Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

The medical forensic exam is a vital tool for sexual assault survivors. Survivors often need medical
treatment, and sexual assault exams fill that need. But the sexual assault exam is also a critical part of the
reporting and investigation process, because it helps law enforcement get the evidence necessary to bring
the attacker to justice.
The Importance of Preserving Evidence
Sexual assault is a unique crime, because the victim and perpetrator are very often the only witnesses.
Forensic evidence is always important in criminal cases, but it is even more important when there are no
other witnesses to support the survivor’s account. In such cases, where the victim’s word alone is pitted
against that of the accused, it is very difficult to prove guilt beyond a reasonable doubt.
Even before trial, a lack of good forensic evidence can prevent a sexual assault case from moving forward
following the report. In the example of an assault by a stranger, the victim often cannot positively identify
the attacker. In such a case, evidence collected during a medical forensic exam may be key to identifying
the perpetrator.
Likewise, forensic evidence is also pivotal in the majority of sexual assault cases, where the attacker
is someone known to the victim. Probably the most common defense used by intimate partner and
acquaintance-rapists is that sex occurred, but the victim consented to it. A good way to undermine that
defense is to document any injuries to the victim, or any rape-facilitating drugs in her or his body. For
example, a survivor may show signs of violence like bruises, cuts, abrasions, or evidence of strangulation.
That evidence can be crucial, because without it the case often has little chance of proceeding to trial. And
if there is not enough evidence to go to trial, the investigation could come to a halt. Thus, failing to have
evidence collected during a medical forensic exam can be fatal to many sexual assault case.
Further complicating matters is the time-sensitivity of the forensic evidence. Evidence a rapist leaves
behind on the survivor’s body is extremely vulnerable to contamination or being washed away. That is
why sexual assault survivors should always be advised not to shower or bathe until they have received
a sexual assault exam. In any case, the general rule is that if evidence is not collected within 96 hours of
the assault, it cannot be collected at all. And the sooner a victim undergoes a sexual assault exam within
that time, the more evidence can be collected. Note, however, that even if a survivor has taken a shower
evidence may be present, and she or he should still go through with the medical forensic exam.
So, putting all this information together, it is clear that if a sexual assault survivor might someday want
to see the attacker prosecuted, she or he should get a medical forensic exam as soon after the attack as
possible. That is true even if the survivor is not yet prepared to make a police report, because survivors
who do not report have the same legal entitlement to exams as those who do.
Exams for Unreported Sexual Assaults
The Entitlement
As discussed earlier, as long as Texas’s mandatory reporting laws do not apply, the decision whether to
involve law enforcement belongs entirely to the survivor. (p. 36, Mandatory Reporting) Fortunately, sexual
assault survivors have the right to sexual assault exams regardless of whether they choose to report their
assaults. In addition, no matter whether a survivor reports the assault to police, she or he is entitled to have
an advocate present during the exam at no cost (Tex. Code Crim. Proc. § 56.045).
ADVOCACY ACTION: During the exam the advocate’s actions are limited to providing
counseling, emotional support, and information about the legal rights of crime victims. (p. 25, CVR)
40