Houman Fakhimi

Sex Crimes Defense Attorneys Note DOJ Updates Sex Assault Investigation Protocol

Santa Ana sex crime defense lawyers know that the techniques of investigation for these types of crimes has changed rapidly over the last several decades.

That's in large part due to the advances in forensic technology, which prompt police and state attorneys to focus heavily on DNA and other forensic evidence.

However, there is still a fair amount of variation in approach from agency to agency and state to state. That could potentially create an uneven judicial playing field, leaving some suspects more vulnerable to an unjust prosecution or conviction than others.

In an effort to create a more uniform approach, the U.S. Department of Justice has handed down a new 145-page report laying the foundation for national guidelines for forensic medical examinations and investigation approaches specifically in cases of sexual assault.

These guidelines are recommended for use everywhere in the country, but they'll be mandatory for those practitioners operating in the military and in federal prisons.

This version is the first update since the initial report was released in 2004. One of the primary differences is that the older version focused heavily on getting a person who sought medical treatment for an alleged sexual assault to also file a criminal report immediately. Officials dubbed this a "prosecutorial tone." The new report suggests scaling back that pressure in favor of focusing on the alleged victim's physical and mental health needs, though they will still be strongly encouraged to have a forensic exam conducted immediately.

The protocols also suggest that health care providers offer suspected victims of rape access to emergency contraception. In cases where the health care provider has a moral objective, the suggestion is that the facility provide information on how to obtain the medication.

Those changes may not have an immediate effect on defendants involved in sexual assault cases, except that the longer an alleged victim waits to file a report, the more difficult the job of investigators. Certain evidence may be lost the more time goes by.

What has a more direct impact on defendants are the guidelines for exam and evidence collection. This has strong implications for both sides because of the aforementioned increasing reliability on physical evidence in sexual assault cases. Prosecutors might still at times rely solely on witness statements, but there is a broad understanding now that such testimony is often unreliable and fairly easily challenged.

Forensic evidence is tougher to challenge - but our criminal defense team knows it's far from impossible. These guidelines are actually helpful to us as well because while they are voluntary, if an agency chooses not to follow them, it may raise serious questions about the integrity of the investigation. There is a significant breakdown of point-by-point techniques, and it's as important for defense attorneys to take note as it is for investigators.

Among those guidelines laid forth:

  • Strive to collect as much evidence form the patient as possible, taking into account informed consent, exam findings and medical forensic history;
  • Limit the risk of contamination and keep medical specimens separate from those collected for evidentiary purposes;
  • Understand the implications for either the absense or presence of seminal evidence;
  • Carefully document each physical injury or aberration present on the patient.

Hopefully, this kind of uniform approach will limit the number of wrongful accusations and arrests. Those who are facing sexual assault charges in California should not hesitate to contact an experienced sex crime defense attorney as soon as possible.

Contact Houman Fakhimi trial attorney at (714) 705-6701 as soon as possible if you are arrested in Santa Ana.

Additional Resources

A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents, Second Edition, April 2013, DNA Initiative, U.S. Department of Justice.