Abstract
While research has documented the evidentiary significance of sexual assault medical forensic exams (SAMFEs) to case processing, there has been less focus on SAMFEs’ relevance to extralegal case characteristics. This study, through focus groups with police officers and prosecutors, illuminates the link between two important case processing factors: the SAMFE and perceptions of victim credibility. The majority of respondent narratives about the utility of the SAMFE point to how it strengthens or weakens perceptions of victim credibility. This link points to the SAMFE’s important role in early case processing before investigators send DNA evidence for forensic testing.
Introduction
As criminal legal system-based responses to sexual assaults have evolved over the past several decades, debates between practitioners and researchers remain regarding the best ways to investigate and prosecute these crimes. Changes in societal attitudes toward victims (McMahon, 2011), investigative and prosecutorial techniques, resources allocated to community responses (Zweig et al., 2021), and survivors’ engagement in the criminal legal process (Office on Violence Against Women [OVW], 2013) have contributed to a movement toward improved investigation and prosecution methods that rely less on subjective biases toward victims and focus more on objective, probative evidence (Campbell et al., 2017). Central to these efforts is the role of the sexual assault medical forensic exam (SAMFE) in investigating and prosecuting criminal cases, revisiting cold cases, and ensuring justice for past and future victims (OVW, 2013). As stories of large numbers of unsubmitted and backlogged sexual assault kits (SAKs) have captured the attention of national and local media (Quinlan, 2020), practitioners and researchers continue to debate how SAMFE evidence should be considered and processed, including whether and how to prioritize testing of large volumes of forensic evidence, how to follow up with previously closed cases after forensic testing, and what practical role SAMFEs play in investigative and prosecutorial decision-making (Campbell et al., 2017; Spohn, 2016).
Despite the attention to SAMFE evidence in case processing, many studies also show that forensic evidence is not the most important or salient factor in sexual assault cases. While we know that SAK-produced forensic evidence can be important, often in its critical role in establishing sexual contact, SAK forensic evidence may not always provide the “slam dunk” that investigators and prosecutors are looking for. This is because most sexual assaults involve victims and perpetrators who know one other (Black et al., 2011), eliminating the need to use DNA evidence from SAKs to establish the identity of a suspect. Decisions to test SAKs can be triaged by the forensic laboratories themselves, based on investigators’ and lab personnel’s perceptions of what cases are “real” instances of sexual assault (Campbell & Fehler-Cabral, 2020). Past research has also established a relationship between a SAMFE and case processing outcomes that often occur before forensic testing, such as arrest of a suspect (Schroeder & Elink-Schuurman-Laura, 2017).
What, then, is the role of the SAMFE and its associated evidence in case processing before forensic testing and if there is an already identified suspect? Through interviews and focus groups in two northeastern jurisdictions in the United States, justice system stakeholders responsible for investigating and prosecuting sexual assault cases explain the key ways in which the SAMFE has utility. While respondents frequently point to the forensic data’s utility in identifying suspects, all the other ways they identify the SAMFE to be helpful is related to how the SAMFE corroborates another key factor in case processing: perceptions of victim credibility.
This study furthers the research on the sexual assault kit’s impact on case processing and decision-making in several important ways. It extends our understanding of the SAMFE beyond its forensic DNA evidence by showing how case processing stakeholders attribute both legal and extralegal value to it. It examines the utility of the SAMFE evidence early in case processing, before investigators submit SAMFE-collected evidence for forensic testing. And it specifically points to the value of the SAMFE in corroborating perceptions of victim credibility in several different ways, including victims’ actions and behaviors around the SAMFE, corroborating expert opinion and documentation of the victims’ actions, and explaining potential gaps in victims’ memories that threaten their credibility. We establish this link by featuring qualitative data from investigators and prosecutors, allowing these important decision-makers to recount their own perceptions of the utility of the SAMFE in their work. This is a departure from past studies that are largely quantitative and focus on the evidentiary value of the DNA evidence found within SAKs and its association with various case outcomes, such as suspect identification, arrest, indictment, and conviction. The qualitative data herein allows us to illustrate another aspect of the SAMFE that is less about the forensic value of its associated evidence and instead focuses on the extralegal factor of victim credibility.
Review of the Literature
Sexual Assault Medical Forensic Exams (SAMFEs)
Sexual assault medical forensic exams, also known as sexual assault forensic exams (SAFEs) or medical forensic exams (MFEs), are the primary method for victims of sexual assault to receive medical attention and police to obtain physical and forensic evidence for investigating the crime (OVW, 2013). 1 The 2005 Violence Against Women Act defines a SAMFE as including, at a minimum, (1) an examination of physical trauma by a medical professional, (2) a determination of penetration or force, (3) an interview of the victim, and (4) the collection of physical evidence. The U.S. Department of Justice issued a revised SAFE Protocol in 2013, providing guidelines to local jurisdictions on how to conduct comprehensive SAMFEs that raise the standard for respectful and victim-centered care for a diverse population of victims, connect victims to culturally responsive services, and preserve evidence for future use (OVW, 2013).
The proliferation of the SAMFE occurred in conjunction with the increased use of forensic evidence in investigating and prosecuting crimes in the late 1990s as a result of forensic evidence technology advances. It was not until the creation of the FBI’s CODIS 2 system, however, that the use of forensic evidence in sexual assault crimes for the purposes of suspect identification increased (Campbell et al., 2017). Additionally, there has been a proliferation of trained Sexual Assault Nurse Examiners (SANEs), who are specially trained to collect forensic evidence for sexual assault investigations and provide more compassionate, victim-centered care. 3 Though specialized training is not a requirement to conduct an SAMFE and, as such, not all SAMFEs are conducted by trained medical providers in communities without such resources, research shows the use of SANEs resulted in higher quality forensic evidence and encouraged more victim participation in investigations and prosecutions (Campbell et al., 2009). Some research also has shown this inclusion of forensic evidence reduces investigators’ reliance on extralegal victim characteristics to make case processing decisions (Campbell et al., 2009). Aided by SANEs and specialty multidisciplinary teams, such as Sexual Assault Response Teams (SARTs), and in response to criticism around the criminal legal response to this type of victimization, the goal of SAMFEs was to produce better evidence and promote better relationships with and trust from sexual assault victims. This, in turn, improved the quality of corroborating evidence and victim participation needed for prosecutions.
The SAMFE typically contains several components, depending on local and state jurisdictional requirements or provisions of local SAMFE protocol (OVW, 2013). A sexual assault victim (ideally within a certain timeframe of no more than 72 or 96 hours, depending on the jurisdiction, after the assault) is referred to or presents at a hospital and requests or is provided the exam by a medical professional, such as a SANE. The exam’s two primary components serve separate purposes: the medical exam to assess the victim for immediate and long-term medical and health needs, and the forensic exam to collect forensic evidence. Specifically, the forensic exam includes: (1) the collection of physical evidence, such as swabs for seminal fluid or fingernail scrapings for suspect DNA, (2) forensic photographs to document injuries, and possibly (3) collection of toxicological evidence to determine alcohol- or drug-facilitated assault. The medical exam includes: (1) a medical examination for injuries, (2) STI and pregnancy testing, and (3) potentially emergency contraception or referrals for STI testing follow-up. The SAMFE provider also collects and documents the victim’s recollection of events during either the forensic or medical component of the exam. Additionally, victims may be referred to and/or meet with a rape crisis counselor or victim advocate who provides medical advocacy and support, discusses follow-up options for additional needs, and discusses next steps in a potential criminal investigation.
Investigative and Prosecutorial Decision-Making
Forensic evidence is but one case characteristic investigators and prosecutors consider in making decisions regarding sexual assault cases. The research literature has illuminated several other salient case characteristics that criminal legal system actors and juries consider when deciding whether to arrest, indict, and convict suspects. Scholars commonly divide these case characteristics into two categories: legal characteristics—such as the severity of the offense and the existence of certain evidence—and extralegal characteristics. Extralegal characteristics examined within sexual assault case decision-making typically include victim-suspect relationship, victim characteristics (e.g., gender, race, and age), victim behaviors (e.g., what the victim did or not did not do before, during, or after the assault; risk-taking behaviors (e.g., alcohol consumption or various forms of sexual activity), and victim background (e.g., whether or not the victim was engaged in commercial sex or had a criminal background). Many quantitative studies have examined these various case characteristics and their association with key case outcomes, with the saliency of specific case characteristics differing depending on jurisdiction, case sample, internal practices and culture within agencies, or the existence of a SANE or SART program (Alderden & Ullman, 2012b; Beichner & Spohn, 2005; Kerstetter, 1990; Spohn et al., 2001, 2014; Spohn & Holleran, 2001; Tasca et al., 2013). There is no consensus across studies and jurisdictions, however, on which characteristics are consistently predictive of case outcomes. For instance, one study of sexual assault cases in an Arizona city found that both extralegal and legal characteristics, including victim credibility and the availability of forensic evidence, predicted suspect arrest (Tasca et al., 2013), whereas another study of cases in a midwestern city found that only extralegal characteristics, particularly victim credibility, predicted arrest (Alderden & Ullman, 2012b). The variation in study outcomes could, in part, depend on the knowledge and skills of the criminal legal actors in the respective research sites.
As police officers investigate cases and process evidence, and prosecutors bring forth charges and prosecute suspects, their decisions throughout a case represent a “gateway to justice” (Kerstetter, 1990). Past research has documented the steps police officers take to investigate a sexual assault, including interviewing the victim, identifying the suspect, taking witness statements, processing physical evidence via crime lab submission, making arrests, and ultimately referring the case for prosecution. At each of these steps, investigators expend effort and make decisions around whether the evidence warrants the next step. Investigators may land on different decisions based on their experience and competencies.
When cases reach prosecution, it is the role of prosecutors to determine whether or not they want to pursue the case, and then how to pursue the case for ideally successful outcomes, whether it be conviction by plea or jury trial. Much research has examined the “downstream orientation” of prosecutors—or consideration of whether the evidence at hand would be convictable by a jury—when agreeing to charge or decline a sexual assault case (Frohmann, 1997). This “downward orientation,” coupled with agency policies around the criminal standard that a case must meet, means prosecutors have significant discretion and power over decision-making at multiple stages in case processing, specifically at the decision to prosecute a case but also even at the time of arrest (Pattavina et al., 2016).
At these multiple decision points during sexual assault case processing, investigators and prosecutors consider a variety of legal and extralegal factors. Despite inconsistency across which factors are most predictive of case outcomes, one pattern across studies is clear: police and prosecutors rely on their perception of victim credibility in making processing decisions. Investigators and prosecutors consider several different victim behaviors and actions to be indicative of credibility, such as the existence of conflicting victim statements or a victim withdrawing a statement or report. Quantitative studies of police processing have consistently shown the predictive power of perceptions of victim credibility in case outcomes (Alderden & Ullman, 2012b; Morabito et al., 2019; Spohn et al., 2014; Tasca et al., 2013). Qualitative studies have illuminated how police consider victim behavior and moral character, such as engagement in sex work or consumption of drugs and alcohol, in determining credibility and making arrest decisions (Campbell et al., 2015). The emphasis on victim credibility is also salient in prosecution decision-making under the “downstream orientation” framework: as prosecutors perceive victim credibility to be a key factor in convincing a jury of their case, prosecutors must take their own and the hypothetical jury’s perceptions of credibility into account (Spohn et al., 2001). As extralegal factors, including victim credibility, do not necessarily point to whether a crime occurred and often rely on biases and stereotypes around victim behavior and demographics, there have been attempts to mitigate potential biases among police and prosecutors. However, efforts such as increasing the number of female investigators or specialty prosecution units that focus on sexual assault cases, do not always result in less reliance on perceptions of victim credibility (Alderden & Ullman, 2012a; Beichner & Spohn, 2005).
SAMFEs Impact on Sexual Assault Case Outcomes
Campbell et al. (2015) documented four primary ways in which forensic evidence aids in the investigation and prosecution of sexual assault cases: (1) identifying unknown suspects, (2) confirming the identity of known suspects, (3) identifying “serial offenders” who have committed sexual assaults toward more than one person in two or more different timeframes and/or locations, and (4) exonerating suspects who are wrongly accused by proving they were not present at the time of the crime. Several studies have shown that sexual assault cases with forensic evidence proceed through more steps in case processing 4 and result in more arrests, charges, and convictions, particularly if that evidence was collected by trained SANEs (Campbell et al., 2009; Johnson et al., 2012; McGregor et al., 2002). In addition, there are other ways that SAMFEs can help cases progress beyond forensic evidence, primarily by corroborating events through photographs, documenting injuries and statements provided during the exam, and facilitating future victim participation with police through ensuring victim wellbeing and connection with a victim advocate (Campbell et al., 2015; Downing et al., 2020). The simple existence of forensic evidence, rather than what the forensic evidence may reveal, also may play a significant role in case outcomes: in one study, the existence of forensic evidence, not findings from the evidence testing, was associated with suspect identification. Written case narratives showed that the existence of forensic evidence contributed to police officer’s perception of victims’ positive credibility and the promise of what the evidence could reveal after testing (Tasca et al., 2013).
However, other studies have found that physical evidence, including biological evidence, plays a small role in investigations of sexual assaults. One study found that while forensic evidence was predictive of arrest and charging of sexual assault suspects, it was not predictive of conviction (Johnson et al., 2012). Others have found that forensic evidence was not significantly related to arrests of suspects (Schroeder & Elink-Schuurman-Laura, 2017; Tiry et al., 2020). This also can be seen through studies that document how police often make arrests before DNA evidence is submitted for examination or results are returned: in one study, less than half of DNA testing was complete before an arrest was made (Schroeder & Elink-Schuurman-Laura, 2017). Because one of the key benefits of forensic evidence is its ability to identify unknown suspects, this evidence may lose utility in the majority of sexual assault cases where the victim and suspect are known to reach other (Johnson et al., 2012). Also, long turnaround times for DNA testing and analysis may be a deterrent for testing sexual assault kits in all but “obviously necessary” cases where the suspect is unknown. One study found that of Los Angeles’s unsubmitted kits, 10% were unsubmitted due to “lengthy delays in analysis” (Johnson et al., 2012). Indeed, studies examining large numbers of unsubmitted SAKs in several jurisdictions show a primary reason was because investigators did not perceive SAKs to be particularly important for case processing (Campbell et al., 2009; Peterson et al., 2012; Wells et al., 2016).
Although many studies have examined the factors that lead to the arrest and prosecution of sexual assault cases, they do not fully illuminate SAMFEs’ importance to how investigators and prosecutors process sexual assault cases (Campbell et al., 2017). A few studies to date have gathered qualitative data on sexual assault case processing from criminal legal system actors. Interviews with investigators suggested that instead of considering the crime lab results of forensic evidence from a SAMFE, police officers “weighed whether the evidence was collected and thus potentially available, or if not, the victim’s willingness to have forensic evidence collected” (Tasca et al., 2013, p. 1170). Alderden and Ullman (2012b) found that arrests decreased when victims did not get a SAMFE, indicating that “detectives may also believe that only women who are real sexual assault victims would willingly submit to the rape kit examination that is both personal and invasive” (p. 17). While these findings provide initial insight, additional qualitative data from the perspective of stakeholders is critically needed to understand the role of SAMFE in their decision-making—and ultimately the role of SAMFEs in case processing outcomes.
To date, there are few published studies on how investigators and prosecutors directly perceive the utility of SAMFEs. The Houston Action-Research Project has published two such studies, one on investigators and one on prosecutors, both of which focused exclusively on perceptions from specialty sex crimes units. Findings from these studies reveal that investigators perceive SAMFE forensic evidence to often have limited use in sexual assault cases (Menaker et al., 2017) while prosecutors view the value of forensic evidence as moderating the effect of other extralegal factors (Henry & Jurek, 2020). And while other studies on investigator and prosecutor decision-making in sexual assault cases feature snippets of qualitative findings, the data was collected for the purposes of contextualizing quantitative findings within that same study instead of providing an in-depth examination of these processes (Beichner & Spohn, 2005; Campbell et al., 2009; Spohn et al., 2001, 2014; Tasca et al., 2013). Thus, though the present study included a mixed-methods approach, it is the first to qualitatively (1) explore the perceptions of investigators and prosecutors across multiple agencies, (2) describe how these stakeholders explain how the SAMFE can help or harm the investigation and prosecution of sexual assault cases, and (3) highlight the connection between the two important case processing decision-making factors: the SAMFE and its associated evidence, and victim credibility. In addition, we intentionally focused on learning about these issues from areas with smaller populations than what is typically found in past studies. Past studies have largely focused on large metropolitan areas, while this study focuses on small cities and rural areas. Specifically, this study fills gaps in the literature by answering the following research question: how do police officers and prosecutors perceive the relationship between the sexual assault medical forensic exam (including both the medical and forensic evidence components of the SAMFE) and perceptions of victim credibility in their case processing?
Methods
This study relies on data collected as part of a mixed-methods study of sexual assault case processing in police departments and prosecution agencies in two jurisdictions in one northeastern U.S. state. The study includes both quantitative data collection via reviews of case files from sexual assaults reported between 2015 and 2017 (n = 534) and qualitative data collection through focus groups with stakeholders in fall of 2016. 5
The first jurisdiction is a single county with two small cities and towns of varying sizes. The county has about 230,000 residents, with an approximate median income just below $50,000. According to the 2010 U.S. Census, about one in six residents live in poverty (U.S. Census Bureau, no date). The sampling frame for the analysis for this jurisdiction consists of nearly all police agencies that investigate sexual assaults in the county (of five agencies, only one agency did not participate) 6 and the county district attorney’s office. The second jurisdiction represents a mid-sized city of just over 200,000 residents. It has an approximate median income of just over $30,000 and about one-third of its residents living in poverty (U.S. Census Bureau, no date). The sampling frame for the analysis for this jurisdiction is sexual assault cases handled by the city’s primary police agency and its district attorney. 7 Neither study jurisdiction had a sexual assault kit backlog test mandate during the study period.
The emphasis of the current study is data from focus groups with the two jurisdictions’ combined seven police (n = 5) and two prosecution agencies (n = 2), with each police and prosecution agency participating in one focus group. Focus groups allowed participants to interact with each other and build upon each other’s’ responses with researcher facilitation. The dynamic, interactive group nature of the conversations produced a broad range of insights that may not have been heard from one-on-one interviews (Morgan, 1996). Groups ranged in size from 1 to 14 participants (three focus groups only had one participant; thus, the discussion was more like a semi-structured interview). Each agency participating in the overall study had one primary point of contact who recruited relevant stakeholders to participate in focus groups.
The police focus groups included 24 investigators/detectives from five agencies. Among participants, three were women and 21 were men. Only one investigator exclusively focused on sexual assault, with the other investigators having varied caseloads. Nineteen of the participants reported the length of time they have been investigating sexual assaults, which ranged from only six months to 23 years (with an average of 5 years).
We also spoke to three female prosecutors from two district attorney’s offices. The years of experience each of these women had with prosecuting sexual assault cases were 2 years, 8 years, and 28 years. While the number of prosecutor respondents appear small (three across two agencies), they reflect the entire unit of sexual assault prosecutors in one jurisdiction (solely focused on sexual assault prosecution) and a unit chief reflecting on her small unit’s case processing (including herself and two assistants focused on sexual assault, domestic violence, and physical assault). Because this study highlights findings from a small city and primarily rural area, the number of investigators and prosecutors would be naturally smaller than past studies that have generally focused on large metropolitan areas which may include larger numbers of investigators and prosecutors due to the size of the jurisdictions.
Conversations lasted about 60 to 90 minutes, were audio-recorded, and professionally transcribed. During each focus group with investigators and prosecutors, we discussed how respondents handle sexual assault cases within their respective offices and how cases move through the system in their local jurisdiction. Specific topics included: respondents’ professional backgrounds; avenues for victims to report to police; police decision-making during investigation and case referral to prosecution; and prosecutorial decision-making around charging and bringing cases to trial. Each focus group also discussed aspects of and details related to sexual assault medical forensic exams, including kit storage and chain-of-custody issues, kit submission to the lab, effects of the exam and kit evidence on investigations, differences in cases with and without an exam and kit, case challenges if victim did not get an exam, how exam and lab results affect case processing, how evidence is used to build a case, timing and utility of lab reports, the role of SANEs or other medical providers in the exams and throughout case processing, and respondents’ perceptions of value of the exam and its kit evidence to investigation and prosecution.
We used NVivo to code 32 primary and secondary themes for this qualitative analysis. Two team members independently coded transcripts for relevant themes related to SAMFE helpfulness, resulting in an 0.76 inter-coder reliability rate. The overarching codes included themes related to the SAMFE being helpful, harmful, or neutral to case processing. Sub-codes focused on the specific ways in which the exam and kit evidence was helpful in both extralegal and legal ways, including: identifying suspects, detecting drugs, strengthening perceptions of victim credibility, and support from examiners. Sub-codes for harming a case included: refuting expectations of victim’s behavior, inadequate medical providers, and harming victim and prosecution credibility. Codes of no effect on case processing included: when consent is in question, when evidence is not persuasive, when results are inconclusive, and when victims do not participate. The team members compared results after initial coding to discuss coding agreement and conflict, and ultimately came to consensus regarding coding meanings. A final round of coding resolved inter-coder differences.
Results
In their accounts of the role that the SAMFE plays in case processing, investigators and prosecutors described how the SAMFE can either strengthen or weaken a sexual assault case. Respondents made 18 general statements that affirmed the SAMFE’s helpfulness without specifying how the evidence strengthened cases or led to more investigative progress. Every respondent expressed that the SAMFE and its associated evidence is helpful to strengthening and furthering cases in a variety of ways, including identifying suspects (22 statements), detecting drugs (three statements), and providing documentation for physical injuries and force (nine statements). Despite identifying many contributions that the SAMFE makes toward case processing, investigators and prosecutors attributed all but one of these contributions as fundamentally supporting or harming perceptions of the credibility of the victim and their account of the assault. The lone contribution of the SAMFE that was not explicitly tied to victim credibility was the role of SAMFEs in identifying suspects, including unknown suspects (seven statements), corroborating the identity of a known suspect (four statements) and linking a single suspect to multiple cases (two statements). When it came to how the SAMFE can hurt the strength of a case, respondents identified several ways that all pointed to the SAMFE lessening perceptions of victim credibility. The findings below describe respondents’ views on how the SAMFE may help or harm perceptions of victim credibility.
How SAMFEs Strengthen Perceptions of Victims’ Credibility
There was an overall perception that the SAMFE and its associated evidence could corroborate the victim’s account of the assault, which also led respondents and their hypothetical jurors to view the victim’s credibility more favorably. The findings from the SAMFE can corroborate the victim’s statements regarding physical injuries or other events during the assault; consistency between the victim’s statements given to the examiner at the time of the SAMFE and the victim’s testimony also strengthens people’s perceptions of victims’ credibility. Ultimately, any evidence that can help build such perceptions is key, and a SAMFE can strengthen perceptions of credibility through components beyond DNA evidence, including victim statements, medical provider statements, photographs, toxicology evidence, and more. As one prosecutor explained, any corroboration from the SAMFE would be useful in assuaging negative perceptions of victim credibility held by jurors: I think jurors are immediately predisposed to not believe the victim. And so, they want other evidence that they can rest their hat on, to say this is why we believe the victim, and this is how we’re finding guilty. So any type of little corroboration [from the SAMFE] is what we wanna put together for that jury (Prosecutor B).
When respondents described the specific ways in which SAMFEs helped their case processing, they identified the following characteristics as bolstering perceptions of positive victim credibility beyond corroborating victim-identified suspects: victim actions around the SAMFE confirming expectations of credible victimhood, corroboration from forensic medical examiners, and detecting drugs to justify victims’ lack of memory.
Strengthening extralegal expectations of credibility
One way in which the SAFME helps investigations and prosecutions is its role in strengthening, from respondents’ perspectives (eight statements), the victim’s credibility as a believable, truthful witness. Respondents discussed victims’ actions around the exam as a factor that influenced their perception (or their perception of a jury’s view) of the victim’s credibility. Specifically, it was the victim’s decision to seek the exam that reinforced their credibility. Investigators explained how a victim’s decision to not receive the SAMFE can lead to doubts in their mind about the victim’s account of events and their truthfulness: Well, if there’s no exam, the person’s telling you they’ve been raped, and then they’re saying, “Well, I’m not getting the exam done,” it’s not gonna help your case. Obviously. Now you’re gonna start—not gonna believe them. I mean, why don’t you want to get one done? We need the evidence. So, I mean, for us, we express to them, “We need to get this kit done. We need it.” Basically we need it. If they’re saying no, then you gotta start questioning them, “Why not?” (Police A)
Investigators and prosecutors spoke to the victim’s decision to receive the SAMFE despite the invasive nature of the exam as further strengthening the victim’s credibility, as, in their view, someone making a false allegation of assault would not voluntarily go through such a difficult procedure. Respondents spoke about this from both their own perspective as well as the perspective of theoretical jurors: One of the big things that the defense always likes to argue is, “oh, the victim’s lying. She’s making it up.” And one of our counterarguments to that is, what’s her motive for doing that? And so, by going through this whole process, and it being as invasive as it is, one of the things that we argue is, why would you go through that whole process, unless you were sexually assaulted (Prosecutor B).
In one investigator’s perception, the invasive nature of the exam had even stopped people from going forward with false allegations. While this investigator did not mention whether their perception of the allegation being false was confirmed at any point through additional evidence or the victim’s recantation, the investigator stated: “when they find out that’s what it entails, they’ve actually said, ‘Well, I was lying about it,’ and come out that way” (Police B).
Successfully completing a SAMFE was also evidence that the someone’s victimization actually occurred and that their reports are credible. Another officer stated that submitting to and completing the SAMFE was a barrier for victims to cross: once a victim crossed that barrier, they were more likely to participate in an investigation. From this officer’s perspective, those who “report falsely” are less likely to receive the SAMFE once they realize it may lead to additional investigative steps: Sometimes, we find that [victims] report falsely, and when they realize it’s getting deeper and deeper into a full investigation, they step away from it. Or we as officers aren’t gonna hang around for the three hours it’s gonna take, and so we leave, and then once we’re gone, that’s when they walk away ‘cause they no longer feel bound to stay there, so they don’t go through with the full kit. But if they stick around and have that done, then they’re more likely to continue with the investigation, it seems like (Police E).
From the perspective of this officer, the SAMFE is essentially a “screener” that separates those who report falsely from those who do not and are therefore willing to go through an entire investigation. Regardless of the accuracy of this claim, this investigator believes it to be the case. In this particular scenario, the officer did not explain the process of determining whether a particular report was false. The investigator assumed that the absence of an officer during the exam process provided an opportunity for a “dishonest” victim to leave the facility, instead of understanding the officer’s absence as a potentially contributing factor to the victim’s decision to leave based on other potential reasons, such as perceived disinterest from police.
Corroborating victims’ accounts of legal factors
Outside of demonstrating victims’ actions and behaviors that conform to investigator and prosecutor expectations of credibility, the SAMFE also corroborates victims’ account of events prior to, during, and after the sexual assault via its collected evidence. Respondents provided ten statements supporting the value of the SAMFE evidence corroborating or “backing up” the events of the assault, without specifying which events or characteristics of the case. Overall, these respondents shared the sentiment that SAMFE evidence could be a tool in supporting or confirming the events of the assault, and that anything corroborating the victim’s recollection of the events is valuable.
Additionally, investigators and prosecutors explained that SAMFE evidence could corroborate victims’ two key legal factors in sexual assault cases: the existence of sexual contact (seven statements) and the lack of consent from the victim (three statements). For cases where an identified suspect denies having any sexual contact with the victim, SAMFE forensic evidence can prove this claim to be false and the victim’s account to be truthful: The kit came back with this guy’s—the suspect’s DNA—on the victim. We bring him in, interview him. He flat out says, “No, I had no contact with her whatsoever. Didn’t have any sort of sexual contact, any kind of physical contact,” he says. And then he gets confronted with the DNA evidence, and that’s when his story fell apart, and we actually made a charge on him. Those are our best cases, when you’re assigned a sexual assault, from an investigator’s standpoint. You want physical evidence, and you want your suspect to lie (Police C).
Other respondents echoed this sentiment, explaining that the SAMFE’s forensic evidence can prove sexual contact occurred between suspects and victims (particularly victims who are minors where consent is not legally possible) when the suspect denies the contact, or prove that sexual contact occurred even in cases where the victim does not recall the events (see subsequent section on how SAMFE-facilitated drug detection can support victims’ lack of recollection).
Non-DNA evidence collected during the SAMFE also can corroborate the lack of consent during sexual contact between the victim and suspect in assault cases, which is key to proving that the sexual contact meets a criminal level of sexual assault. As cases often involve suspects that are already known to the victim, showing that the sexual contact was nonconsensual is key in these cases. As one prosecutor explained: With most of our cases, consent is the main issue. And so juries are always looking to go, okay, we’ve got a defense over here saying she consented. We’ve got victim over here saying she didn’t consent. What extra evidence is there to make us believe one side versus the other? (Prosecutor B)
According to respondents (nine statements), the written and/or photographic documentation of injuries, such as bruising or bite marks, supports that the assault was violent and the victim struggled, and can corroborate the victim’s report of force. Another prosecutor described a case where the SAMFE found evidence of grass and debris which corroborated the victims’ reports that the assaults had taken place outside. From this prosecutor’s perspective, this was indicative of non-consent. In both scenarios, it was evidence collected during the SAMFE that was relevant to corroborating the victim’s claim of lack of consent.
Corroboration from medical examiners
The role of the medical provider who conducts the SAMFE, whether it be a doctor or sexual assault nurse examiner, as a witness, source of corroboration, and expert also plays a role in supporting perceptions of victim credibility. Prosecutors made eight statements detailing how the provider who conducts the SAMFE can be helpful to a case. One prosecutor explained that the examiner’s documentation of the SAMFE in paper form is helpful in jury trials: “The medical documentation is a physical piece of paper we get to hand to the jury. Juries love CSI. They watch the TV shows. They want something to be able to handle” (Prosecutor B).
Additionally, the provider’s account of the exam, including the victim’s statements and demeanor during the exam, can corroborate the victim’s account of the events immediately after the sexual assault. As prosecutors explained, the medical provider is one of the first people the victim sees after an assault and therefore plays an important role in the narrative of the crime. The medical examiner can help establish or strengthen perceptions of victim credibility by corroborating the consistency of the victim’s statements to investigators, examiners, prosecutors, and the jury. The provider’s notes, along with the SAMFE evidence, serves as another source of corroboration, therefore supporting not just the events of the assault but the victim’s credibility: The exam itself, the paperwork that they collect, the fact that it has to be within 96 hours, so that whether it’s reported immediately or a day after, that’s one of the first times that [the victim is] telling the facts to someone. So, that’s super helpful to us to put in front of a jury, to say, “look at, way back then [the victim] said A, B, and C, and now they’re saying A, B, and C.” (Prosecutor B)
The examiner can also testify to the victim’s immediate post-assault behavior in a way that corroborates how a jury may expect a victim to act and behave after experiencing a sexual assault—similar to how investigators reported expecting victims to act a particular way in order to be convincingly credible. Prosecutors mentioned instructing potential jurors on setting aside their expectations of how a victim should behave, because how victims actually behave during and after their victimization can be explained by a myriad of reasons. Because of this challenge, meeting juror expectations of victim behavior is helpful. One prosecutor provided an account where the examiner testified regarding the victim’s reaction to being placed in a physical position during the exam that recreated the position in which she was assaulted: When [the examiner] testified, [she] distinctly remembered that, when she put the victim back, the sexual assault had occurred in a car. . . like the chair was back. And when she put the victim for the examination, that’s how you naturally do the examination is laying back like that. And the victim got visibly upset because she was in that position again. . . but [the examiner] was able to explain that just doing that in her observations, which was huge for the jury to be able to hear that, I think (Prosecutor B).
This prosecutor believed the examiner’s testimony to be important in the eyes of the jury ultimately because it corroborated the victim’s account of the sexual assault and painted a picture of the victim’s discomfort that aligned with how a post-assault victim should seem, regardless of the accuracy of such jury members’ beliefs.
Detecting drugs
In cases where perceptions of victims’ credibility are weakened because of victims’ lack of memory or recall, the SAMFE can provide an explanation that prevents this potential harm. Both prosecutors and investigators identified the SAMFE’s ability to detect the presence of drugs and alcohol in the victim’s system as helpful in processing sexual assault cases (three statements). According to respondents, the detection of drugs and/or alcohol in the victim’s system, though not part of the standard evidence collection, can explain why a victim may not recall the events of the assault. When found, the presence of a date rape drug provides additional corroborating evidence that an assault occurred. One prosecutor explained using a hypothetical: However, if we did have a kit where somebody reported that they can’t remember anything, and they went right away, and we find that there’s certain drugs in their system, there’s certain physical injuries, and then there’s DNA presence, clearly that is much and is almost sole evidence that we’re working with because the person doesn’t remember something, versus what they’re all describing with somebody who’s come forward a couple days later (Police E).
According to this prosecutor, the SAMFE’s ability to detect drugs in the victim’s system after the assault could not only support the victim’s lack of memory of the assault, but when pieced together with other evidence, could help prove the occurrence of a sexual assault.
How SAMFEs can Weaken Perceptions of Victims’ Credibility
While the majority of statements provided by investigators and prosecutors support the notion that the SAMFE and its resulting evidence is helpful to sexual assault cases, respondents also specified a small number of ways in which the evidence may be harmful to their cases.
Refuting expectations of victim behavior
SAMFEs can help demonstrate expected victim behavior (as described previously), but also can show situations where victim behaviors or characteristics do not align with expectations of how a sexual assault victim should act, however inaccurate such expectations may be. For example, one officer respondent (one statement) described a case where the SAMFE’s DNA evidence revealed the existence of multiple donors, one being the victim’s boyfriend. Further investigation revealed that the victim and her boyfriend engaged in sexual intercourse after she experienced her reported sexual assault. The respondent perceived this scenario as not fitting for a “true” victim: “If you were truly raped, why were you having sex with your boyfriend the next morning?” (Police A). In this case, the SAMFE can reveal facts that do not meet some pre-conceived expectations of how a victim should behave after a sexual assault and could create doubt in those responsible for investigating these crimes who hold such expectations. Without additional explanations or training on victim behavior, such unexpected behaviors can lead to the erroneous perception that the person did not experience victimization that met the definition of rape.
Improperly trained or untrained medical providers
While technically trained sexual assault medical examiners can be helpful in investigating and prosecuting sexual assault cases, not all medical providers are proficient in conducting SAMFEs. One site did not have a Sexual Assault Nurse Examiner (SANE) program, which the prosecutor (one statement) thought contributed to poorly trained examiners that had the potential to hurt their cases: That’s another problem, I think, with not having a SANE program is I don’t think we have nurses that are necessarily trained in dealing with victims of sexual assault and reporting accurately what they are told by them. And sometime, those words come back to haunt us later on, especially when they express their opinion. Not their medical opinion, but their opinion about the victim’s credibility. (Prosecutor A)
In this example, the prosecutor perceived that the lack of a specially trained provider meant they inappropriately refuted the victim’s credibility, thereby harming the case.
Contradicting victims’ accounts of legal factors
Findings from the SAMFE also can contradict or refute the victim’s statements, harming perceptions of the victim’s credibility if there is not further, contextualized understandings of why victim statements may not always be consistent. For example, one police officer (one statement) spoke of cases where the victim states they are not sexually active, but the SAMFE evidence testing reveals the presence of DNA from a consensual encounter. The officer explained that this “can hurt our case, cause’ then you’re talking about hurting the credibility of the victim” (Police B). In this example, the officer did not explain or seem to consider the reasons why a victim may not disclose their sexual activity status, such as discomfort disclosing to police due to their age or embarrassment.
SAMFE evidence that is meant to demonstrate the violent nature of a sexual assault may not always be captured through the exam, which also can harm the credibility of the prosecution. One prosecutor explained that because bruises do not always show up immediately, bringing them up to a jury, without having the photographic evidence to back it up can harm a case: The defense attorney’s going to look at what you did, but they’re also going to look at what you didn’t do. So [the examiner says] there’s a bruise, but I don’t have a picture of a bruise. I think one other thing though is a lot of times, the bruises, things like that, they don’t show up. So that can cut against us sometimes. (Prosecutor A)
Discussion
The goal of the present study was to qualitatively explore the perceptions of both police investigators and prosecutors across multiple agencies and understand how they perceive the utility of the sexual assault medical forensic exam in their case processing. Through respondents’ narratives about the role of the SAMFE in investigations and prosecutions, all but one identified role was about the SAMFE’s support for perceived victim credibility. The findings show that the value of the SAMFE does not solely depend on the results of forensic laboratory processing because it is inextricably related to how investigators and prosecutors perceive victims and suspects in cases. Unlike past work, this study demonstrates that the same components of the SAMFE, such as medical examiner statements, could both strengthen or weaken a case depending on the quality of the SAMFE delivery, the context of the case, and the experiences, training, and motivations that contribute to the perceptions of relevant investigators and/or prosecutors. Additionally, the ability of the SAMFE to affect both legal and extralegal factors related to case processing supports the conclusion that the investigative value of the SAMFE begins prior to forensic evidence processing and in anticipation of a possible jury trial, even though only 2.8% (n = 14) of cases went to jury trial in the two jurisdictions during the study period. Respondents’ “downstream orientation” (Kerstetter, 1990) to a hypothetical jury was prominent in their understanding of how SAMFEs could influence victim credibility and influenced their early case processing decisions.
As previous research has shown, the SAMFE aids case processing in multiple ways. Prior research has focused primarily on the utility of analyzed forensic evidence that produces foreign DNA profiles in identifying or confirming suspects, corroborating sexual contact, and enhancing perceptions of victim credibility if findings align with victim accounts (Campbell et al., 2009; Henry & Jurek, 2020; Johnson et al., 2012; McGregor et al., 2002). Due to the amount of time necessary to process evidence and draft final reports, DNA evidence is not usually available to inform the earliest days of an investigations (Peterson et al., 2012). Despite this, other researchers have found positive correlations between the existence of forensic evidence and early sexual assault case outcomes like arrest (Peterson et al., 2010). Our study contributes to the call for research that illustrates the how and why SAMFE and the evidence it collects affects case processing, especially early in an investigation before laboratory testing is completed (Campbell et al., 2009, 2015). Investigators and prosecutors identified several ways that the SAMFE helps case processing before the forensic results: strengthening extralegal expectations of a credible victim, corroborating victims’ accounts of legal case factors, corroborating both legal and extralegal case characteristics through medical provider accounts, and detecting drugs in instances when victims’ lack perceived reliable recollection and memory of events. Notably, the ways investigators and prosecutors discuss the utility of the SAMFE in early case processing steps are inextricably linked to how they perceive the credibility of the victim. Respondents provided several statements supporting the idea that a victim’s decision to undergo a SAMFE strengthens perceptions of a victim’s credibility through every step of the case: in the eyes of the investigator, prosecutor, and trier of fact. The victim’s decision, as well as their actions and behaviors during the medical exam itself, aligns with expected post-assault victim behavior as motivation to assist in the investigation. While prior research has well established that meeting expectations of victim post-assault behavior establishes credibility and affects case progression (Campbell et al., 2015; Campbell & Fehler-Cabral, 2018, 2020; Kaiser et al., 2017; Spohn et al., 2001; Tasca et al., 2013), our finding elaborates the specific link between victims’ credibility and their decision to undergo a SAMFE that has been suggested by previous research (Corrigan, 2013; Quinlan, 2016).
This explains how the SAMFE, through its impact on perceptions of victim credibility, can aid case progression even before laboratory analysis results exist. When paired with prior findings of Menaker et al. (2017), it supports a two-stage dependent relationship between the SAMFE and perceptions of victim credibility, and ultimately the ability of forensic evidence to affect case outcomes. First, the victim’s decision to undergo the SAMFE positively impacts the investigators’ perception of victim credibility. Second, Menaker et al. (2017) found that an investigator’s perception of forensic evidences’ utility was partially dependent on their positive perception of victim credibility. Consenting to a SAMFE improves perceived credibility early in case processing, and that credibility improves the usefulness of the laboratory findings, especially if they corroborate the victim’s account. The ability of the SAMFE to affect both legal and extralegal case factors supports the conclusion that the investigative value of the SAMFE begins prior to forensic evidence processing. In further support of this idea, of the 170 cases that had SAMFE evidence collection during a three-year period in these two sites, only 116 resulted in lab reports, of which, only 8 had lab results come back before an arrest was made in the case (Walsh et al., in preparation).
Beyond the effect on perceptions of credibility early in case processing, respondents identify two other ways the SAMFE aids perceptions of victim credibility: detecting drugs and providing corroboration through expert support to the case from the medical provider. SAMFE toxicology evidence—when collected—may establish the presence of drugs or alcohol in a victim’s system. Respondent statements, particularly prosecutors’, revealed this was helpful, especially because it could explain gaps in the victim’s recollection of the offense. This contrasts with other studies where evidence of voluntary alcohol intoxication negatively affected perceptions of victim’s credibility (Beichner & Spohn, 2012; Schuller & Stewart, 2000). Respondents in our study did not indicate that evidence of willing intoxication harmed progression, although they were not explicitly asked about this as part of our discussion protocol.
Prosecutors identified the involvement of sexual assault nurse examiners and/or other medical providers as a helpful component of the SAMFE. Our study finds that providers aid case processing primarily as expert witnesses. As witnesses, they can explain the exam process, significance of any associated findings, and describe a victim’s demeanor and actions during the exam. In particular, they can explain how victims’ post-assault exam behavior conforms to jury expectations of how a credible victim will behave. These findings are aligned with research on prosecutor’s perspectives on SANEs and the value they bring to prosecutions, as well as studies that examine the impact of SANE programs on prosecutions of sexual assault cases (Campbell et al., 2009; Schmitt et al., 2017).
This study also explores ways in which the exam could have a harmful effect on perceptions of victim credibility. While the majority of respondents’ statements about SAMFE effect on case processing were positive, three scenarios represent ways SAMFE outputs can harm investigations and prosecutions: refuting expectations of victim post-assault behavior (e.g., evidence that runs counter to an investigator’s expectation of sexual assault victim behavior such as DNA indicating recent consensual sexual activity around the time the offense took place); involving an incompetent medical provider (e.g., providers that lack training in SAMFE protocols and victim-centered care who may draft unhelpful or contradictory statements about victim credibility); and finding information that contradicts victim-narrated legal factors (e.g., results of SAMFE evidence testing may run counter to a victim’s account of what happened). These findings tie together existing research that shows how the SAMFE can lead to investigators’ scrutiny of legally irrelevant behaviors (Corrigan, 2013) and medical examiners to harm victims’ credibility via the promulgation of rape myths due to a lack of specialized training (Du Mont & Parnis, 2003; McMillan & White, 2015), both of which are SAMFE components that are unrelated to forensic testing yet play a key role in establishing victim credibility. All three of these situations involve some output of the SAMFE process that could damage victim credibility if not handled appropriately by investigators and prosecutors and therefore puts case progression at risk.
Limitations
This study is subject to some limitations. First, we cannot establish the generalizability of the current findings since this study narrowly focused on qualitative findings from two jurisdictions in a single state. As jurisdiction-wide policies have significant impacts on how SAMFEs are used, a study of two jurisdictions in one state cannot illuminate all mechanisms associated with SAMFEs and case processing. The experiences, knowledge, and skills of these investigators and prosecutors may differ from those in other jurisdictions with different SAMFE practices policies. For instance, investigators and prosecutors in places with faster laboratory turnaround times or different kit testing policies may have different perspectives on how SAMFEs help or harm case processing. These data were collected in two jurisdictions that did not have test-all-kits policies at the time of our interviews. Test-all-kits policies may lessen the impact of subjective investigator decision-making by mandating that everything collected from SAMFEs be submitted for testing. Future research could replicate this study in jurisdictions with test-all kits policies to examine how investigator and prosecutor perceptions of SAMFE usefulness compare to our findings. Additionally, these two jurisdictions each only had one prosecuting agency, rendering our sample of prosecutors to only two focus groups. The researchers also did not explicitly inquire about and respondents did not bring up the saliency of victims’ and suspects’ demographic backgrounds, including racial and ethnic background, gender identity, and socioeconomic status, to their perception of victim credibility as it relates to the SAMFE. 8 Future research may intentionally explore the extent to which the SAMFE can strengthen or weaken the perceived credibility of a diverse group of sexual assault victims.
Implications for Policy, Practice, and Future Research
This study establishes new ways that the SAMFE and the evidence it produces can strengthen or weaken the strength of sexual assault cases and decision-making in case processing. Investigators’ and prosecutors’ perspectives help explain how and why a victim’s decision to submit to a SAMFE can impact case processing even at the early stages of an investigation before forensic evidence is processed. Their statements support the finding that the primary way the SAMFE supports case progress early in the investigation—before laboratory results are available—is by increasing perceptions of victim credibility. Since refusing to get an exam is not proof a crime did not occur, this finding may have implications for how investigators and prosecutors should be trained to understand the full spectrum of reasons why someone might refuse a SAMFE. Further, given the perceptions that SAMFEs can sometimes weaken a case, broader training around investigation and prosecution might benefit case processing by providing ways around these harms (see, e.g., AEquitas, Justice Management Institute, & Urban Institute, 2017).
This article points to several pathways for future research, including further qualitative and quantitative explorations of how SAMFEs contribute to additional extralegal case characteristics, the potential for SAMFEs to harm or have no impact on case processing, and the mechanisms behind how SAMFEs play these roles in cases. Future research should investigate if and how victim willingness to overcome other hurdles (e.g., spending time providing statements) affect investigator perceptions of victim credibility and possibly case processing.
Taking a holistic approach to the SAMFE in the interview protocols created room for the respondents to discuss the impact of multiple SAMFE outputs, not just presence or absence of DNA. The exam itself collects multiple types of biological, non-biological, and informational evidence each with the potential to add value to an investigation. Future research should be careful not to distill the evidentiary value of the SAMFE down to the outputs of forensic testing alone, particularly the presence or absence of foreign DNA profiles. Each output of the overall SAMFE process, (e.g., victim consent to the exam, analyzed forensic evidence, statements to and from medical examiners, evidence of injury) has the ability to affect case processing.
Footnotes
Acknowledgements
The authors would like to thank Kim Oppelt, Jennifer Long of AEquitas, and Jeanette Hussemann of NORC for reviewing and providing feedback on this research, and Emily Tiry, Lauren Farrell, and Lindsey Cramer of the Urban Institute for their contributions to this project. The authors would also like to thank the jurisdictions participating in this study.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Support for this research came from the Department of Justice, National Institute of Justice Award Number 2013-NE-BX-0007. The opinions, findings, conclusions, and recommendations expressed in this document are those of the authors and do not necessarily reflect those of the Department of Justice, or the Urban Institute, its trustees, or its funders.
