available.
André B. Rosay is an Associate Professor and the Interim Director of the Justice Center. Tara Henry is President of Forensic Nurse Services. The project was funded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice (Grant No. 2004-WB-GX-0003). Points of view in this article are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.