Writing Opinion on Sexual Assault

Although I had four lectures to complete 'sexual offences' I was unable finish with 'writing opinion on sexual assault'. Therefore, I am writing this article explaining how to write the opinion at the end of the medico-legal examination of a victim of alleged sexual assault. 

After the examination is complete the forensic medical examiner is supposed to give a preliminary opinion to the accompanying police officer so that they will be able to decide what further action they should take with regard to the case.  Subsequently when the summons is received from the court the doctor should send a Medico-Legal Report, which should include their ‘opinion’ inter alia other information. Unfortunately this opinion has to be based, more often than not, on the physical findings and not on the results of forensic science investigations. 

Since ‘rape’ is a legally defined term the doctor should never use it in his/her report.  The court would arrive at their verdict as to whether the alleged victim has been ‘raped’ by the accused only after the court trial is concluded. In the same way the doctor should not use other legally defined terms as well, which describe particular sexual offences, such as ‘incest’, ‘grave sexual abuse’, ‘unnatural offences’ etc. Their duty is to express the opinion about whether particular sexual act has occurred as alleged by the alleged victim or suspected by any other party such as police, parents or social workers. For instance when the doctor concludes that there has been peno-vaginal penetration the court's duty is to decide whether it is ‘rape’ or not.  

When expressing opinion on cases of alleged sexual abuse the doctor can make use of ‘general’ injuries as well as ‘genital injuries’. When the alleged victim presents with ‘general’ injuries the doctor is generally required to express his/her opinion whether they are consistent with the alleged history or suspicion of ‘restrain’ and ‘resistance’ during the sexual act. When there are ‘genital’ injuries the doctor’s duty, in terms of opinion, is to conclude whether they are consistent with the alleged or suspected sexual act. Using these various opinions is the duty of the court to arrive at most appropriate verdict. 

Different kinds of opinion on genital injuries  

1.       Absence of injuries to the genitalia is inconsistent with the alleged sexual act.

For instance, a man is alleged to have sexually penetrated an eight year old girl, who does not have a previous history of sexual experience, twelve hours ago. She complains that she had bleeding per vagina and severe pain during the penetration. The doctor’s examination is negative. Since the doctor may expect to see some form of an acute genital injury according to the history they would express that the ‘absence of injuries to the genitalia is inconsistent with the alleged sexual act’ at the conclusion of their examination. Nevertheless, they should qualify their opinion by adding that ‘it does not mean that a sexual act which is unlikely to leave signs has not taken place’.

2.       Absence of injuries to the genitalia is not inconsistent with the alleged sexual act.

A married woman alleges that she has been 'raped' by a man twelve hours ago.  The medico-legal examination is negative. Since 'rape' of married women does not usually leave signs the examining doctor would tell the police that the 'absence of injuries to the genitalia is not inconsistent with the alleged sexual act'. 

3.       Presence of certain changes (redness and oedema) was unlikely to be due to a sexual act as there are many natural causes for these changes irrespective of whether there is an allegation or not.  These kinds of difficulties usually occur in cases of child sexual abuse as there usually is no proper history. The doctor should exclude all the other possibilities preferably with the help of a paediatrician. They should re-examine the child especially there is an allegation of a sexual act. They should also add that even if these changes are due to natural causes it does not automatically exclude the possibility of sexual abuse as many forms of sexual abuse do not leave signs.

4.       Presence of certain injuries (abrasions and bruises) in the genitalia is likely to be due to a sexual act especially when there is an allegation. However, before expressing this opinion the doctor should exclude natural causes such as bleeding disorders and excoriation of skin and other forms of trauma such as accidental injuries.

5.       Presence of certain genital changes e.g. deep posterior notch is likely to be due to a past sexual act even in the absence of specific allegation especially in pre-pubertal girls. (In pubertal girls there is no enough scientific data to come to such a conclusion.)

6.       Presence of certain acute or healed injuries (hymenal and posterior fourchette tears and ‘transections’) strongly indicates a penetrative sexual act specially in the absence of accidental penetrative injury.

7.       Presence of certain changes (spermatozoa in vagina and pregnancy) definitely indicates sexual contact  but not penetration. It is known that spermatozoa are able to migrate into vagina when deposited on the vulva and though very rare a woman can get pregnant by such an occurrence.

These are the different kinds of opinion a forensic medical examiner would express at the conclusion of their examination. There is no hard and fast rule about the 'style' of opinion one is supposed to provide. As long as the message is correctly understood by the receiver, (the police lawyers and court), the 'style' does not matter.

Priyanjith Perera

17/01/2013