Overarching Issues

  1. Coordinated approach
  2. Victim-centered care
  3. Informed consent
  4. Confidentiality
  5. Reporting to law enforcement
  6. Payment for the examination under VAWA

1. Coordinated approach

A coordinated, multidisciplinary approach to conducting the exam provides victims[1] with access to comprehensive immediate care, helps minimize trauma they may experience, and encourages their use of community resources. Such a response can also enhance public safety by facilitating investigation and prosecution, which increases the likelihood that offenders will be held accountable for their actions. Raising public awareness about the existence and benefits of a coordinated response to sexual assault may lead more victims to disclose the assault and seek help. 
 
Recommendations for jurisdictions to facilitate a coordinated approach to the exam process: 
  • Understand the dual purposes of the exam process to address patients’ needs and justice system needs. Addressing patients’ needs may include evaluating and treating injuries; conducting prompt exams; providing support, crisis intervention, and advocacy; providing prophylaxis against sexually transmitted infections (STIs) and referrals; assessing reproductive health issues; and providing followup contact/care. Addressing justice system needs may include obtaining a history of the assault; documenting exam findings; properly collecting, handling, and preserving evidence; and (postexam) interpreting/analyzing findings, presenting findings, and providing factual and expert opinions. 
  • Identify key responders and their roles. 
  • Develop quality assurance measures to ensure effective immediate response. 

2. Victim-centered care

Victim-centered care is paramount to the success of the exam process.  Response to victims should be timely, appropriate, sensitive, and respectful.   
 
Recommendations for health care providers and other responders to facilitate victim-centered care: 
  • Give sexual assault patients priority as emergency cases and respond in a timely manner. Provide them with as much privacy as possible, while ensuring that they are supported. 
  • Recognize that the medical forensic exam is an interactive process that must be adapted to the needs and circumstances of each patient.
  • Be aware of issues commonly faced by victims from specific populations. For example, certain characteristics (e.g., culture, religion, language skills/mode of communication, disabilities, gender, and age) may influence a victim’s behavior in the aftermath of an assault, including the exam process.
  • Understand the importance of victim services within the exam process. Victim service providers/advocates typically offer victims support, crisis intervention, information and referrals, and advocacy to ensure that victims’ interests are represented, their wishes respected, and their rights upheld. Providers/advocates also may offer support for family members and friends who are present. In addition, they can promote sensitive, appropriate, and coordinated interventions. 
  • Involve victim service providers/advocates in the exam process as soon after a victim discloses an assault as possible. Victims have the right to accept or decline victim services.  
  • Accommodate patients’ requests to have relatives, friends, or other support persons (e.g., a religious/spiritual counselor) present during the exam, unless the presence of that person could be considered harmful. (See C.4. The Medical Forensic History for confidentiality considerations regarding the presence of these individuals during history taking.) 
  • Accommodate victims’ request for responders of a specific gender as much as possible. 
  • Prior to starting the exam and before each procedure, describe what is entailed and its purpose to patients. Be sure that communication/language needs are met and information is conveyed in a manner that patients will understand. After providing this information, seek patients’ permission to proceed and respect their right to decline any part of the exam. However, follow exam facility and jurisdictional policy regarding minors and adults who are incompetent to give consent. (For a more detailed discussion on seeking informed consent of patients, including consent by victims from specific populations, see A.3. Informed Consent.) 
  • Assess and respect patients’ priorities.  
  • Integrate exam procedures where possible (e.g., blood samples needed for medical and evidentiary purposes should be drawn at the same time). 
  • Address patients’ safety concerns during the exam. Sexual assault patients have legitimate reasons to fear further assaults from their attackers. Local law enforcement may be able to assist facilities in addressing patients’ safety needs. 
  • Provide information that is easy for patients to understand and that can be reviewed at their convenience. (Also see C.10. Discharge and Followup.) 
  • After the exam is finished, provide patients with the opportunity to wash, change clothes (providing clean replacement clothing if necessary), get food or drinks, and make needed phone calls. 

3. Informed consent

Patients should understand the full nature of their consent to each exam procedure. By presenting them with relevant information, they are in a position to make an informed decision about whether to accept or decline a procedure. However, they should be aware of the impact of declining a particular procedure, as it may negatively affect the quality of care, the usefulness of evidence collection, and, ultimately, any criminal investigation and/or prosecution. They should understand that declining a particular procedure might also be used to discredit them in court. If a procedure is declined, reasons why should be documented if the patient provides such information. 
 
Recommendations for health care providers and other responders to request patients’ consent during the exam process: 
  • Seek informed consent as appropriate throughout the exam process for medical evaluation and treatment and the forensic exam and evidence collection. Coordinate efforts to obtain consent among responders.
  • Be aware of statutes and policies governing consent in cases of minor patients, vulnerable adult patients, and patients who are unconscious, intoxicated, or under the influence of drugs. In all cases, however, the exam should never be done against the will of the patient.

4. Confidentiality

Involved responders must be aware of the scope and limitations of confidentiality related to information gathered during the exam process. Confidentiality is intricately linked to the scope of patients’ consent. Members of a Sexual Assault Response Team (SART) or other collaborating responders should inform victims of the scope of confidentiality with each responder and be cautious not to exceed the limits of victim consent to share information in each case. 
 
Recommendations that jurisdictions may take to maintain confidentiality of patients: 
  • Make sure that jurisdictional policies address confidentiality related to the medical forensic exam (e.g., of forensic documentation, photographs, and colposcopic video images). 
  • Increase responders’ and patients’ understanding of confidentiality issues (e.g., scope of confidentiality advocates can provide; scope of confidentiality of information shared with examiners, law enforcement, prosecutors, and other responders with whom patient has contact; and what happens to information once it enters the criminal justice system). 
  • Consider the impact of Federal privacy laws regarding health information on victims of sexual assault. 
  • Strive to resolve intrajurisdictional conflicts. 

5. Reporting to law enforcement

Reporting provides the criminal justice system with the opportunity to offer immediate protection to victims, collect evidence from all crime scenes, investigate cases, prosecute if there is sufficient evidence, and hold offenders accountable for crimes committed. Given the danger that sex offenders pose to the community, reporting can serve as a first step in efforts to stop them from reoffending. Equally important, reporting gives the justice system the chance to help victims address their needs, identify patterns of sexual violence in the jurisdiction, and educate the public about such patterns. It is recommended that service providers encourage victims to report due in part to the recognition that delayed reporting is detrimental to the prosecution and to holding offenders accountable. Victims need to know that even if they are not ready to report at the time of the exam, the best way to preserve their option to report later is to have the exam performed. 
 
Reporting requirements in sexual assault cases vary from one jurisdiction to another. Every effort should be made to facilitate treatment and evidence collection (if the patient agrees), regardless of whether the decision to report has been made at the time of the exam. Victims who are undecided about reporting who receive respectful and appropriate care and advocacy at the time of their exam are more likely to assist law enforcement and prosecution.
 
Recommendations for jurisdictions and responders to facilitate victim-centered reporting practices: 
  • Where permitted by law, patients, not health care workers, should make the decision to report a sexual assault to law enforcement. Patients should be provided with information about possible benefits and consequences of reporting so that they can make an informed decision. 
  • It is not recommended to require reporting as a condition of performing or paying for the exam. Even if patients are undecided about reporting, they should be encouraged to provide a medical forensic history, undergo the forensic exam, and have evidence collected and stored.
  • Jurisdictions may want to consider alternatives to standard reporting procedures. For example, an anonymous or blind reporting system may be useful in cases in which victims do not want to report immediately or are undecided about reporting.
  • Jurisdictions should consider a variety of approaches that promote a victim-centered reporting process. 

6. Payment for the examination under VAWA

Under the Violence Against Women Act (VAWA),[2] a State, Territory, or the District of Columbia is entitled to funds under the STOP Violence Against Women Formula Grant Program only if it, or another governmental entity, incurs the full out-of-pocket cost of medical forensic exams for victims of sexual assault. The VAWA provisions indicate the exam should minimally include “an examination of physical trauma; determination of penetration/force; a victim interview; and collection and evaluation of evidence.” [3] “Full out-of-pocket costs” means any expense that may be charged to a victim in connection with the exam for the purpose of gathering evidence of a sexual assault.[4]
Recommendations for jurisdictions to facilitate payment for the sexual assault medical forensic exam: 
  • Understand the scope of the VAWA provisions related to exam payment. 
  • Ensure that victims are notified of exam facility and jurisdictional policies regarding payment for medical care and the medical forensic exam, as well as if and how reporting decisions will impact payment. Relevant government entities are strongly encouraged to pay for medical forensic exams regardless of whether victims pursue prosecution. 
[1] The term “victim” is not used in a strictly criminal justice context. The use of “victim” simply acknowledges that persons who disclose that they have been sexually assaulted should have access to certain services.
[2] 42 U.S.C. § 3796gg-4.
[3] 28 C.F.R. § 90.2(b) (1). The analysis of evidence gathered during the examination, along with examiner documentation of findings, may help in determining whether penetration occurred or force was used. However, examiners are not responsible for drawing conclusions about how injuries were caused or whether the assault occurred or not (although they can note consistency between patients’ statements and injuries they identify).
[4] 28 C.F.R. § 90.14(a). 


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