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

April 01 2013

In many sexual offences cases, the key issue is consent.  Where possible the ‘evidence’ should not be confined to just one person’s word against another, with the jury left to decide who they believe.  Currently in these cases, the prosecution forensic case is likely to be only that the defendant’s DNA was recovered from a swab, with  no other forensic testing authorised  in these cash constrained times.  This often misses the opportunity to ensure justice is achieved first time round.

In our experience  there are often two quite different accounts of what took place.  Forensic examination should be focussed on those differences to enable the veracity of either account to be tested.  This can often be simple and inexpensive examination of clothing for damages.  The examples below illustrate cases where our investigations provided discriminating evidence in cases of this type.

Social Media and Mobile Phones

For some time, the material on social media such as Facebook has been used to shed light on the relationship of the parties pre and post the offence, or as effective character references for either party.  The disadvantage is that these sites are remote and usually the data on them cannot be captured and fixed at a specific historic moment in time.  It is possible that wall postings and chat logs may no longer be available for our examination.

In one case where we examined the internet communications between a husband and wife, we found that the settings on the husband’s laptop meant that such data had not been stored.  Fortunately, however, his wife had used the same laptop to synchronise her iPhone, and all data present had been backed up automatically.  The laptop therefore contained in the iPhone backup a snapshot of the phone at that time.  Furthermore much of the data in the backup had been subsequently deleted from the phone.  From the backup on the laptop, we were able to recover thousands of text messages which allowed an accurate picture of the relationship to be presented to the Court. 

Quite often we find that data from the complaint’s mobile phone is presented in a statement by the investigating officer with the phone returned immediately to the complainant and therefore not available for any further examination by the defence.  By contrast, the defendant’s mobile phone is likely to be have been 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 which may be critical to your client’s defence.  Data from mobile phones really can assist juries in their assessment of whose account is closer to the truth.

Damaged Clothing

At KBC we have seen many cases where the examination of damage to clothing has been significant and, on occasions, been decisive.  These cases rely on careful observation combined with experimental testing including test cuts and tears with the same material.  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 the Prosecutions Stage 1 reporting of a sexual offence.

Examination & testing of exhibits that are not part of the prosecution case

KBC’s laboratory facilities in Durham were put to good use in a case in which a defendant requested that a bed sheet be examined for body fluids.  The police had previously refused to undertake any forensic work on this as any findings would not support the complainant’s account that the sexual assault had taken place in another room.  We examined the sheet and recovered samples for DNA profiling.  As a UKAS ISO17025 accredited testing laboratory, number 4252, the DNA profiling we carry out meets the requirements of this exacting and internationally recognised standard.  In previous cases of this type our examinations and the results of the DNA profiling have proved to be consistent with the defendant’s account and/or inconsistent with the complainant’s.

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.  It is startling how many cases, where 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 works on contacts and actions, and thus should focus on the differences in the activity described in the disputed account, not the activities that are common to both accounts.  In our current experience, in recessionary times, this consideration is more often than not incomplete or completely missing from the prosecution of sexual offences.

The three examples illustrate that appropriate forensic work in the certain sexual assault cases can be of significant benefit to juries in their role of ensuring justice is achieved.  In the first instance, if you have a sexual offence case and would like to discuss whether or not forensic work could distinguish differing accounts, please call either our Durham or Huntingdon offices. 

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