Forensic science is best known for solving murders, but forensics can also be used during a rape examination to collect proof that a sexual assault occurred. These examinations reveal evidence, including DNA samples, fiber fragments, fingerprints, and more.
But just because the rape kit indicates that sexual intercourse occurred between two people doesn’t always mean it’s sufficient to prove the encounter was non-consensual. The police, however, can often convince people to confess because the officers claim there is substantial physical evidence against them. If you have been accused of sexual assault, always contact a criminal defense lawyer as soon as possible to protect your rights and keep you from saying something that can later be used against you.
What Kind of Evidence Can be Used in Rape Cases?
The easiest to prove sexual assault cases are those with multiple types of non-circumstantial evidence, including eyewitnesses, video footage of the assault, DNA, and a confession by the defendant. Unfortunately, few cases are this cut and dry, and many rely purely on circumstantial evidence, such as witness statements that the two parties were seen together and the conflicting stories of the alleged victim and the defendant. Most cases are somewhere in between, providing sufficient evidence that the couple was together and that the victim did have sex without offering conclusive proof that the defendant had nonconsensual sexual intercourse with the victim.
Examples of evidence that can be used to substantiate whether a rape has occurred include:
- DNA
- Fingerprints
- Photos
- Videos
- Cellphone records
- The victim’s statement
- The accused’s statement
- Eyewitnesses
- Victim injuries
- The victim and defendant’s legal histories, when applicable (these are frequently inadmissible)
- Journal entries by the victim or defendant
- Toxicology reports
- Clothing fibers
On their own, few types of evidence will prove that a sexual assault occurred. However, when taken together, they may be sufficient to support the prosecution’s case. When someone claims they were raped, the police may collect evidence at the crime scene, such as footprints, cigarette butts, clothing fibers, or fingerprints. They will typically also urge the victim to visit a hospital and get a rape kit, also called a sexual assault forensic exam, however, these are voluntary, and the decision is ultimately up to the victim.
What Does a Rape Kit Consist of?
A rape kit contains bags and envelopes of samples collected directly from the victim’s clothes and body after a sexual assault. These intense exams are highly invasive and often traumatic, so many victims choose not to go to the hospital after a rape or wait until days after the assault to get tested.
Before any physical samples are collected, the rape exam begins with the victim answering questions about what happened. The questions could include details about the specific time and place of the alleged assault but also go beyond this information and discuss the victim and alleged assailant’s previous relationship and the victim’s sexual history. Sometimes this process takes hours. After the interview, the victim will usually be asked to undress over a drop cloth so anything that falls off their body (such as hair from the suspect) can be collected. The victim’s clothes are also often collected.
The person performing the exam may go over the victim’s skin with a UV lamp to look for bodily fluids and with a comb on any hair-covered areas to collect hair, fiber, or other samples from the suspect. They will then take photographs, focusing on any injuries, before conducting a full internal and external exam to document any injuries. After the injuries are recorded, they will be treated as necessary.
The area under the nails will be scrapped, and anything that comes loose will be kept. The victim will also be asked to submit blood and urine samples, which could be used for a toxicology screening and STD and pregnancy tests.
Many rape kits are not completed fully because the victim can refuse to undergo any procedures they may find upsetting, which frequently happens.
Who Collects Evidence from a Rape Victim’s Body?
Ideally, the sexual assault forensic exam will be performed by someone specially trained to do so. Unfortunately, not all hospitals have a sexual assault nurse examiner (SANE), sexual assault forensic examiner (SAFE), or sexual assault examiner (SAE) on staff. In these cases, the exam will typically be performed by a nurse of the same gender.
What Happens to a Rape Kit When the Victim Doesn’t Go to the Police?
Because going to the police is so difficult for victims, many people who go through this process choose not to file a police report. When the victim does not file a police report, the rape kit is not tested but held until the victim decides to do so. Because there is no statute of limitations on rape in California, a victim could wait 20 years or longer before deciding to press charges against someone if they choose to.
What Happens to the Rape Kit if the Victim Files Charges?
When the victim files charges, the rape kit is sent to be processed for DNA testing in a crime lab. The samples must go through a specific legal chain of command throughout this process to ensure they are not tampered with. When this chain of custody is broken, the law allows for the evidence to be challenged and often excluded in trials, even in sexual assault cases that rely solely on this evidence.
Forensic Evidence Alone Doesn’t Prove Someone is Guilty
Even if DNA evidence proves someone had sexual intercourse, it doesn’t prove a rape occurred. In many cases, especially cases involving drugs or alcohol, the two parties may agree that they had sex but disagree about whether it was consensual. Even if there is evidence that violence occurred, if the two parties enjoy rough sexual activities, this could be a defense, particularly since there is no law against consensual violent sex.
To further complicate matters, many victims of sexual assaults don’t get rape kits until days or weeks after the alleged rape occurred. Unfortunately, every time someone eats, drinks, showers, changes clothes, or lays in a bed, physical evidence is lost, and it is sometimes even replaced with DNA samples from others, such as roommates, family members, friends, or romantic partners. If the victim was drugged, blindfolded, or otherwise unable to identify their rapist, this could result in an innocent person facing rape charges simply because their DNA was uncovered in the rape kit. Charges based solely on a single DNA sample can sometimes result in wrongful convictions, as DNA transference can result in sperm on a man’s sheets or underwear ending up on the underwear of others who wash their clothing together.
Additionally, sometimes victims of sexual violence have voluntary intercourse with someone before or after they were raped. If the victim did not see the perpetrator and the only forensic evidence indicates the person they consensually had intercourse with, that person may wrongly face sexual assault charges. This scenario can be particularly problematic in cases where the victim was killed or too mentally or physically injured to speak with police after they were raped.
If you had consensual sexual relations with someone shortly before or after they were raped, you might want to contact a rape defense attorney before investigators talk to you to help protect your rights.
Call a Lawyer Immediately
If you are facing rape charges or believe you may be accused of the crime, hire an attorney as soon as possible. Police have a lot of techniques they use to get suspects to confess or to say something that can be proven to be untrue —often falsely. Because rape cases often come down to he said/she said arguments, avoid speaking to the police or your accuser to avoid saying something that may hurt your defense later.
For example, if you had consensual sex with someone who claims they were raped, your first instinct might be to deny having sex with them at all. Unfortunately, doing this can make you appear a liar if DNA evidence or witness testimony proves you did have intercourse. When this happens, anything you say afterward may be considered dishonest in the mind of investigators.
Always work with a criminal attorney who can help protect your rights and reputation under the criminal justice system. If you are facing rape charges or believe you might be accused of any sexual assault crime, please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss.