To confront sexual violence,we must train non-forensic experts to perform medico-legal evaluations

Abstract

Sexual violence is a global crisis. Forensic evaluations are critical for obtaining evidence and increasing the likelihood of accessing justice, as many cases fail due to lack of evidence or poor evidence. In some countries, only board-certified forensic specialists are authorized to conduct forensic evaluations. However, the high number of sexual violence cases coupled with the shortage of forensic physicians make that restriction a fundamental impediment to a rights-based response to sexual violence crimes. Governments and regulatory bodies should expand the pool of those capable of conducting forensic sexual violence evaluations by partnering with clinicians of different specialties and facilitating their training.

Keywords

Human rights forensic medicine law medical-legal health profession education

Introduction

Sexual violence is a global public health crisis.¹ The World Health Organization (WHO) reports “nearly 1 in 3 women globally have experienced physical and/or sexual violence by an intimate partner or sexual violence, not including sexual harassment, by any perpetrator.”¹ For survivors, seeking help from the medico-legal system can be intimidating and retraumatizing, involving a range of encounters with clinicians, police officers, lawyers, and judges. Any obstacles in the process serve only to discourage survivors already reluctant to disclose assaults from getting the health care they need and the justice they deserve.^2,3

Effective response to sexual violence—from treatment, psycho-social support and documentation to medico-legal assessments, case management, police investigations and prosecutions—is a multifaceted and complex process. It merits both the delivery of personalized and holistic healthcare for the survivors as well as the pursuit of legal justice and social protection against such perpetrators. The importance of the latter cannot be discounted when addressing the personal and societal impacts of these acts of violence.

The ability to mount robust responses to sexual violence crimes varies from place to place based on the cultural attitudes to support these cases as well as the availability of resources, health care system structure, and the aptitude of local medical, law enforcement, and legal professionals to collect, preserve, and use forensic evidence.^1,4 Ensuring survivors obtain the justice they deserve thus depends on a multifactorial response system centered on the survivors.

Limitations within the medico-legal process

Forensic medical evaluations are clinical encounters whose main goals are to document and obtain narrative, physical, and laboratory datapoints for use in medico-legal processes. As such, they are different from clinical encounters for the purpose of diagnosing or treating an individual. Such evaluations are critical for obtaining evidence and providing the survivor with a higher likelihood of accessing justice, as many sexual violence cases fail due to lack of evidence or poor evidence. However, the high number of sexual violence cases coupled with the shortage of forensic physicians in many parts of the world make that restriction a fundamental impediment to a patient-centered, rights-based response to sexual violence crimes. This is exacerbated by the requirement, in some parts of the world, that only board-certified forensic specialist physicians be authorized to conduct forensic evaluations of sexual violence survivors.

Because of shortages of board-certified forensic examiners, survivors may not only face long waits in accessing trauma-focused care, but biological evidence may be lost or degraded, and wounds may have healed. In addition, in many settings survivors have to travel long distances, take time away from work or family obligations, arrange and pay for their own transport—factors which create additional barriers to evidence collection and preservation, especially for the indigent and/or people from rural areas.⁵

In Peru, for example, the state only supports the training and employment of a small number of physicians to deal with sexual violence; these physicians are all located in either Lima or provincial capitals, making it impossible for many survivors to access these clinics to obtain the required exam.^5,6 The situation is similar, according to experts, in other parts of the world, including the Democratic Republic of Congo, Ghana, India, Kenya, Pakistan, Russia, Turkey, and Uganda, where there are few trained professionals to carry out medico-legal evaluations in a timely fashion, thus depriving the survivors of an opportunity to seek redress.^5,6

An official, state-sponsored board certification does help establish a baseline competency and set practical standards of conduct and skills. However, in some settings, limiting which clinical professionals are permitted to conduct forensic evaluations to just forensic doctors may present an insurmountable barrier to nearly all victims of sexual violence, regardless of where they live. This may be particularly true in low resource settings, where, in many instances, clinics do not have physicians at all on site, but employ nurses or midwives.^7,8

On top of that, forensic physicians are often state employed, which may limit their effectiveness or unnecessarily exclude other clinicians: their association with the state may affect their interaction and trust building with the victims or survivors; they represent a very small number of the healthcare workforce, thus affecting access to evaluations; and, lastly, this designation may serve as a basis for the state to exclude qualified, non-forensic experts from conducting evaluations for medico-legal purposes, further compromising access.

This reliance on “forensic experts” or board-certified forensic specialist physicians, we argue, is short-sighted and harmful to victims and survivors and limits their ability to report their assaults and ultimately seek justice.

Broadening the scope of who should be trained

Although the shortage of forensic physicians is a big driver to broaden the scope of respondent physicians, there are other variables that support this change. Importantly, survivors of sexual assault often seek treatment in emergency departments, primary care practices in their communities, or pediatric practices.^9,10 These frontline points of care often lack forensic specialists and are instead staffed by a other clinicians, mostly from the primary care workforce. These clinicians, whether doctors, nurses, or other healthcare practitioners, are trained in clinical care, from history taking to patient examination and much more, but often either lack the forensic training required of them by the legal system or are excluded from such training entirely. As such, although survivors may be receiving medical care, one must also consider whether comprehensive professional care is being delivered, addressing physical and mental trauma as well as social and legal factors.

The need to broaden the pool of experts who can collect forensic medical evidence of sexual violence is reinforced by literature by academics and medical-legal practitioners. Ludes et al.¹¹ establish that survivors seeking post-rape care should “be examined by a multidisciplinary medical team, including a specially-trained medical legal examiner.” A Brazilian study points to the lack of pre-professional academic training on the clinical management of sexual assault means that professionals are unable to work in integrated and multisectoral ways to support survivors, highlighting the need to train additional categories of healthcare workers to support survivors of sexual violence.¹²

The discrepancy between the number of cases and those qualified or allowed to conduct forensic exams is in part what has motivated various governments, multilateral organizations, and public health and human rights non-government organizations such as Physicians for Human Rights (PHR) to design specialized trainings for clinicians other than forensic experts.

For example, to establish a uniform medico-legal documentation standard to promote greater accountability for sexual violence crimes, the 2014 Global Summit to end Sexual Violence in Conflict organizers launched the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict Zones.¹³ The protocol applies to a broad audience of clinicians and health professionals and is not limited to forensic experts.

Likewise, the WHO created guidelines for medico-legal care for victims of sexual violence.⁵ The guidelines touch on key principles pertinent to the medical documentation of sexual violence, including interviewing techniques, forensic photography, and the collection of physical evidence. The WHO explicitly broadens the scope of who might benefit from the guidelines and specialized training, beyond forensic physicians. The WHO states that the guidelines “will be useful for a range of professionals who provide care for victims of sexual violence: health service facility managers, medico-legal specialists, doctors and nurses with forensic training, district medical officers, police surgeons, gynecologists, emergency room physicians and nurses, general practitioners, and mental health professionals.” These protocols and guidelines are meant to be adapted to specific local and national circumstances, taking into account the availability of resources and national policies and protocols.⁵

Evidence has shown that standardization and the use of protocols can positively impact clinical outcomes and the quality of forensic evidence collected in hospitals and centers that specialize in the treatment of survivors of sexual violence. For example, one Belgian study found a dramatic increase (10% to 90%) in the proportion of survivors who receive optimal care after introduction of new protocols and staff training.¹⁴ Training and standardization allow for more survivor-centered care by reducing the number of times a survivor must repeat the story of their assault.¹⁵ The benefits of protocols not only contribute to better patient care, but may also increase the possibility of matching a victim’s genetic material to a perpetrator,¹⁶ and thus, to achieving justice for the survivor.

Such considerations expanding forensic documentation beyond specialists are instrumental in addressing the gaps between points of care and availability of experts able to engage in the formal justice process for survivors. To ignore this reality greatly reduces the possibility that evidence of sexual violence that courts can use to prosecute perpetrators will be routinely collected, properly preserved, and securely stored. Therefore, clinicians who practice in student health, women’s health, pediatric health, and primary care facilities must also be prepared to evaluate sexual violence victims, treat their injuries, collect forensic evidence, and help meet their patients’ other medical, legal, and psychosocial needs.

The US landscape

Multiple professional organizations in the United States (e.g. in ob-gyn, family medicine, emergency medicine) offer training for their members to facilitate adequate responses to sexual violence at the community and primary care level, without requiring full forensic certifications.^17–21 Increasingly, the United States and a considerable number of other countries have turned to forensic nurse examiners as a way to respond to a shortage of forensic doctors.²² The specially trained nurses conduct forensic evaluations, collect evidence, provide comprehensive care to victims of sexual violence, and are now integral partners in contemporary medico-legal systems worldwide.

The US governmental guidelines for the assessment of pediatric child abuse,^23,24 for example, recognize that even without conferring special forensic designation, all pediatricians, generalist physicians, and advanced practice providers (physician assistants and nurse practitioners) should know how to effectively work with child victims. Recognizing the challenges to local response capacity and the shortages in the number of trained child abuse pediatricians, the guidelines note that: “Communities across the country rely on a range of health care providers (including physicians, advanced practice nurses and physician assistants, and registered nurses) who have been specially educated and have completed training requirements to perform this examination for a pediatric population.”

The “National Training Standards for Sexual Assault Medical Forensic Examiners, US Department of Justice Office on Violence Against Women,” specifically mentions emergency room physicians, family physicians, and others as a target audience for their training.²³

Evidence of efficacy

The global literature on training community-based clinicians in medico-legal evaluations is extremely limited. One study from South Africa found gaps in medical education and the practice of clinical forensic medicine among community-service doctors.¹⁰ The authors concluded: “proper training of undergraduate medical students prior to their community-service posting will ensure that medico-legal documentation is completed correctly, leading to the presentation of credible evidence in a court of law in order to ensure successful conviction of alleged perpetrators.”

A study in Tanzania using health care workers (from physicians, to nurses, to clinical officers) as forensic evaluators found that “training on the management of sexual violence is feasible and the results indicate improvement in healthcare workers’ knowledge and practice.” The researchers added that “it is clear that capacity building of healthcare workers and the availability of support services are necessary ingredients for the survivors of sexual violence to address their short- and long-term health needs.”²⁵

Some practical evidence of success can be found in the Kavumu case in the Democratic Republic of the Congo. In that case, a local court convicted 11 men, including a sitting member of parliament, of crimes against humanity for raping dozens of young girls. The doctors and nurses at Panzi General Reference Hospital in Bukavu who treated the patients were not forensic specialists, but they had been trained by PHR to conduct comprehensive forensic evaluations on sexual violence survivors and they were able to effectively capture, document, and preserve forensic medical evidence. This compelling medical evidence played an important role in informing the judgment.²⁶

An example set by the Istanbul protocol

Finally, experience with the “Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol)” may serve as an example.^26,27 Clinicians of all specialties have been vital to the implementation and application of the Istanbul Protocol (IP), the UN-approved, universal gold standard guidelines for assessing allegations of torture, which PHR took a lead in formulating.²⁸

Just as objective clinical evidence of torture increases the likelihood that torture survivors receive asylum in countries outside of where the torture occurred, clinical evidence of sexual assault can increase the probability of successful prosecution of alleged perpetrators.²⁹ As with torture, non-forensic specialist clinicians can help assess, document, and collect evidence to help support accountability processes and justice for victims of sexual violence. Even trained non-medical evaluators such as attorneys can perform similar evaluations and “serve as the basis for an expert opinion in court,” according to a recent study describing the use of non-clinicians to in collecting evidence from torture survivors in Thailand.³⁰

Basic clinical skills and competencies are a prerequisite, along with additional specialized training on sexual violence and its clinical and mental health consequences. However, as stated in a March 2019 meeting of global IP experts in Copenhagen, Denmark, conducting medico-legal evaluations “does not require certification as a forensic expert, even though this may be the normative practice in some States and sometimes used to intentionally exclude the testimony of independent clinicians from court proceedings.”

Summary

We believe that to be useful, effective, and survivor-centered, health professionals need to expand their traditional clinical roles to be change-makers and active participants in securing justice for sexual violence survivors. This level of involvement requires a robust platform for clinicians—any clinician with basic training—to document the physical and psychological health effects of sexual violence, which could be legally used in criminal proceedings to successfully prosecute perpetrators in their communities.

Our team at PHR and the partners we work with in East and Central Africa, comprised of clinicians, police officers, lawyers, and judges, see numerous cases fail routinely because of poor evidence. Our proposal to widen the range of clinicians who perform these evaluations presents a concrete and effective model for medical professionals seeking to support survivors of sexual violence in their quest for comprehensive medical care and treatment and meaningful access to justice and accountability. Although the shortage of forensic experts is a common issue globally, it is more acute in low- and middle-income (LMIC) countries.

This model can and should be replicated in other resource-constrained locations globally, as clinicians play an essential role in offering a dignified and human rights-affirming path forward for survivors of sexual violence, a crime that is notoriously difficult to prosecute because of the absence of compelling evidence to support allegations. We believe that if more generalist clinicians are empowered to carry out these forensic exams then the quality of holistic care for a greater number of survivors would increase substantially.

Governments and regulatory bodies around the world should expand the pool of health professionals capable of conducting forensic or medico-legal sexual violence evaluations by partnering with clinicians of different specialties and facilitating their training to perform such evaluations. This will require discussions on a national level on a variety of issues, including who is qualified to sign forensic forms and who is authorized to serve as an expert witness in court.

Stronger action may be necessary in LMICs with limited economic and clinical resources, and where regulatory issues may be less progressive.

Widening the reach of clinicians who can carry out medico-legal exams can only be effective if governments and international organizations also commit the resources to training medical professionals to be able to do this work with adequate competency and skill. To ensure quality, national and international organizations will have to collaborate on the development of standardized quality metrics and competency assessments. Capacity development will require time, effort, and funding, but it is necessary to effectively respond to the enormity of the global problem of sexual violence, and it is paramount for meaningful and holistic support to survivors.

Footnotes

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

ORCID iDs

Ranit Mishori

Thomas McHale

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