Evidentiary Issues and Forensic Medical Institutes

Women in CEE/FSU who have been victims of sexual assault may also face difficulties in getting certifications from forensic doctors necessary to proceed with prosecution. For example, in Russia, forensic doctors have been reluctant to issue a certification of rape when the woman in question was not a virgin prior to the attack. Women require a referral to obtain a forensic examination, and such exams are often costly. The police may refuse to refer a woman, or may not refer her in time, thus resulting in a loss of evidence that would be critical to prosecution. Evidence from a non-forensic doctor not admissible without the doctor's testimony, which is generally difficult to obtain. From Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 151-52 (Kelly D. Askin & Dorean M. Koenig eds. 1999).

Victims also reported delays in gaining referrals to forensic medical institutes. Evidence from a forensic medical examiner is critical, if there is to be a prosecution in Russia; while evidence from non-forensic medical doctors would be technically admissible, "in practice only evidence from [the forensic institutes] is admitted in sexual assault cases." This is true in many countries in the CEE/FSU.

Human Rights Watch found that doctors at the state-run forensic medical institutes would only examine victims who had been referred by the police. Police routinely delayed referrals. Exams, when a referral was obtained, were themselves "abusive"; victims reported being treated with little sensitivity to the trauma they had suffered, and many "are left with the impression that the doctors blame them for the assault." Forensic doctors also only sought that specific evidence requested in the referral, thus missing other information that could be important to an investigation or prosecution.

From Human Rights Watch, Too Little, Too Late: State Response to Violence Against Women, Vol. 9, No. 13(D) (December 1997).

Evidentiary rules can also impose significant obstacles to the effective prosecution of sexual offenders. For example, some jurisdictions require corroboration of the victim's testimony, either through eyewitnesses or physical injuries. In Belarus, for example, "the victim's testimony alone, unless corroborated by other evidence, is not enough to convict someone." From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 77 (9 November 2000). The situation in Romania is described as follows:

As long as the essence of the crime of rape is sexual intercourse without consent, the evidence should be corroborated with the existence of coercion. With extremely rare exceptions, due to the intrinsic nature of the rape, witnesses' testimony is out of the legal evidence matter, which consequently affects legal proceedings by the victim. Therefore, from the victim's point of view, the evidence of rape implies interference in her private life. Generally, the investigation related to the social performance of the victim and the investigation prosecutors and bodies consider her "good reputation" as an element that would enhance the acceptance of coercion. The problems appear if the victim is not considered either an "honest" woman or a woman with a settled personal life (for instance, a woman who is not in a permanent relationship with a male partner or married would not offer enough credibility to the investigation bodies concerning the fact of coercion; the general assumption would be that she consented to the sexual relationship and afterwards, for different reasons, including blackmailing, decided to make a complaint of rape). As a general rule, the existence of coercion is not relevant if a close relationship had been developed between the victim and the perpetrator before the alleged rape. The perception is the same if the victim claims that she went to the place where the rape was committed for a purpose other than a sexual relationship.

From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 364 (9 November 2000).

The former Special Rapporteur explains that in India, while the judiciary "has recognized that the special circumstances of rape generally do not lend themselves to the presence of eyewitnesses, judges, especially in cases where the victim is not a virgin or is unmarried, continue to require circumstantial evidence, such as physical injuries, torn clothing or the presence of semen, to corroborate the victim's story." 1997 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1997/47) (12 February 1997). Even in systems that do not formally require it, corroboration may be implicitly required, as judges or juries may not accept the woman's testimony as sufficient in the absence of other evidence such as physical injuries.

The Rules of Procedure and Evidence for the International Criminal Tribunal for Rwanda (U.N. Doc. ITR/3/REV.1) (1995), and the Rules of Procedure and Evidence for the International Criminal Tribunal for the Former Yugoslavia are good models for rules and procedures elsewhere. Rule 96 of the Rules for both Tribunals specifies that corroboration of the victim's testimony is not necessary, that evidence of a victim's prior sexual history is not admissible, and that consent as a defense cannot be used if the victim was threatened with physical or psychological violence or detention to herself or a third person, or the victim had good reason to fear such violence or detention.

Adapted from Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 197 (Kelly D. Askin & Dorean M. Koenig eds. 1999); World Health Organization, First World Report on Violence and Health 170 (2002).

The International Criminal Court's Rules of Procedure and Evidence create similar protections for victims. Rule 70 provides that in cases involving sexual violence, the Court shall be guided by and apply the following principles:

(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim's ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; (d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.

Rule 71 prevents the International Criminal Court from admitting "evidence of the prior or subsequent sexual conduct of a victim or witness."

Other evidentiary rules can also result in the revictiminzation of the victim during the trial. For example, in some jurisdictions, the victim's virginity may be legally relevant, or the law may allow the victim's past sexual history to be introduced, on the premise that showing that she had consented to sexual contact with other partners shows that she also consented on this occasion. The victim's past behavior, however, is not relevant to the question of what happened on the occasion of the assault. Further, rarely are there corresponding laws to allow inquiry into the accused's past sexual behavior. Laws that allow introduction of evidence of the victim's past sexual behavior essentially result in the victim being put on trial, instead of the defendant.

To avoid revictimizing the victim of the assault, many jurisdictions have enacted "rape shield laws." These laws prohibit admission of evidence of the victim's past sexual conduct. Generally, however, such laws still allow admission of evidence of the victim's past sexual contact with the defendant.

From Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 198-99 (Kelly D. Askin & Dorean M. Koenig eds. 1999); 1997 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1997/47) (12 February 1997); 2003 Report of the Special Rapporteur on Violence Against Women, Developments in the area of violence against women (1994-2002) (E/CN.4/2003/75 and Corr.1) 39 (6 January 2003).

In the United States, some jurisdictions have recently enacted laws designed to prevent admission of discussions between rape victims and rape counselors. Victims of sexual assault need both short- and long-term counseling. While the discussions that occur between a medical doctor or psychologist are often protected by "privilege" and thus cannot be admitted in court, communications to a rape counselor are generally not so protected. Similarly, the therapist/client privilege was established to protect the confidential communications of victims and witnesses to psychotherapists in United States Military Courts. This privilege has recently come under attack with a Military Judge issuing a subpoena of a rape counselor’s records in a high profile sexual assault case.  From The Associated Press, “Rape Counselor Fights Warrant over Opening Cadet’s File” (June 5, 2005). Some states have taken steps to protect such communications with "privilege" rule similar to the rule that protects communications with medical doctors. In addition, some jurisdictions within the United States have introduced evidentiary protocols for police and hospitals. Particularly with the availability of DNA testing, ensuring the proper collection of evidence from sexual assault examinations is critical. From Neal Miller, Review of State Sexual Assault Laws: 1997 (7 October 1997).

For a collection of research and reports on criminal laws relating to sexual assault, click here. 

For the 2008 United Nations expert group report entitled "Good practices in legislation on violence against women" including recommendations on evidence, Section 7.H, click here.  For the Russian version of the report recommendations, click here.