Sexual Offences - Notes from your prescribed text book "Introduction to Medico-Legal Practice"

1.       Rape

·       Rape (The crime of rape in South Africa is defined by Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. It falls under the broad category of sexual offences, which includes sexual assault, incest, bestiality and flashing, among other crimes.

·       South Africa’s legal definition of rape is very broad. The act states that “any person (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape”. This includes the oral, anal or vaginal penetration of a person with a genital organ, anal or vaginal penetration with any object and the penetration of a person’s mouth with the genital organs of an animal.

-         Sexual offences include rape and a variety of so-called ‘‘unnatural offences’’ such as sodomy, incest, bestiality and masochism.

-         Of these rape is the most frequently reported, and the medico-legal investigation of the victims and assailants forms one of the most frequent and important tasks of the district surgeon.

-         The use of drugs to induce amnesia and also to suppress the level of consciousness, has become more popular during the last few years, particularly with so-called ‘‘date rape’’.

Medical examination

Interpretation of clinical findings

·       - Extragenital injuries

·       - Genital injuries

·       - Laboratory test results

·       - General considerations

- The medical examination should commence as soon as the complainant (or a representative) has given consent.

·       The examination must be thorough, taking particular note of even the most trivial of injuries, as well as the mental state of the victim.

·       The appropriate specimens (eg vaginal smears, blood, pubic hair) must be routinely taken. It is often only much later, and usually at the trial, that the relevance of a particular observation or laboratory result relating to the victim or assailant is revealed. It is important to bear in mind that bruising may only appear some hours after the assault.

·       It is equally important to examine the alleged assailant thoroughly, both with regard to his physical and his mental state.

·       The examining doctor will not be in a position to say whether the complainant was raped from the medical findings alone.

·       Although the very nature of the investigation demands a sympathetic approach, his or her function is to report objectively on the observations and to prepare him/ herself adequately to interpret these during evidence, avoiding at all stages and at all costs prejudgment of the case.

·       Note that section 335B of the Criminal Procedure Act 51 of 1977 contains special provisions enabling a magistrate or, in cases of extreme urgency, even a policeman, to consent to medical examination of a minor who was probably a victim of a sexual offence. This may occur where, for example, a parent cannot be traced within a reasonable time, or unreasonably refuses to consent, or is himself or herself the suspected offender, or is deceased.

Interpretation of clinical findings

-        Injuries:

·       No observable injuries were recorded in 33% of cases;

·       Tenderness and abrasions of the genitals in 37%;

·       Genital tears in 25%, and

·       Severe genital lacerations with or without extra-genital traumatic lesions in 5%.

·       Seventy-three per cent of the victims were allegedly assaulted by a single assailant.

Interpretation of clinical findings

·       - Extragenital injuries

·       - Genital injuries

·       - Laboratory test results

·       - General considerations

 

- Extra-genital injuries

-         The absence of signs of injury on the complainant’s person should not be construed as consent to sexual relations.

-         She may have been overcome by fear, submitted under threat of harm to her children or partner, or had been heavily intoxicated.

-         In gang rapes, where the victim is overcome by a number of assailants, or if attacked from the back by a single person, it may be very difficult to offer any resistance.

-         Furthermore the victim may be examined shortly after the event, in which case bruising, which may only appear many hours later, is not evident.

-         It is therefore sometimes indicated that the person must be re-examined 24 hours later.

-         Conversely, although the presence of injuries suggests that force was used to overcome resistance — and the more extensive they are the more likely this is to be the case — it should be borne in mind that the injuries may be unrelated to the rape as such, the allegation of rape being part of a trumped-up charge.

-         The occasional bruise, nail scratch or bite mark is not infrequently inflicted during over-zealous intercourse with consent. This includes a so called love-bite.

-         It is also important to examine the finger nails for any foreign material.

 

- Genital injuries

-         In the case of a marked disproportion in size between the assailant and the victim (eg when a child was assaulted) the injuries to the genital organs may be extensive and extend into the abdominal cavity and rectum.

-         If the victim had borne children, no injuries may be detected in or about the vagina, despite the fact that force was used to penetrate the vagina.

-         The presence of an intact hymen, depending on the type of hymen, is not necessarily an indication of virginity. Neither is it an indication that rape has not taken place.

-         On occasion, rape is associated with other abnormal sexually perverse acts such as sodomy, fellatio lingua (oral stimulation of the sexual organ) and genital mutilation.

 

Laboratory test results

-         The results concerning injuries related to sexual assault should be evaluated just as critically as test results from any other type of injury.

-         What the analyst conveys to the reader should be what is read into the report, purely and simply, namely that from the specimen a certain result was elicited. In evaluating this finding relative to the subject under review the reader must determine whether the following was carried out:

. The specimen submitted for analysis was drawn properly.

. It was adequately preserved in transit.

. It was suitably identified.

. It was not contaminated before or after collection.

. It was representative of the subject matter under consideration.

In addition, the method of testing should be known to the reader, and its accuracy, specificity and the ability to reproduce it, understood.

-         Molecular biology and the use of DNA analysis has made it much easier to identify an assailant. In the case of DNA typing the result can prove beyond any doubt that a single hair, drop of blood, sperm, minute fragment of tissue, et cetera, is derived from a particular person.

-         This specificity, which makes it possible to determine a person’s identity almost 100% accurately, is due to the uniqueness of each individual’s nucleic acid (DNA) structure of the cell, and hence the many different permutations of each of these characteristics in any one individual.

 

General considerations

-         Ejaculation may have occurred in the anus or on the perineal surface.

-         Where no ejaculation has occurred, despite penetration, there may be a considerable amount of secreted penile (urethral) mucous which the woman may mistake for ejaculate.

-         Intense emotion or depressants such as alcohol or drugs may inhibit ejaculation.

-         The presence of smegma (secretion) below a free prepuce (foreskin) suggests that the male has not had intercourse for some days.

-         During sexual intercourse, where there is marked disproportion in the sexual organs, the male may rupture the frenular artery, which passes below the head of the penis, and it may bleed profusely. In intercourse with consent this may be a source of considerable embarrassment to both parties, and a revelation to a third party.

-         In studying the topic of rape it is important to bear in mind that mere contact, for example when the penis is placed on the vulva, constitutes penetration. Penetration, therefore, does not necessarily involve penetration of the hymen.

The following examples should clarify this point:

1. Strips of hymenal tissue may still be present in women who gave birth vaginally.

2. The hymen of the non-virginal non-parous (ie not giving birth) woman, depending on the type of hymen, generally reveals an old rupture at the mid-posterior position.

3. A ruptured hymen may be the result of masturbation, and the hymen may bleed profusely.

4. Non-virginal women may have intact hymens, particularly of the annular type. Cases have been reported of prostitutes where this type of hymen revealed no evidence of having ever ruptured. Spermatozoa may be found in the vagina for as long as five to ten days after being introduced there. Although motile spermatozoa can retain their motility for as long as five to ten days after being introduced into the vagina, this period is reduced to no more than an hour or two in the majority of cases.

The absence of sperm in the vagina does not mean that there was no ejaculation into the vagina. This absence may be the result of a zoospermia (absence of sperm) in the ejaculate, or the use of a condom.