A couple of quick questions to the forum before I start digging into the books on Friday afternoon:

1) What to do in sexual assault cases where the victim will not cooperate and agree to a SANE exam? Force an exam against their will? Would you need a search warrant or are there exigent circumstances?

2) If you were to go the search warrant route, what if you had to take the victim out of county for a SANE exam? Would the search warrant need to be issued from the county where the offense occurred or the county where the SANE exam was to take place?

Any thoughts would be appreciated.

Wow...I'm really not sure I'd go the search warrant route with a victim of a sexual assault. The reasons are twofold: first, it revictimizes that person (and the State is responsible); second, there may be legitimate reasons a victim might not want the exam (more below on this).

I would try to have a victim assistance team member contact the victim at the onset of the investigation and have that person explain that by not cooperating with the SANE exam, many times it will make prosecution of the case much more difficult, and leaves open the strong possibility that the defense will argue the victim is refusing because nothing really happened (of course, we all know the SANE exams may not render the best possible evidence we could hope for, but it's better than having a refusal). I would also instruct investigators to document as best they can in a refusal situation the reasons the victims give for refusing the SANE. For example, religious reasons would be explainable to the jury. But if it's not in the report, you don't know to argue it. Again, the VAT members could be invaluable in eliciting this information from victims.

Gretchen,
You're right on the money. Without going into too much detail, let me just say that everything worked out in our case and the SANE exam was ultimately accomplished with the agreement of the victim.

Nonetheless, it did cause me to wonder exactly what are the overriding policy considerations in a circumstance where an allegation of sexual assault is made but the victim, for whatever reason, chooses not to cooperate. In the case of a recent sexual assault, where there may be valuable forensic evidence on the body of the victim, the victim is effectively a "crime scene." As we saw in the Duke "rape" case, there may be evidence on the body of the victim that may either implicate or exhonorate the suspect. Do the privacy interests of the victim supercede the interests of law enforcement in ascertaining whether an offense actually occurred and whether the accused is, in fact, the "contributor" of DNA evidence?

My gut feeling is that it would be nearly impossible to obtain a conviction in a circumstance where you had an opportunity to obtain valuable evidence of guilt (or innocence) but did not pursue it.

But Lee, I should point out that personal privacy of the victim should be a controlling factor on this issue. If the victim, for whatever reason, chooses not to have a sane, I would not order or authorize a search warrant absent some VERY extenuating circumstances.


If you get the chance, call me next week, Phil knows where to find me.

Lee,

I've had several cases where the victim refused to cooperate. I got around the problem by getting the child's counselor to explain the child's fear of being touched by anyone.The nurse can then testify that there probably wouldn't be any evidence anyway due to the lengthe of time. Interesting topic but I can't imagine a Judge forcing an examination through a warrant. I did prepare a warrant for a penis once with the help of Tom Bridge. It the penis was described by the victim as being croooked which I have since learned is a problem a few men have. The officers were going to have to take the Def to a doctor's office so he could get a photographed erection. He absconded before the warrant could be served. Good way to run off perverts!!!!!!

Umm, there is actually a term for that kind of unusual shape: see Urban Dictionary.

quote:

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the penis was described by the victim as being croooked which I have since learned is a problem a few men have

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So this is what ya'll do at Prosecutor�s conferences, I was wondering.