DOJ Revamps Sexual Assault Response Guidelines

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Posted on Apr 25, 2013 3:35pm PDT

Our Birmingham sex crimes defense attorneys know that this particular area of law has undergone a dramatic evolution in recent years, propelled by advances in DNA technology and other forensic and biological sciences.

Still, the way that law enforcement officers and prosecutors handle rape cases throughout the country varies a great deal.

In hoping to create a more streamlined approach, the U.S. Department of Justice has issued a new set of national guidelines for the forensic medical examinations that are conducted in the wake of a reported sexual assault. These are revised from the 2004 standards, and will be mandatory for military members and those employed in federal prisons.

The 145-page policy holds that a victim's emotional and physical needs must take priority over the considerations of the criminal justice system.

The guidelines as laid forth in the previous standards had more of a "prosecutorial tone," according to the acting director of the DOJ's Violence Against Women office. In the previous set of guidelines, there was a great degree of emphasis on pressuring the victim to cooperate with authorities in the criminal justice sector by making a report right away.

However, officials said that has seemingly backfired, with alleged victims reluctant to cooperate in the future if they are pressured into reporting early on.

Still, authorities know that if they are to be at all effective anymore in these cases, they almost have to have forensic evidence. So the new guidelines still indicate that authorities should urge a forensic exam, even if the alleged victim doesn't want to immediately make a report.

There is also detailed information on how certain types of evidence should be collected in sexual assault cases. This includes instructions for sealing, labeling and packaging certain types of evidence, as well as storage guidelines and information on how certain types of documentation should be kept and transferred.

Defense lawyer are undoubtedly combing this information as well because if a health care facility, police agency or prosecutor sidesteps any of these processes, it may be an opportunity to challenge the integrity of certain pieces of evidence.

Under exam and evidence collection procedures, for example, the DOJ recommends that the examiner strive to collect as much evidence form the patient as possible. That means if any elements are overlooked, a defense lawyer may be able to challenge whether that lapse might have revealed information that could have potentially ruled out our client or led to an indication of another suspect.

Another example would be the prevention of exposure to contaminations and ensure that medical specimens are kept separate from one another. So if the evidence isn't properly collected, handled or stored, there may be a strong possibility that some of that evidence could be suppressed prior to trial, weakening the prosecution's case.

There are also instructions for how the examiner must observe and document any injuries or other physical aberrations that could be relevant. Any failure to do this could again be used to mount a substantial challenge to the use of the evidence in court.

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