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Rape Kit Allows Anonymous Collection of Evidence

Scheck, Anne

doi: 10.1097/01.EEM.0000342731.62402.59

The trauma of sexual assault coupled with the tough questions police officers have to ask often leads to a dazed victim unwilling to press charges. Unfortunately, by the time she recovers enough to want to fight back, the forensic evidence is lost, compounding the horror of the ordeal. A new kind of emergency department rape kit, however, could help law enforcement fight this.

A new federal regulation going into effect in 2009 requires all states to fund a new approach to the medical forensic exam in some emergency departments. Dubbed “Jane Doe rape kits,” the revised protocol allows for anonymous collection and storage of skin, hair, blood, saliva, and other evidence, which can be taken without a victim undergoing questioning by police and without her (or him) having to make an immediate decision about whether to file charges.

This will change things in many jurisdictions, explained Carey Goryl, the executive director of the International Association of Forensic Nurses in Arnold, MD. Currently, law enforcement authorization is needed for a forensic medical exam to proceed, and that authorization has proven a stumbling block in some cases.

The police officer evaluates the victim on the basis of professional judgment, an assessment that might not favor a teen runaway or a prostitute. “Anecdotally, I have heard from so many [nurses] that police would say, ‘We don't think a crime occurred here,’” Ms. Goryl said. “The decision shouldn't solely be made by the first responding officer so early in the process.”

Nor are police the only skeptics. Emergency physician reports include stories of adolescent girls who said they were raped to avoid parental punishment for staying overnight with their boyfriends.

The law, which has a January compliance deadline, improves access to medical care for sexual assault victims age 13 and up by eliminating the immediate pressure on a victim about whether to report the incident to police. It also removes the early and potentially intimidating encounter with police, and it requires states not to bill victims for the medical forensic exam.

A rape victim is psychologically overwhelmed when arriving in the ED, and yet prosecution of the crime can hinge on the time in which the evidence is collected. States have different legal standards for that interval, but when it is exceeded, only the medical exam is performed. (Psychiatr Serv 2001;52[6]:733.) And some emergency physicians have been reluctant to gather evidence for fear of subpoena and litigation challenging their qualifications in the process. (Office for Victims of Crime Bulletin 2001;4:2.)

That assertion was countered by William P. Sullivan, DO, JD, the president of the Illinois College of Emergency Physicians, who supports the new legislation but takes issue with that particular reason for it. “I have worked with many physicians over the years, and have personally not seen physicians avoiding rape exams,” he said. “Subpoenas can be frustrating, but they are part of our job. Emergency physicians are part of a safety net. Obtaining evidence of crimes, testifying in court when necessary, and doing our part to protect the public from criminals is one strand in that net.”

Rebecca Campbell, PhD, a professor of psychology at Michigan State University in East Lansing, said she expects the kits to help victims, but said she is “curious to see how anonymous rape kits will be perceived by both survivors and by medical practitioners.” Dr. Campbell, who has studied the effectiveness of Sexual Assault Nurse Examiner programs, said the kits have the potential of being a useful option for survivors because it is so difficult to make such a major decision in the immediate aftermath of such terrible trauma. Dr. Sullivan added that media attention to the kits “will highlight the availability of rape exam in the ED, and will encourage victims to report crimes.”

Because it is up to each state to formulate the provisions for the new regulation, there's likely to be a certain amount of variation in the way it is implemented. “But such open-endedness isn't a bad thing,” Ms. Goryl observed. “I don't think having a ‘one-size-fits-all’ is a good approach.” The kits are “very patient-centered,” she stressed, adding, “I hope the focus stays that way.”

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