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Sexual offences – ‘consent or not’ and the case for forensic examinations

June 01 2014

Sexual offences – ‘consent or not’ and the case for forensic examinations

Consent, or the absence of consent, is frequently the key issue in sexual offences.  In these austere times, however, the prosecution forensic case is often only that the defendant’s DNA was recovered from a swab; intended to confirm no more than that the alleged sexual act occurred, even in cases where that is not in dispute.  This is usually disclosed as an SFR stage 1 report with no indication of the underlying evidential value placed and frequently misses the opportunity to ensure justice is achieved first time round.

Justice is clearly not served when the ‘evidence’ is effectively confined to just one person’s word against another’s, with the jury left to decide whom they believe.  There are often two quite different descriptions of what took place.  Forensic strategy should be focussed on those differences to enable the credibility of either account to be tested.  This can often be through simple and inexpensive forensic examination of clothing for damages, or detection of different types of body fluid where there are differences in the types of sexual activity suggested (.e.g. where vaginal sex may or may not have been preceded by oral sex).  The examples which follow illustrate where forensic investigation of the circumstances surrounding an allegation of rape or sexual assault provided discriminating evidence.

Social Media and Mobile Phones

The material on social media such as Facebook is increasingly being used to shed light on the relationship of the parties’ pre and post offence, or, effectively, as character references for either party.  The disadvantage here, is that these sites are remote and the data on them may no longer be available by the time of the investigation, or cannot be captured and fixed at a specific historic moment in time.  An advantage of examining these sites is that, where the evidence trail can be followed, frequently the results are highly significant.

In one case, we examined the internet communications between a husband and wife, only to initially find that the settings on the husband’s laptop meant that such data had not been stored.  Fortunately his wife had used the same laptop to synchronise her iPhone, which caused all data to be backed up automatically.  The laptop therefore contained in the iPhone backup, a snapshot of the phone at that time.   Much of that data had been subsequently deleted from the phone, but from the backup on the laptop we were able to recover thousands of text messages which provided an accurate picture of the relationship, in a form that could be easily presented to the Court.

Quite often we find that data from a complainant’s mobile phone is recovered in a simple manner for presentation in a prosecution statement, with the phone returned immediately to the complainant making it unavailable for further and more detailed examination by the defence.  By contrast, the defendant’s mobile phone is frequently seized but not examined.  The tools for recovering data from deleted messages are continuing to develop, bringing down the cost of this type of examination the results of which can be critical to a defence.  Data from mobile phones really can assist juries in their assessment of whose account might be closer to the truth.

Damaged Clothing

We have also seen many cases where the examination of damage to clothing has been significant, and has on occasions been decisive.  These cases rely on careful observation, combined with experimental testing and precise evaluation of the results against what would be expected from each account of events.  We have been able to identify tears that were initiated by a cut, for example, or distinguish general wear degradation from a single act of force.  We recommend a check of the exhibits seized in the unused case material as it is increasingly common for this ‘evidence’ not to form part of the prosecution’s SFR Stage 1 reporting of a sexual offence.  Damaged clothing examinations can be a simple form of forensic observation with considerable evidential power when applied using the evaluation guidance enshrined in several Court of Appeal judgements.  From our perspective, given the often expressed concern about the low conviction rates for sexual offences, it is difficult to understand why apparent damage to clothing is so often overlooked by prosecution and defence lawyers.

Examination & Testing of Exhibits that are not part of the Prosecution case

Our laboratory facilities in Durham were put to good use in a case in which a defendant requested that a sleeping bag be examined for body fluid stains, as his account was that consensual sexual activity occurred on the sleeping bag.  The police had previously refused to commission any forensic work on the bag as any findings would not have had potential to support the complainant’s account that the sexual assault had taken place in another room.  We examined the sleeping bag and recovered samples for DNA profiling.  As a UKAS ISO17025 accredited testing laboratory, the DNA profiling we carry out meets the requirements of this exacting and internationally recognised standard.  As has occurred in many previous cases of this type, our examinations and the results of the DNA profiling proved to be consistent with the defendant’s account and inconsistent with the complainant’s.  This was an early example of a disturbing recent trend, by which Police refuse to sanction forensic examinations of exhibits which only have potential to support a defendant’s account.  Indeed, over a couple of years, it has become almost entirely the responsibility of the defence to commission forensic examinations relevant to a defendant’s account of events.

Consent or Not?

Forensic examination cannot directly establish whether or not consent was given, but equally it is wrong for investigators and lawyers to conclude that forensic examination cannot assist, simply because the main issue appears to be one of consent.  It remains surprising how many cases in which it is not disputed that sexual intercourse took place, still see the police authorise DNA profiling of the intimate swabs, in circumstances where the results can have no evidential value.  Properly applied forensic examination should focus on contacts and actions, specifically the differences in the activity described in the disputed accounts.  In our current experience, in recessionary times, this consideration is often incomplete or completely missing from the prosecution of sexual offences.

These three examples illustrate that appropriate forensic examination and analysis in some sexual assault and rape cases can be of significant benefit to the preparation of these cases and to the Courts.

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