Injury in sexual assault cases.

I noticed an article on the Navy JAG NKO site today that should be treated with some caution by defense counsel.  It is entitled Practice Tip:  Presenting medical evidence in a sexual assault case.

I have no problem with the beginning and essential premise of the article – the absence of genital trauma in a rape case is not evidence that no rape occurred (sorry for the double negative).  But the reverse is also true!  The research is clear that rape cases happen and no observable (including by colposcopy viewing or Toluidine dye application) trauma occurs.  The article then goes on to discuss how trial counsel should try to educate members about this.  Up to this point I don’t disagree, however this is the language that should cause defense counsel caution, and should launch a Houser motion.

United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a military judge should use to determine the admissibility of expert testimony.  In United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999), the Court of Appeals for the Armed Forces makes specific the application of the Daubert factors under a Houser analysis.

Here is the language in the article I take issue with, and should the prosecution try this I think you must consider a Houser motion to exclude the testimony.  I’ve italicized the most troubling language.

The use of two separate witnesses – one as a fact witness and one as an expert – is not at all uncommon, and may be required if your examiner has minimal qualifications. When an injury exists, use an expert to explain how the victim’s description of how the injury occurred is consistent with the examiner’s findings. If there is no injury, use the expert to explain how it is possible that a woman could be raped but have no physical injuries. Panel members, like most of society, expect that the victim will have suffered injury; therefore, this testimony is critical.Even where the evidence is inconclusive, it may still be a good idea to offer it into evidence, as your expert will likely be able to opine that at least the evidence is consistent with, or not inconsistent with, the victim’s version of events. Minimal though that evidence is, it is still some sort of corroboration.

Forget whether or not the testimony is admissible under Mil. R. Evid. 702.  There is currently no substantial peer review scientific research to support a conclusion on how a genital injury occurred.  For example, many of the same trauma’s from rape can be caused through consensual sex — a reason that prior consensual sex with others in a 72-96 window from the alleged rape — is admissible despite Mil. R. Evid. 412.  That evidence seeks to show someone else caused the injury.  The injury could be iatrogenic caused by the examination itself, in particular the use of speculums or the colposcope.  If the complaining witness is menstruating and using tampons, research shows that to be a potential cause of vaginal trauma, so always look at that box and findings of the SAK.  Bottom line, there is insufficient reliable peer reviewed research for an expert to opine on the cause of an injury, or that it is consistent or inconsistent with the complaining witnesses explanation of events.  To me this is blatant speculation, and comes close to being human lie detector testimony, and should be challenged as such.  This is especially pertinent as this article discusses the expert testimony in the context, “where the evidence is inconclusive.”  So, you have inconclusive evidence bolstered by speculative human lie detector testimony.

There is certainly research being conducted on the physical effects of rape compared to consensual.  But it is uncertain when there will be something peer reviewed that will stand up to scrutiny.

See e.g., Heather M. Karjane, Using colposcopy in the rape exam: health care, forensic, and criminal justice issues, J. Forensic Nursing, 22 March 2005.

[T]he science determining patterns of injury consistent with non-consensual sexual activity is lacking.

"[P]resence of genital trauma only suggests that penetration has occurred and implies nothing about consent"

As I often caution, remember that the military justice schools put out really good and often very useful information, but defense counsel should remember it is a school solution and not usually directed toward defense counsel.  Much of the material is neutral, but there is a lot that is more directed to the SJA and trial counsel.

As a frustrated defense counsel always losing to the government on experts, you are not alone.  The prosecution gets theirs, the defense doesn’t.  Here is a good article showing that there is a consistent practice of favoring the admission of prosecution expert testimony that is suspect, while the defense expert is treated differently.  Risinger, Michael D., Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock? 64 Albany L. Rev. 99 (2000).

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