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Multifarious limitations in forming expert medico-legal opinions on sexual abuse allegations: Forensic academics

04 Oct 2021

  • Highlight need to inform law enforcement authorities/judiciary of limitations so as to find other corroborative evidence
BY Ruwan Laknath Jayakody Since there are multifarious limitations in the forming of expert medico-legal opinions with regard to alleged incidents of sexual abuse and victims of such, forensic science academics have noted that informing such limitations to the law enforcement authorities and the judiciary would enable them to find other corroborative evidence to support or disprove such allegations. This point was made by P.A.S. Edirisinghe and I.D.G. Kitulwatte (both attached to the Kelaniya University’s Ragama Medical Faculty’s Forensic Medicine Department) in an original article on “An expert and expectations: A review on the medico-legal opinions in alleged sexual abuse victims” which was published in the Medico-Legal Journal of Sri Lanka 3 (1) in January 2016. Background An expert who is by virtue of education, training, skill, and experience believed to have specialist knowledge in a particular subject is sometimes called to give evidence in a court, where he/she is expected to guide the court in matters related to their particular field by giving an opinion or deducing inferences from the facts observed by him/her or others, per N.G. Rao’s Textbook of Forensic Medicine and Toxicology. When it comes to a case of alleged sexual assault, the expert conducts a medico-legal examination during the process of which he/she will take down a history of the patient, perform a physical/bodily examination, collect forensic evidence, and carry out investigations. All of this is in order to allow them to prepare a comprehensive report to the court. The report in question is expected to include his/her conclusion and opinion regarding the allegation. However, owing to “facts” being either doubtful or in short supply or in certain instances, non-existent, both the examination of the alleged sexual abuse victim and forming opinions to be presented to a court becomes, as pointed out in R.E. Roberts’s “Forensic medical evidence in rape and child sexual abuse: Controversies and a possible solution”, a challenge to the medical expert. Regardless, from the perspective of the society and the judiciary, there are extremely high expectations placed on expert evidence (including deoxyribonucleic acid [DNA] technology), as K. Tamaki and A.J. Jeffreys’s observed in “Human tandem repeat sequences in forensic DNA typing”, to use science to nail down the perpetrator or exonerate an individual against whom such an allegation has been levelled. That said, while expert evidence has been determinative in many instances as per N. Wall’s “Judicial attitudes to expert evidence in children’s cases”, there have also been, the world over, instances where, as pointed out in “Wrongful convictions, lessons learned: The Canadian experience” by J.R. Manishen, “The genetics of innocence: Analysis of 194 United States DNA exonerations” by G. Hampikian, E. West, and O. Akselrod, and “DNA evidence in jury trials: The Crime Science Investigation effect” by R. Scott and C. Skellern, expert evidence has revealed its limitations and inconsistencies, and in turn led to the revocation of judgements. Sri Lanka Police statistics (grave crime abstracts) on alleged sexual abuse have generally shown an upward trend during the last few years, with more numbers being reported among children. As per Justice Ministry statistics, over a quarter of pending trials, involved some form of violence towards a child, especially alleged sexual abuse, with the proportions of such being over 50% higher in courts outside Colombo. Stakeholders in meetings held to resolve issues pertaining to alleged sexual abuse cases pending indictment, have highlighted the importance of having quality medico-legal opinions by experts. Study Therefore, Edirisinghe and Kitulwatte conducted a retrospective descriptive study based on case records on alleged sexual abuse victims maintained by the duo for a period of 10 years. The records were analysed for the type of abuse that has been alleged (penetration of an orifice – oral, fingering, vaginal intercourse, anal intercourse, or a combination of such; non penetrative – fondling, intra-crural involving a penis being placed between the thighs, and thrusting to create friction), the alleged perpetrator (stranger or non-stranger) and the opinions contained in the medico-legal reports (MLR) sent to the courts. The cases were grouped according to the age; zero to five years (pre-school), six to 10 years (schooling), 11 to 16 years (teenage), and over 16 (consenting age), with 20 randomly selected reports per each age group. The majority were females with a 10.4:1 female to male ratio. In the zero to five age group, there were 15 females as the alleged victims. 14 non-strangers and one stranger were involved as the alleged perpetrators, with 14 instances of penetration being alleged along with one instance of non-penetrative sex being alleged, and the medical opinion not supporting the allegation in nine cases and supporting in six cases. In the six to 10 age group, there were 21 females and three males as the alleged victims. 23 non-strangers and one stranger were involved as the alleged perpetrators, with 14 instances of penetration being alleged along with 10 instances of non-penetrative sex being alleged, and the medical opinion supporting the allegation in 14 cases and not supporting in 10 cases. In the 11 to 16 age group, there were 19 females and two males as the alleged victims. 19 non-strangers and two strangers were involved as the alleged perpetrators, with 17 instances of penetration being alleged along with four instances of non-penetrative sex being alleged, and the medical opinion supporting the allegation in 16 cases and not supporting in five cases. In the over 16 age group, there were 18 females and two males as the alleged victims. 15 non-strangers and five strangers were involved as the alleged perpetrators, with 19 instances of penetration being alleged along with one instance of non-penetrative sex being alleged, and the medical opinion supporting the allegation in 18 cases and not supporting in two cases. Vaginal penetration was the common allegation in the older age group (over 10 years) while fingering was the most common allegation in the below 10 years age group. However, there was no statistical difference found between both the said groups when it came to penetrative and non-penetrative sex. The alleged perpetrator was a non-stranger in almost all the groups, but the non-stranger to stranger ratio increased with age. When it came to the opinions supporting the allegation, in 50% from among the consenting age group (above 16 years), there was, in addition to the alleged abuse, indication of another offence or offences, at the time of the medical examination which included repeated abuse, the involvement of a combination of activities such as the penetration of multiple orifices (vagina/anus), and the presence of bodily injuries amounting to grievous hurt or injuries or conditions amounting to endangering the life or fatal in the ordinary course of nature. That said, in the lower age groups, the medical opinion neither supported nor rejected the allegation. Per Edirisinghe and Kitulwatte, this showed a limitation in the expertise. Further, when the two groups are considered, there was a significant difference found regarding the support given by the medical opinion to the given allegation. Interpreting reports by minors In medical literature and studies published on opinions given by experts on sexual abuse based on genital findings, Edirisinghe and Kitulwatte noted that wide differences existed between the rate of abnormal or supportive findings reported among children examined for suspected sexual abuse; ranging from 50-90% and to 15-20% in many reports in the 1990s, to less than 4% in large series that were published since 2000. In the instant study by Edirisinghe and Kitulwatte, a supportive medical opinion was found among 52% of the children less than 10 years. This showed that there was a significant difference of the medical opinion given by the expert related to the age of the examinee when one considers the frequency with which the medical opinion supports the allegation. Thus, the older the examinee, the allegation could be confirmed with additional medical evidence. These findings, Edirisinghe and Kitulwatte argued, are quite plausible as a child’s understanding about the nature of sexual acts increases with maturity, hence the reliability of the allegation increasing with advancing age, as when the description of the examinee of what exactly took place during the incident becomes clearer, another’s comprehension of the same improves. Therefore, there is the possibility of having more compatibility between the allegation and a supportive medical opinion. Moreover, children below 10 years do not, for the most part, possess the vocabulary to explain the sexual acts that they allege, and therefore, the vagueness of the allegation can lead to diversity in the opinions among the experts. Also, poor comprehension by the child and under recognition of child sexual abuse, results in delays in informing parents or guardians which can in turn lead to the healing of the injuries, thereby making it impossible for the expert to give an opinion. Furthermore, another crucial factor is that experts must be impartial so as to not over interpret normal variants of genital anatomy as signs of sexual abuse and to also not exclude an alleged sexual act merely because of the absence of injuries. M. Pillai explained in the “Forensic examination of suspected child victims of sexual abuse in the United Kingdom: A personal view” that with regard to evidence, three questions, namely, whether the expert’s opinion is based on scientifically reliable data and sound methodology, whether the expert’s opinion is supported by sound reasoning, and whether the scientific data relied upon, applies to the case under consideration, must be posed and applied. Edirisinghe and Kitulwatte also pointed out that the lack of epidemiological and case control studies hinder the expert’s knowledge on normal variants of the hymen. Further, due to scientific advancements, what is believed to be true today will not be so anymore at a later date. In this regard, it is therefore vital that, as Edirisinghe and Kitulwatte emphasised, the opinions given regarding sexual abuse be in agreement with the published literature or research and not instead present a novel theory of causation or a personal theory. Hence, updating their knowledge is a must for medical experts involved in forensic work so as to improve the quality including the accuracy of the opinion they give. If you feel that you or someone you know may be dealing with sexual abuse and/or violence, the following institutions would assist you:

National Child Protection Authority helpline: 1929 Ministry of Child Development and Women’s Affairs helpline: 1938 Women In Need (WIN) 24-hour hotline: 077 567 6555 Sri Lanka Police Child and Women Bureau: 011 244 4444

 


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