When evidence is collected during a medical forensic examination or law enforcement investigation, can it be returned to victims?

If personal items such as clothing or bedding are collected in connection with a law enforcement investigation, including during a medical forensic exam, protocols may need to clarify what rights (if any) victims have for that evidence to be returned to them. This question should also be addressed in the informational materials created for victims, because it is a frequent source of concern, especially when the items that have been collected are especially personal or valuable.

If the victim had personal contact with law enforcement as a result of reporting, it may be possible to make the necessary arrangements to have certain items returned to the victim, if requested. But if the evidence is being stored anonymously, it may be difficult for victims to have anything returned to them, because some form of identification is typically required before any evidence or property can be returned to its lawful owner.

Keep in mind that this discussion only pertains to personal items of evidence such as clothing, bedding, or jewelry. Serious concerns would arise if victims were offered the option of requesting biological or trace samples collected during a medical forensic exam. This could create an opportunity for suspects to intimidate victims into requesting to have such evidence returned, to obstruct the investigation and potential prosecution. These samples also represent hazardous materials and should be handled with care. Informational materials should therefore clarify that sexual assault evidence kits do not belong to victims, and cannot be obtained by them. Typically, the only way to request access to this evidence would be through a subpoena filed by an attorney during the course of civil litigation (for example, if the victim or suspect filed a lawsuit).

One way to reduce victims’ concern about having evidence returned is being sensitive about whether specific items should be collected in the first place. For example, “a patient may own only the clothing that is being collected” (National Protocol for Sexual Assault Medical Forensic Examinations, p. 99-100). In addition, some items are unlikely to have significant evidentiary value (e.g., winter coat, shoes). Investigators and forensic examiners can work with victims to balance the objectives of maximizing evidence collection and minimizing grief and loss experienced by the victim.

For more information, see the Online Training Institute (OLTI) module on Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault investigations.

Where should evidence be stored when it is collected during a medical forensic exam with a victim who is not (yet) participating in the law enforcement investigation?

Many communities have established protocols for storing evidence from a medical forensic exam with a victim who has not yet decided to participate in the criminal justice process. Best practice is to store such evidence in a law enforcement facility (National Best Practices for Sexual Assault Kits, p. 38-39). There are many reasons for this, which are summarized in the Online Training Institute (OLTI) module, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

However, some communities initially store evidence in the exam facility (or other health care facility) for some limited period of time. Given the many complexities involved, any community protocol should be clearly spelled out in a written document created by the multidisciplinary professionals involved in responding to sexual assault.

To support this work, EVAWI created model policy materials for law enforcement on Evidence Retention, Disposition, and Removal. The materials include sample language to use when developing an agency policy, as well as instructional commentary and template materials. It can therefore be used as an educational tool as well as a resource to assist in the development of policies, protocols, and training materials.

How long should evidence be stored when the victim is not (yet) participating in the law enforcement investigation?

For any alternative reporting options, the purpose would be defeated if evidence associated with the report was not held long enough to give victims time to convert to full participation in the criminal justice process. Thus, best practice is to hold evidence for at least the statute of limitations for the specific crime (National Best Practices for Sexual Assault Kits, p. 68-72.). Or it could be stored indefinitely, in jurisdictions that have eliminated the statute of limitations for sexual assault or that issue “John Doe warrants” based on a DNA profile rather than a name.

Regardless of how long evidence is stored, this must be clearly explained both in the alternative reporting protocol for professionals and in the informational materials for victims. Otherwise, there could be concerns related to consistency, selectivity, and a lack of fairness.

For more detailed information on this topic, please see the model policy materials for law enforcement agencies on Evidence Retention, Disposition, and Removal.

Should evidence collected in connection with an anonymous or non-investigative report be sent to a forensic laboratory for testing?

One question that is often asked is whether evidence should be submitted for testing, if the victim has chosen an alternative reporting option (like anonymous or non-investigative reporting). This question typically pertains to the evidence collected during a medical forensic examination, but it could apply to any other type of evidence provided in connection with an alternative report. In most cases, the answer is no, because the victim has not consented to this.

The US Department of Justice, Office on Violence Against Women (OVW) has clearly stated that the evidence from a medical forensic exam should not be submitted to the laboratory for testing if it is associated with a non-investigative report of sexual assault:

Submitting non-investigative SAKs [sexual assault kits] to a forensic laboratory for testing, absent consent for the victim, should not be a standard operating procedure for a law enforcement agency (Sexual Assault Kit Testing Initiatives and Non-Investigative Kits, p. 4).

Three reasons are given for this position:

(1) This practice “undermines the victim’s right to choose not to engage with the criminal justice system .”

(2) As a result, it is “not an advisable way to cultivate community trust.”

(3) And, because funds are limited, they “should be directed to activities that promote accountability for offenders and justice and healing for victims” (p. 5-8).

For more information, please see the Online Training Institute (OLTI) module on Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations and EVAWI’s training bulletin, Should We ‘Test Anonymous Kits?’

Should victims be notified when the evidence from their medical forensic exam is going to be destroyed?

Some community protocols require that the victim be notified when the evidence collected during their medical forensic exam will be destroyed (e.g., within 30-90 days of evidence destruction). Other communities have a protocol specifying that victims will be notified of the timelines for evidence storage upfront, but they will not be notified at the time the evidence is scheduled to be destroyed. There is no clear standard for best practice in this area, as both options have advantages and disadvantages. But multidisciplinary protocols should clearly answer the question of whether, when, and how victims will receive any follow-up contact, including notification of evidence destruction. Of course, any follow-up contact also requires documented consent from the victim.

For more information and sample language for victims, see EVAWI’s model policy materials on Evidence Retention, Disposition, and Removal.