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EVAWI > Resources > Forensic Compliance > FAQs > Evidence Collection
Forensic Compliance Frequently Asked Questions

Note: The information on this website is designed to: (a) communicate the requirements of the Violence Against Women Act (as reauthorized in 2005 and 2013), and (b) offer recommended practices for implementation. The goal is to highlight examples of communities striving to achieve a higher standard of the “spirit of the law,” rather than simply meeting the “letter of the law” for VAWA forensic compliance.  It is critically important that readers consult state laws and regulations, as well as local policies and protocols, because they may have additional requirements beyond those included in VAWA 2005 and VAWA 2013. For more information specific to your state or territory, contact the STOP Grant Administrator or coalition of advocacy organizations providing services for sexual assault victims.  A listing is available from the website for the Office on Violence Against Women, U.S. Department of Justice.

Q What is the recommended timeframe for collecting forensic evidence?
Q Can evidence be returned to victims?
A What is the recommended timeframe for collecting forensic evidence?

While the standard of 120 hours is often used as a general guideline, best practice is for each sexual assault to be evaluated on a case by case basis. The question of whether or not to conduct an exam should be based on the facts of the case, the victim’s history, the likelihood of recovering evidence, and the types of evidence that will be needed for successful prosecution. To illustrate, evidence may be available beyond 120 hours in cases where:
  • The victim did not bathe or washed minimally
  • Multiple assailants were involved
  • The victim was seriously injured or describes a great deal of force
  • The victim reports pain and discomfort
  • The victim reports inflicting serious injury on the assailant(s), or
  • The victim is a child, dependent adult or was unconscious or physically helpless during the assault
There may be other circumstances in which it is prudent to conduct an exam beyond the standard timeframe that is used as a cutoff in a particular jurisdiction; however, these examples illustrate the need for greater flexibility when making the determination. In fact, it is worth noting that the 72-hour cutoff that was historically used in many jurisdictions was originally established by the medical community as a window of opportunity for successfully treating sexually transmitted infections (STI’s) and pregnancy. Thus the 72-hour time frame for conducting an exam was originally developed based on medical considerations, not forensics; it generally had nothing to do with the likelihood of recovering forensic evidence.

VAWA does not specify the timeline or corresponding circumstances when evidence should be collected – there is no “letter of the law” on this topic. However, the spirit of the law is to follow the current recommendation for best practice, which is to:
Make decisions about whether to collect evidence on a case-by-case basis, guided by the knowledge that outside time limits for obtaining evidence vary due to factors such as the location of the evidence or type of sample collected… It is important to remember that evidence collection beyond the cutoff point is conceivable and may be warranted in particular cases (U.S. Department of Justice, Office on Violence Against Women, 2004, p. 67).
In other words, best practice is to collect evidence whenever it is available. It is not a good idea to adhere to a rigid time frame that will inevitably limit the collection and documentation of valuable evidence.
A Can evidence be returned to victims?

Community protocols need to clarify what rights (if any) victims have for returning clothing or other evidence associated with various forms of reports (e.g., clothing, bedding). This information can then be incorporated into the informational materials created for victims. In communities where evidence is stored anonymously by law enforcement, it may be difficult for victims to have anything returned to them, because some form of identification is typically required before evidence can be returned to its lawful owner. However, if the victim has met with law enforcement at some point during the alternative reporting procedure, it is possible that the officer can make the necessary arrangements to have certain items returned to the victim if requested. This would likely require the victim to show proper identification, with the understanding that the victim’s identity will not be recorded as part of the report.

When evidence in connection with such a report is stored by a SAFE program or other health care facility, it may be easier to return some items to the victim if requested. However, this will likely pertain only to items such as clothing or bedding. Serious concerns would arise if victims were offered the option of requesting other types of evidence (e.g., biological samples collected during a medical forensic examination). Among other concerns, this might create an opportunity for suspects to intimidate victims into requesting to have evidence returned, to obstruct the investigation and potential prosecution. We therefore recommend that informational materials clarify that any biological evidence collected does not belong to the victim and that no process exists for victims to request access to this evidence or have it returned to them.
This project is supported by Grant No. 2013-TA-AX-K045 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed on this website are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
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