National District Attorneys Association

 

NATIONAL CENTER FOR PROSECUTION OF CHILD ABUSE


Volume 16, Number 9, 2004

Update


Pediatric Sexual Assault Nurse Examination: Challenges and Opportunities for MDTs in Child Sexual Abuse Cases

By Roger A. Canaff, J.D.1

As Sexual Assault Nurse Examiner (SANE) Programs develop and proliferate around the country, many are training their nurses in the specialized area of child examination.2 This specialized treatment area can yield great advantages for multi-disciplinary teams (MDT) seeking to assemble evidence in problematic child sexual abuse cases. It can also present challenges, both to the forensic examiners themselves and to the other MDT members working on the case.

Benefits of a Pediatric SANE Program

Pediatric SANE programs provide three major benefits to MDTs. First, they provide comfort and care to child victims far superior to the traditional emergency room or crowded doctor’s office.3 Of course, the development of Child Advocacy Centers (CACs) has greatly improved the environment for alleged child sexual abuse victims, and many SANEs work through those as well. However, for localities that have yet to develop a full CAC, having a well-run SANE program at a designated local hospital is a must. SANEs are taught that being a forensic examiner does not require them to abandon their nursing role. They see victims as patients (appropriate in order to preserve their neutrality as expert witnesses), but are specially trained to examine children tenderly, quickly, and with patience. They can also provide medical treatment within the scope of their discipline, or quickly refer the child for further medical attention as the need arises.4

Secondly, SANEs provide competent and consistent physical evidence collection from the victim’s clothing and body. They are trained in the correct methods for gathering, marking, packaging and protecting whatever physical evidence is gleaned, using the latest sexual assault kits. Just as valuable, they understand that part of their duties as a forensic examiner is to testify—to mundane facts if necessary, such as simple chain of custody testimony that is often needed in cases involving DNA and other physical evidence. SANEs understand that they may be called as witnesses with regard to evidence they’ve collected and processed, even months or years after the date of the examination. As a part of their job, they keep meticulous records and conduct their duties with an eye toward possible litigation.

Thirdly, SANEs can provide expert testimony about human anatomy and physical findings made during the examination. The limits of this testimony continue to be debated, particularly with regard to the relationship, if any, between observed injury and the likelihood of consent. (A future Update will explore the ‘injury vs. consent’ issue as it applies to adolescent victims.) However, the basic question of whether SANEs can testify as experts in the field of sexual assault examination has been answered by many courts in the affirmative.5 In most states, the threshold for an expert is simply someone who knows more about the subject than the trier of fact, and who can elucidate certain subjects for the sake of arriving at the truth.6 Well-trained pediatric SANEs usually have at least 80 hours of training to become a pediatric-qualified SANE (40 hours SANE training with 40 hours additional pediatric training). They also must hold a degree of R.N. or higher.7 Prosecutors facing challenges to SANE testimony on the basis of their expertise (i.e., the ‘she’s not a doctor’ challenge) should become familiar with their state guidelines on expert testimony, and should consult Federal Rule 702 for guidance as well.8

SANE Expert Testimony in Child Sex Cases
The absence of injury

Prosecutors may assume that, with their specialized knowledge of the ano-genital area, SANEs can usually detect and testify regarding injuries that support children’s claims of abuse. Facts show, however, that most child sexual assault cases do not produce detectable injury.9 For this reason, the value of SANE expert testimony often lies in its ability to explain the absence of injury rather than its presence.

There are many reasons that injury may not occur in a child sexual abuse case, ranging from the type of abuse to the resiliency of the tissue.10 For example, a seven-year-old girl may report slight digital penetration from the offender that caused her pain. Assuming there was an immediate report and an exam within 24 hours, a juror may wonder why no injury was detected. But the hymen in a prepubescent girl is tender to the touch, and even slight contact with the hymen or immediately surrounding tissue before puberty may cause discomfort.11 SANE testimony can address this fact in rebuttal, if the issue is raised by the defense, or on cross examination if the defense attorney calls the SANE to establish the fact that no injury was detected.

Myth busting

SANE testimony can be instrumental in debunking common myths. For instance, it is a common belief that the hymen is a sheet of tissue covering the vaginal opening, remaining unbroken until sexual intercourse occurs.12 In child and especially adolescent cases, this myth can raise challenges for the prosecutor. Consider a case where a 12-year-old girl who has reached puberty, willingly (but illegally) engages in sexual intercourse with an adult male. Due to physiological changes that occur to the hymen during puberty, 13 she is likely to experience no discomfort or injury, and the examination shows no detectable injury to the hymen. The defense asks how sexual intercourse could have occurred if the hymen is ‘intact’. In fact, the question is irrelevant. The hymen is a ring of tissue surrounding the vaginal opening—not a seal that waits to be broken.14

Consider also a case where hymenal injury to a prepubescent child is observed. In such a case, the tenderness of the prepubescent hymen and the structures which protect it are important subjects that SANE expert testimony can clarify. For example, the jury may be asked, directly or indirectly, to speculate on whether typical child play (jungle gym, normal roughhousing, etc.) or self-stimulation could have caused the observed hymenal injury. In such a case, an expert SANE can testify that the hymen in prepubescent children is protected by layers of tissue. Typical child play will not cause injuries to this deep-seated tissue.15

In addition, while little girls do engage in self-stimulation, they do so clitorally, not vaginally. As mentioned above, vaginal penetration of any kind is likely to be painful until puberty. 16 It is important to have an expert ready to clarify these issues.

The Importance of Neutrality for SANE Expert Witnesses

It is of utmost importance for SANEs to be perceived by the court as neutral, scientific examiners. Although they are appropriate members of a Sexual Assault Response Team (SART) or CAC staff, they are patient advocates17, not victim advocates. SANEs should avoid referring to patients as ‘survivors’, for example, and even the term ‘victim’ is not recommended. To a SANE, a suspected sexual assault victim is a patient, to be treated professionally and compassionately as the nursing role dictates. However, for the purposes of the examination, the SANE is an unattached, forensic professional.

Prosecutors can help develop SANEs as respected experts, and should approach SANEs the way they would any other expert medical witness. Face to face pre-trial interviews, particularly when SANE methodology is new to the prosecutor, are crucial. Encourage SANEs to discuss their findings with the defense also; indeed, it is a mark of progress for a SANE program when defense attorneys seek their expertise. Respect the SANE’s unique role in the MDT. It is appropriate for SANEs to meet with MDTs to discuss new methodology, feedback from exams, updates in STD or pregnancy prophylaxis, etc., but SANEs must not become, or be perceived as, ‘in league’ with prosecutors and investigators. This adherence to professionalism is crucial at all stages of the investigation and litigation process.

Conclusion

The value of pediatric SANE programs for the benefit of child sexual assault MDT’s cannot be underscored. Prosecutors seeking to start programs in their jurisdictions should consult with established programs18 to determine equipment and staffing needs; coordination between law enforcement, child protection and other agencies; and training goals for both the new SANEs and the prosecutors who will utilize them as witnesses. Patience is key—a good program takes time to get on its feet, and courtroom credibility takes time to establish. The end product, however, can be invaluable in the search for truth in this difficult and confusing area of prosecution.

 

1 Senior Attorney, APRI’s National Center for Prosecution of Child Abuse.
2 Specialized training for pediatric sexual assault examination is available in Georgia, Tucson, Arizona and New York City, for example. These programs can be accessed at www.gnesa.org, www.sacasa.org, and www.nycagainstrape.org, respectively.
3 For a discussion on the general state of sexual assault examination before the advent of SANE programs, see, e.g., Elliot, Laura, The Rape Stops Here, Washingtonian Magazine, Vol. 31 No.11, August 1996.
4 See, e.g., Oregon State Board of Nursing, policy statement entitled Registered Nurse Scope of Practice as a Sexual Assault Nurse Examiner. Available at www.osbn.state. Accessed November 5, 2003.
5 See, e.g., Griffin v. State 531 S.E.2d. 180 (Ga. Ct. App. 2000) (reconsideration denied 3/30/2000, cert. denied, 9/8/2000; Chevez v. State, 2000 WL 1618459 (Tex. Ct. Crim. App. 2000) (Unpublished opinion); State v. Shipley, 1997 WL 21190 (Tenn. Crim. App. 1997) (Unpublished opinion); Commonwealth v. Velasquez, 35 Va. App. 189, 543 S.E.2d. 631 (2001)..
6 31A Am Jur 2d Expert and Opinion Evidence §44.
7 International Association of Forensic Nurses, Pediatric Education Guidelines for Sexual Assault Nurse Examiners. These guidelines were promulgated by the IAFN SANE Education Guidelines Taskforce. The IAFN can be reached on the Internet at www.forensicnurse.org.
8 Rule 702, Federal Rules of Evidence (2003) accessed at http://www.law.cornell.edu/rules/fre/. Accessed November 5, 2003.
9 Giardino, Angelo, MD, et.al., Sexual Assault: Victimization Over The Lifespan, A Clinical Guide G.W. Medical Publishing 2003, p. 83 “Limitations of the Forensic Evaluation.”
10 Girardin, Barbara, RN, PhD, et.al., Color Atlas of Sexual Assault, Mosby, 1997, p. 23. “Findings in the Assaulted Female: Adult and Adolescent.”
11 Brown, Suzanne, MSN, SANE-A, Inova Forensic Assessment and Consultation Team (FACT) Management Coordinator, Inova Fairfax Hospital for Children, personal interview, November 6, 2003. The author wishes to thank Nurse Brown for her contributions to this article.
12 See, e.g., Holtzman, Deanna, Ph.D. and Kulish, Nancy A Brief Communication on Defloration, The Psychoanalytic Quarterly, Vol. LXXI, No. 2, April 2003. Many advice websites for young people also address this myth. See, e.g., www.adviceforallages.org/html/sex_myths_exposed.html, www.goaskalice.columbia.edu/2423.html, www.yrshr.org/mythandfact.html.
13 Girardin, supra note 10, at p. 2-4.
14 Id.
15 Brown, Suzanne, supra note 11.
16 Brown, Suzanne, supra note 11.
17 The term ‘patient advocate’ here refers to a SANE who causes no further harm to the patient and provides basic medical care within the scope of nursing practice.
18 For more information, contact the Sexual Assault Resource Service, based in Minneapolis, Minnesota at www.sane-sart.com. A full SANE Development and Operation Guide is available through the Department of Justice Office for Victims of Crime at http://www.ojp.usdoj.gov/ovc/publications/infores/sane/saneguide.pdf. Additionally, the Forensic Assessment and Consultation Team (FACT) Center at Inova Fairfax Hospital for Children can be reached at (703) 698-3505, or by mail at 3300 Gallows Road, Falls Church, Virginia 22042-3300. Nurse Brown can be reached at Suzanne.brown@inova.com.

 

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