Physical Examination : Evidence Collection
The New York State Department of Health and the American Academy of Pediatrics recommend the collection of forensic evidence when there is suspicion of a sexual abuse incident within 96 hours of the examination. For children, most forensic evidence has been found on linens or clothing within 24 hours. In all cases, weigh the benefit of collecting specimens based on the likelihood of a positive finding against the possible discomfort of the child/adolescent. Factors affecting the likelihood of identifying forensic evidence include time since the incident, bathing, age of the child, and type of contact. In some cases, it may be appropriate to collect only parts of the kit. If a part of the kit is not utilized, its omission must be explained, such as "prepubertal, no pubic hair" or "patient refused."
Preparation
Most hospital emergency departments stock the evidence collection kits. The New York State Division of Criminal Justice Services (DCJS) provides hospitals and other health care providers with sexual offense evidence collection kits and drug facilitated sexual assault evidence collection kits. For information on obtaining the kits, forms or training, contact the Division of Criminal Justice: https://www.criminaljustice.ny.gov/evidencekit.htm.
The training can be found here: https://www.criminaljustice.ny.gov/ofpa/pdfdocs/Sexual%20Offense%20Evidence%20Collection%20Kit%20Training%201-2023.pdf.
If the examination for suspected sexual assault is less than 96 hours post-incident, assemble the materials required for evidence collection prior to beginning the physical examination.
Consent
As a general principle, collection of sexual offense evidence should not and cannot be undertaken in the absence of parental consent or the voluntary and knowing consent of an older minor unless a court order is obtained by the appropriate authorities. Consent to medical treatment by a minor does not constitute consent to the collection of sexual offense evidence when the collection of such evidence involves procedures other than those performed solely for medical reasons. See Division of Criminal Justice Services, NYS: https://www.criminaljustice.ny.gov/evidencekit.htm. In no case should a child/adolescent be forced to have forensic evidence collected.
Preserving the Integrity of Evidence
It is important to follow the directions on the forensic evidence kits. Labeling the sources of the specimens obtained is a critical component of the collection. Each item of evidence must be labeled with the date, a description and source of the specimen, the name of the medical provider, the name of the patient, and the initials of everyone who handles it.
In order to maintain the chain of custody, an evidence collection kit and the specimens it contains must be accounted for from the moment of collection until the moment it is introduced into court as evidence. Under no circumstances should a victim, parent, guardian, support person, or CPS caseworker be allowed to handle or transport evidence after it has been collected. Each healthcare facility must have a procedure for protecting the chain of custody of evidence. A law enforcement official should transfer physical evidence from the healthcare facility to crime laboratory for analysis. Document the transfer of this physical evidence in the medical record.
Swabs
Depending upon the type of sexual offense, semen may be detected in the mouth, vagina, or rectum. However, embarrassment, fear, trauma, or lack of understanding of the nature of the offense may cause a victim to be vague or mistaken about the type of sexual contact. For these reasons, and because there can be leakage of semen from the vagina or penis onto the anus, encourage the child/adolescent to allow examination of all three orifices and have specimens collected from them.
If the child/adolescent must use the bathroom prior to the collection of the specimens, caution him/her that semen or other evidence may be present in the pubic, genital, and rectal areas and to take special care not to wash or wipe away that evidence. Likewise, discourage him/her from rinsing the mouth or drinking until after the oral swabs have been obtained.
Bite Mark Evidence Collection
Photograph bite marks using the photography techniques suggested in DOCUMENTATION: Taking Good Photographs. Note whether the bite mark has been affected by washing, contamination, or change of position.
Whenever possible, collect salivary trace evidence as guided by the patient history. This includes areas that the perpetrator may have had oral contact or other areas of dried secretions. If an alternative light source, such as blue light or ultraviolet light is used, all areas of fluorescence must be documented and swabbed. Note that the use of blue light is highly sensitive but not specific with regard to body fluids. (Mackenzie & Jenny 2014) Do not contaminate the sample by licking the evidence envelope.
Evaluating for Drug Facilitated Sexual Assault
If the victim's history or symptoms indicate the possibility that drugs were used to facilitate the assault, and it is within 96 hours of the possible ingestion, collect evidence for the NYS Drug Facilitated Sexual Assault Kit. History or symptoms may include memory loss or lapse, disheveled or missing clothing, dizziness, or intoxication that is disproportionate to the amount of alcohol reportedly ingested. A separate consent form (separate from that required for a Forensic Evidence Kit) should be completed. For further information see: https://www.criminaljustice.ny.gov/evidencekit.htm.
Release of Evidence
New York Public Health Law § 2805-i. Treatment of sexual offense victims and maintenance of evidence in a sexual offense describes the hospital requirements for evidence collection: https://www.health.ny.gov/professionals/safe/docs/public_health_law_2805-i.pdf.
