Sexual Assault Evidence Collection Kits (“Rape Kits”) and the SANE (Sexual Assault Nurse Examiner) Program

3.5.2.3.Using the Kit in Court

• 
  Problems for the prosecutor can arise when the examiner does not fill out the forms correctly. If the examiner does not follow directions, and performs some steps but not others, and is unable to explain at trial why this was done, the test protocol standards may not appear to the jury to be convincing. If the examiner did not record her reasons for skipping certain steps, be sure to interview her about this.
  

• 
  Sometimes the examiner may use a poor choice of words, insert opinion or conjecture, or insert private information about the victim that is outside the proper scope of the exam. (Efforts have been made to prevent this through specific instructions on the forms, and through instruction provided in the new training video.)
  

• 
  Sometimes an examiner may become rattled on the stand by a defense counsel who grills her why she did not include a particular detail in a report. Prepare the examiner for this line of questioning. Remind the examiner that the instructions for Form Three (on which the patient’s account of the assault is recorded) specify that the report “is not an exhaustive account of every detail of the sexual assault” but rather, “a brief description.”
  

• 
  Due to the backlog of cases at the State Police Crime Lab, the turnaround time for conducting the analysis and completing the initial report may be longer than the lab’s goal for doing so within 21 days. You need to check with your office’s lab liason for progress update. You also need to be sure that you understand which samples have been analyzed in the initial lab work, and which remain. DNA profiling is not conducted automatically; you must request it.
  

• 
  If no results are found, do not assume the kit is not valuable or should not be entered. The chemist can explain to the jury why samples may not have been detected in the particular circumstances of the case, and this may be critical testimony is assuaging any doubt on the part of the jury.
  

These questions are to be used as a guide for the direct examination of a sexual assault nurse examiner (SANE). They are not meant to be an exhaustive list of every possible question, since every case is unique. Please review each question with the SANE prior to her testimony and adapt the questions as necessary.

• 
  Please introduce yourself to the jury.
  
• 
  What is your profession?
  
• 
  How long have you been a nurse?
  
• 
  Please describe your educational background.
  
• 
  Have you received any additional degrees or certifications?
  
• 
  Where are you presently employed?
  
• 
  How long have you worked there?
  
• 
  What are your areas of practice/specialty?
  

• 
  Do you belong to any professional organizations?
  

• 
  What are those organizations?
  

• 
  Have you received any professional recognition or awards from any of these organizations?
  

• 
  Are you affiliated with any teaching institutions?
  

• 
  Please tell the court what those are.
  

• 
  Are you involved in any consulting work?
  

• 
  What do you consult on?
  

• 
  How long have you been doing consulting?
  

• 
  You mentioned that you are a sexual assault nurse examiner. Please explain what that is.
  
• 
  Who runs the SANE program?
  
• 
  How is a sexual assault nurse examiner different from other nurses in the profession?
  
• 
  What type of training did you receive to become a SANE?
  
• 
  Did you receive anything at the end of the training?
  
• 
  As a SANE, have you provided training for other medical professionals?
  
• 
  What are your duties as a SANE nurse?
  
• 
  How many pelvic examinations have you performed?
  
• 
  Were all of those examinations performed as part of your duties as a SANE?
  

• 
  You mentioned that one of your duties as a SANE was to perform an evidence collection kit on a patient. Please explain what that kit is.
  
• 
  What is the purpose of the kit?
  
• 
  Do you perform an analysis of the evidence collected?
  
• 
  Who does perform the analysis?
  
• 
  What is the first step of the kit protocol?
  
• 
  What is the purpose of the interview?
  
• 
  After you interview the patient, what do you do then?
  
• 
  What is the purpose of the visual examination?
  
• 
  After the visual examination, what is the next step?
  
• 
  From where do you collect specimens?
  
• 
  Do you always collect the same set of specimens from each patient?
  
• 
  Why or why not?
  
• 
  After specimens are collected, what do you do with them?
  
• 
  How long does it generally take to complete the kit?
  
• 
  How many have you performed?
  
• 
  Have you ever testified in court?
  
• 
  How many times and in which courts?
  

• 
  On _____ (date of hospital visit), did you receive a call/page?
  

• 
  As a result of that call/page, where did you go?
  

• 
  When you got to the hospital, did you meet _____________ (patient/victim)?
  

• 
  For what purpose?
  

• 
  Did the patient consent to this examination?
  

• 
  Was her consent recorded anywhere?
  

• 
  Can the patient withdraw her consent at anytime?
  

• 
  Did this particular patient consent to the entire exam?
  

• 
  Where did the examination take place?
  

• 
  What time did the exam start?
  

• 
  Was anyone else present?
  

• 
  What was the first thing you did with regard to this patient?
  

• 
  What was her demeanor?
  

• 
  Did you make any observations about her physical appearance?
  

• 
  How was she dressed?
  

• 
  What was the condition of her clothing?
  

• 
  Did you collect the patient’s clothing?
  
• 
  Why or why not?
  

• 
  What did you do with the clothing?
  

• 
  Did you then interview the patient?
  

• 
  During the interview, what did she tell you?
  

• 
  After the interview, what did you do next?
  

• 
  What observations did you make of the patient as you conducted the visual examination?
  

• 
  Based on your training and experience, were you able to determine the age of the injuries -- were they fresh injuries?
  

• 
  How did you make that determination?
  

• 
  Did you record your observations anywhere?
  

• 
  Did you photograph the injuries?
  

• 
  Why or why not?
  
  • 
    If photographs are available, ask the following questions: Do you recognize this photo?
    
  • 
    What do you recognize it to be a photograph of?
    
  • 
    Is it a fair and accurate representation of what you observed on the patient when you conducted the examination?
    
  • 
    I offer this photograph as Commonwealth’s Exhibit ___.
    

• 
  After conducting the visual examination, what did you do next?
  

• 
  What is the purpose in collecting a saliva sample?
  

• 
  How did you collect a saliva sample?
  

• 
  What did you do with the sample once collected?
  

• 
  Did you take an oral swab?
  

• 
  Why or why not?
  

• 
  (If yes) What did you do with the swab?
  

• 
  What did you do next?
  

• 
  How were fingernail scrapings collected?
  

• 
  What is the purpose of collecting fingernail scrapings?
  

• 
  What did you do with those once collected?
  

• 
  What did you do next?
  

• 
  Please describe what a vaginal examination entails.
  

• 
  What is the purpose of the vaginal examination?
  

• 
  Did you conduct a vaginal examination on the patient?
  

• 
  What observations did you make, if any?
  

• 
  After the visual inspection, what if anything did you do?
  

• 
  What is the purpose of collecting vaginal swabs?
  

• 
  What does this entail?
  

• 
  What did you do with the swabs?
  

• 
  What did you do next?
  

• 
  What is a perianal swab?
  

• 
  What is the purpose of collecting a perinal swab?
  

• 
  What does this entail?
  

• 
  What did you do with the swab?
  

• 
  Did you also take an anal-rectal swab?
  

• 
  Why or why not?
  

• 
  (If yes) what does that entail?
  

• 
  What did you do with the anal-rectal swab?
  

• 
  Did you then perform a speculum exam?
  

• 
  Please describe a speculum exam.
  

• 
  What is the purpose of the speculum exam?
  

• 
  What observations, if any, did you make?
  

• 
  Did you collect any additional specimens?
  

• 
  What did you do with them?
  

• 
  How many swabs in total did you collect?
  

• 
  After collecting the specimens, what did you do next?
  

• 
  Which medications, if any, did you give to the patient?
  

• 
  Why did you provide those medications in particular?
  

• 
  Is that routine protocol to provide medication to the patient?
  

• 
  What time did the examination end?
  

• 
  How long did the entire examination of the patient take?
  

• 
  What did you do with the specimens you collected?
  

• 
  Are you responsible for sealing the kit?
  

• 
  How is that done?
  

• 
  Once the kit has been sealed, what do you do with it?
  

• 
  Do you know what happens with the kit from there?
  

• 
  You indicated earlier in your testimony that you record observations of injury on a chart or diagram. I’m showing you this diagram (Show witness actual diagram or, if available, present witness with enlarged diagram on easel for jury to see.) Do you recognize it?
  

• 
  What do you recognize it to be?
  

• 
  The marks on the diagram, did you place them there?
  
• 
  When?
  

• 
  What do the marks represent?
  

• 
  Do they fairly and accurately represent the injuries you saw on the patient during the examination?
  

• 
  I offer this diagram as Commonwealth’s exhibit _____
  
• 
  Please explain each mark you placed on the diagram.
  

• 
  You say that you are a Sexual Assault Nurse Examiner?
  
• 
  This is not your full-time job?
  
• 
  In fact, what it involves is just that you agree to be on call every now and then.
  
• 
  You only conduct an examination, if and when you are paged while on call?
  
• 
  You are not board certified in gynecology?
  
• 
  You are not board certified in emergency medicine?
  
• 
  You are not an MD, are you?
  
• 
  You cannot prescribe medications?
  
• 
  The SANE program is relatively new, is it not?
  
• 
  And you seldom come to court to testify about the examination?
  
• 
  You would agree with me that it’s important to get a complete medical history of the patient?
  
• 
  You did that by asking the patient about her history?
  
• 
  You didn’t speak to her doctors?
  
• 
  You didn’t examine her records?
  
• 
  You took her word as to her history?
  

• 
  Counsel pointed out that being a SANE is not your full-time job. What is your full-time job?
  
• 
  Do you have any other specialties?
  
• 
  It’s true you’re not certified in gynecology. But are you trained to perform a pelvic exam?
  
• 
  Counsel asked about taking a medical history from the patient. Is that routine in any examination you might conduct?
  
• 
  Do you typically check records or speak to doctors when taking a medical history?
  
• 
  So in that sense, is a SANE similar to other routine examinations?
  
• 
  Approximately how many examinations have you completed?
  

• 
  You say that you are a Sexual Assault Nurse Examiner?
  
• 
  You voluntarily entered this program?
  
• 
  You did so because you have a unique compassion for people who’ve been sexually assaulted?
  

• 
  You are paid to conduct the examination?
  
• 
  You are also paid to testify?
  
• 
  You said you were certified by the Department of Public Health
  
• 
  You underwent extensive training?
  
• 
  It was a multi-disciplinary training, was it not?
  
• 
  Law enforcement officers were part of the training, were they not?
  
• 
  You are required to attend follow-up trainings?
  
• 
  Has any of that training been by prosecutors?
  
• 
  The prosecutors trained you about what to expect in court?
  
• 
  And how to prepare your testimony?
  
• 
  As a matter of fact, you met with the prosecutor before coming to court today?
  

• 
  One of your duties is to interview the patient?
  
• 
  You took notes during the examination?
  
• 
  You knew that your notes would be forwarded to the police eventually?
  
• 
  You knew your notes would assist in the prosecution of my client?
  

• 
  Counsel mentioned that you are paid for the examination. How much are you paid to be on call for your duties as a SANE? ($13.35/hr for 12 hour shift).
  
• 
  Do you receive additional payment for every exam that you complete? (No, only receive additional money ($200) if complete more than one exam per 12 hour shift.)
  
• 
  Do you receive compensation for appearing in court? (Yes, $40/hr)
  
• 
  At the time of an exam, you don’t know whether the case will lead to a criminal prosecution.
  
• 
  Do you get paid more or less for completing the examination if it goes to court?
  
• 
  These multi-disciplinary trainings you attended, was the purpose of that training actually to explain what to expect in the courtroom?
  
• 
  Was a defense attorney also present?
  

• 
  When interviewing the patient, what is the purpose of the interview?
  
• 
  Is it routine protocol take a statement from all patients?
  
• 
  When writing the narrative, what are your main concerns?
  

• 
  You met the victim a mere 4 hours after she claimed to be sexually assaulted?
  
• 
  You stated during your testimony that she was calm?
  
• 
  She wasn’t crying?
  
• 
  She wasn’t hysterical?
  
• 
  You conducted how many of these types of exams?
  
• 
  Is it fair to say that most of your patients are pretty upset during the exam?
  
• 
  It’s upsetting for them to talk about what happened to them?
  

• 
  How many SANE examinations have you conducted?
  
• 
  Is the demeanor the same with every patient?
  
• 
  What is the range of demeanors or reactions you have observed?
  
• 
  Based on your training and experience, did the patient’s demeanor cause you any concern?
  

• 
  During the examination, you noted that the patient appeared to have been drinking?
  
• 
  You could smell alcohol on her breath?
  
• 
  As a matter of fact, she admitted to having “2 beers” prior to the alleged assault?
  
• 
  And this alleged assault took place about 4 hours prior to the examination?
  
• 
  Yet her breath still smelled of alcohol?
  

• 
  As a nurse, you’re familiar with the affects of alcohol?
  
• 
  It lowers inhibitions?
  
• 
  It also affects a person’s ability to observe and later recall?
  

• 
  It is possible to detect drug and alcohol use from a person’s blood or urine, correct?
  
• 
  You did not order any test of the patient’s blood to determine her blood alcohol content, did you?
  
• 
  Nor did you order a toxicology screen to determine if the patient had been using illegal substances?
  
• 
  If you were to order such a test, you would have needed the patient’s consent?
  
• 
  And this patient refused to consent, didn’t she?
  

• 
  You stated on cross examination that you are familiar with the effects of alcohol. What are those effects?
  
• 
  So ingestion of alcohol might also affect a person’s ability to consent to sexual activity?
  

• 
  You stated that you did not order a toxicology test. Please explain, according to the protocol, when a toxicology test is ordered.
  
• 
  Were any of those indicators present in this case?
  

1. 
   No Physical Evidence of Sexual Assault
   

• 
  You examined this woman on ____?
  
• 
  The exam took almost 4-5 hours to complete?
  
• 
  You inspected her entire body?
  
• 
  You didn’t see any signs of bruising, cuts, or other visible injury?
  
• 
  You conducted an internal gynecological exam?
  
• 
  During that exam, you were also looking for signs of trauma or tearing?
  
• 
  And you didn’t see any, did you?
  
• 
  So, isn’t it true that you found no evidence whatsoever to support a claim of forced sexual intercourse?
  

• 
  How many SANE examinations have you conducted?
  
• 
  In each of those examinations, the patient claimed to have been sexually assaulted? (Note: In wording your questions, be careful to include the caveat that her patients “claimed” to be sexually assaulted. Otherwise, the defense will harp on the fact that the witness doesn’t know for certain if her patients have been sexually assaulted)
  

• 
  Of all these patients you have seen who claim to be sexually assaulted, is physical evidence of the assault always present?
  
• 
  How often?
  
• 
  Why might physical evidence not be present?
  

• 
  You testified that you observed redness and swelling in the victim’s vaginal area.
  
• 
  It’s true that consensual intercourse can sometime cause swelling or redness?
  
• 
  So the appearance of redness or swelling is not necessarily an indication of forced sexual intercourse?
  

3.5.3.Toxicology Testing for Drug Facilitated Sexual Assaults

3.5.3.1.Background Information

As discussed in Section One, in approximately three-quarters of all rapes and sexual assaults the offender is known to the victim. In some of these assaults the assailant uses drugs to subdue the victim and facilitate the sexual assault. These drugs have been referred to as “date rape drugs.” The best known and, to date, the most prevalent of these drugs are Rohypnol and GHB. The drugs are easily concealed and slipped into an unknowing victim’s drink. After consuming the doctored drink, the victim may feel extremely intoxicated, and will suffer loss of control, loss of memory, and often, loss of consciousness. When combined with alcohol the effects of these drugs are increased and are potentially lethal.

Drug facilitated sexual assaults present very difficult challenges for prosecutors. The victims often do not remember the attack itself, but wake up feeling only that something is wrong. The assaults are often not reported to law enforcement for several days, meaning physical evidence is often lost. Rohypnol and GHB are metabolized by the body very quickly – Rohypnol generally within 48 hours, and GHB within 12 hours. (LeBeau M., et al, Recommendations for Toxicological Investigations of Drug-Facilitated Sexual Assaults, 44 J. Forensic Sci. 227-230, 1999.) Cases with little physical evidence and no victim memory are certainly not easy to prosecute.
In 1999 the State Police Crime Lab collaborated with the Sexual Assault Nurse Examiners Program and the Executive Office of Public Safety, Programs Division to determine a statewide protocol for comprehensive toxicology screening. The protocol is not routinely administered in all cases of suspected sexual assault, but rather, is implemented in conjunction with the Sexual Assault Evidence Collection Exam ONLY if certain indications are present:

1. 
   periods of unconsciousness or a lack of motor control, or
   
2. 
   amnesia or a confused state with a suspicion of a sexual assault having occurred, or
   
3. 
   the patient suspects or believes she was drugged prior to or during a sexual assault and
   
4. 
   the suspected ingestion of drugs occurred within 72 hours of the exam and
   
5. 
   the patient signs the consent form for comprehensive toxicology testing.
   

The protocol involves collecting both blood and urine samples from the victim. The toxicology testing is comprehensive: thus, it may reveal other drugs, legal and illegal, that the patient has consumed in the weeks prior to the assault.

Rohypnol
Rohypnol is the trade name for flunitrazepam, a central nervous system depressant and a member of the benzodiazepine family of drugs. It is related to Valium (another benzodiazepine) but is ten times more potent than valium.
Rohypnol is manufactured by Hoffman-La Roche, a Swiss pharmaceutical company. It is illegal to manufacture, import, or sell Rohypnol in the United States. Rohypnol is a

Schedule IV drug under the Federal Controlled Substances Act of 1970, with Schedule I penalties, and a Class A controlled substance in Massachusetts, pursuant to G.L. c. 94C, § 31. However, Rohypnol is legally available in over 70 countries worldwide, where it is used as a sleeping pill and a pre-anesthetic.

The street names for Rohypnol include:

• 
  Rufies
  
• 
  Roofies
  
• 
  “Row-shay”
  
• 
  Roachies
  
• 
  The Forget Pill
  
• 
  La Roche
  
• 
  Rib
  
• 
  Mexican Valium
  
• 
  R-2
  
• 
  Rope
  
• 
  Ropie
  
• 
  Roopies
  

“The Prosecution of Rohypnol and GHB Related Sexual Assaults,” American Prosecutors Research Institute (“APRI Rohypnol/GHB Manual”), Alexandria Virginia (1999) at Ch 1, p. 2.

The effects of Rohypnol can occur within 15-30 minutes after it is ingested, and last up to eight hours or more, depending on the dose. Typically, the dose is a 0.05-1.0 milligram tablet. If a tablet of Rohypnol is diluted in a carbonated beverage such as beer or soda, a large amount of foaming results that lasts several minutes. The tablet is usually dull green, oval and smaller than an aspirin.
The effects of Rohypnol include:

• 
  Sedation
  
• 
  Dizziness
  
• 
  Lack of motor coordination
  
• 
  Muscle relaxation
  
• 
  Slurred speech
  
• 
  Memory impairment
  
• 
  Impaired judgment
  
• 
  Loss of inhibitions
  
• 
  Loss of consciousness
  
• 
  Visual disturbances
  
• 
  Nausea
  
• 
  Sometimes, excitability or aggressive behavior
  

Id., at Chapter 1, p.3, citing Rohypnol Fact Sheet, Drug Policy Information Clearinghouse, White House Office of National Drug Control Police, September 1996.

GHB
Gamma hydroxy butyrate (GHB) is a central nervous system depressant. The Food and Drug Administration has declared GHB unsafe and illicit except for use under FDA-approved supervised protocols. (APRI Rohypnol/GHB Manual, supra, at chapter 1, p.6) In Massachusetts, GHB is a Class A controlled substance pursuant to G.L. c. 94C, § 31.
Most GHB is homemade; recipes are available on the Internet. It is often mixed with alcohol or fruit drinks to mask its salty taste. The typical dose is one to five grams; it is most commonly found in liquid form in small bottles or vials. Plastic sports bottles, spring water bottles, and small eye-drop containers are often associated with the use of GHB. It is sold at bars and Rave parties per capful or “swig.” (Id., at chapter 1 pp 6-8) When combined with alcohol or taken in large doses, GHB can result in coma or death.
The street names for GHB include:

• 
  Gamma-OH
  
• 
  Grievous Bodily Harm
  
• 
  Georgia Home Boy
  
• 
  Goop
  
• 
  Liquid Ectasy
  
• 
  Liquid X
  

The effects of GHB generally occur within 15-30 minutes of ingestion, and last up to 6 hours.

The effects of GHB include:

• 
  Loss of consciousness
  
• 
  Memory impairment
  
• 
  Confusion
  
• 
  Loss of inhibition
  
• 
  Seizures
  
• 
  Dizziness
  
• 
  Extreme drowsiness
  
• 
  Stupo
  
• 
  Agitation
  
• 
  Nausea
  
• 
  Visual disturbances
  
• 
  Severe respiratory depression
  
• 
  Reduced heart rate and blood pressure
  
• 
  Coma
  
• 
  Death
  

Other Drugs
While Rohypnol and GHB are the most widely publicized drugs used by perpetrators to assist them in committing sexual assaults, there are many other drugs which produce similar anesthetic effects and are also being used by perpetrators. These include:

• 
  Gamma Butyrolactone (GBL) – sold as a dietary supplement, in liquid and powder forms
  
• 
  Gamma Aminobutryic Acid (GABA) – taken as a stress reducer and by athletes to promote muscle growth
  
• 
  1,4 Butandediol – used in the manufacture of GBL
  
• 
  Gamma-hydroxyvalerate (GHV)
  
• 
  Gamma-valerolactone (GVL)
  
• 
  Legally available benzodiazepines (Valium, Klonopin, Rivotril, Restoril, Lexotan, Ativan, Xanax, Serax, Mogadon, Librium, Dalmane, and Halcion)
  
• 
  Over the counter sleeping aids, muscle relaxants, and antihistamines
  
• 
  Ketamine Hydrochloride – also known as Special K, or Ketamine – an animal tranquilizer
  
• 
  Prescription muscle relaxants
  
• 
  Barbituates
  
• 
  Cocaine
  
• 
  Marijuana
  
• 
  Opiates
  
• 
  Chloral hydrate
  
• 
  Ethchlorvynol
  
• 
  Scopolamine, a sedative used to combat motion sickness, also called “Burundanga”
  

(Id., Chapter 1, p. 13)

Toxicology Testing Time Frames
The period of time Rohypnol, GHB or other rape drugs will remain in the urine or blood depends on a number of variables, including the amount ingested, the victim’s body size and rate of metabolism, whether the victim had a full stomach, and whether she previously urinated.
The time limits that drugs may remain in the blood:

• 
  Benzodiazepines, such as Rohypnol remain up to 24 hours
  
• 
  GHB remains 4-8 hours
  

The time limits that drugs may remain in urine:

• 
  Benzodiazepines, such as Rohypnol remain 48-96 hours*
  
• 
  GHB remains up to 12 hours
  

(APRI Rohypnol/GHB Manual, supra, at Chapter 2, p. 1-6, citing LeBeau, supra.)
*However, as noted above, the toxicology test in Massachusetts is limited to cases in which the suspected ingestion occurred within the past 96 hours.

3.5.3.2.Investigation Issues

Because the victim may be unable to provide a full account of the assault, the success of the prosecution is dependent upon thoroughly researching every bit of corroborating evidence. You should also insure that your local police investigators are trained to recognize and respond to drug facilitated sexual assaults. If a victim calls the police and says “I think I was raped” the possibility of drug use should be investigated, and blood and urine samples promptly obtained.

The Victim Interview
The APRI Rohypnol / GHB Manual, supra, recommends an especially detailed victim interview, including the following types of questions:

• 
  What general information can she provide as to where she was?
  
• 
  What does she remember about other individuals present?
  
• 
  What does she remember before receiving the drink?
  
• 
  Who gave her the drink?
  
• 
  What type of drink did she have?
  
• 
  How much control did she have over her drink?
  
• 
  What were her symptoms before she passed out or blacked out?
  
• 
  Does she have any bits and pieces of memory of the sexual assault incident?
  
• 
  Did she wake up during the incident? If so, for how long?
  
• 
  Where was she when she awakened after the incident?
  
• 
  How much did she have to drink that night, and how much does she normally drink?
  
• 
  In the past, when she consumed alcohol, what physical effects did she experience?
  
• 
  Did she ingest any other prescription or recreational drugs that night, or has she in the past?
  
• 
  Did she experience any unusual side-effects the day after the sexual assault?
  
• 
  Were any of her belongings stolen?
  
• 
  How did she get home? Was there anyone home when she arrived? Did they notice anything unusual about her behavior and / or appearance?
  
• 
  Who was the first person she told about the incident?
  
• 
  Did she speak to anyone who was present at the scene (party/bar) in an effort to piece together what happened?
  

(Id., at Chapter 3, p. 3-4)


Forensic Examination of the Suspect
If the report of the assault was not delayed too long to render the issue moot, consider performing a suspect forensic exam to gather evidence of the victim’s body fluids or tissues present on the suspect’s body. The samples include oral and penile swabs, fingernail scrapings, hair combings, blood and urine samples, and hair samples. Even if the defense starts out as consent, and identification is not an issue, the suspect exam can be an important investigative tool. The examiner will look for evidence such as scratches and bite marks. The examiner will also look for trace evidence of blood from the victim. And a suspect exam will help counter a switch by the defendant on the eve of trial, from a consent defense to an identification defense.

Searching the Suspect’s Home
Important evidence may be found at the suspect/defendant’s home, including packages of Rohypnol and other drugs, or packaging materials from a recent shipment of drugs. The cooking utensils and chemical ingredients of GHB may be found. Prescriptions for sleeping aids, muscle relaxants, and sedatives may be present. Residue of drugs may be found on containers, liquor bottles, or punch bowls. The victim may have been photographed or videotaped by the suspect. The suspect may have literature or downloaded computer information on making and / or using drugs to facilitate sexual assaults. The suspect may have kept lists of people invited to a party, or address books, that may provide you with potential witnesses. Phone messages or e-mail messages may have been left that reveal witness names, or details of the event. Evidence from the location of the crime scene may also be obtained: bed sheets and clothing, objects used to penetrate the victim, semen and blood stains. In drafting a warrant, if applicable, include any and all of these potential types of evidence.

Willing v. Unwilling Victim
Not all victims of drug-facilitated sexual assault unknowingly take the drug. Some victims may take the drug voluntarily, for the intoxicating effect, without giving consent for or expecting sexual intercourse to occur. (Rohypnol is popular among high school and college students because it is considered a “cheap drunk” and in some areas, the drug is associated with gang involvement.” (Id., Chapter 1, p.5, citing the Rohypnol Fact Sheet, supra.) And once the victim is intoxicated by the drug, she cannot give meaningful consent. Thus, voluntary consent to ingesting the drug does not equal consent to the sexual act. Similarly, if a victim voluntarily ingests a recreational drug such as cocaine or marijuana, it does not mean she consented to ingesting Rohypnol, GHB, or any other type drug, nor does it mean she consented to the sexual act.
The Charging Decision
You should be prepared to charge the case even if a toxicology test was not done, or was not done in time for the drugs to be detected. While the toxicology test is powerful evidence, the lack of one is not dispositive. You may proceed on the basis of the victim’s and witnesses’ testimony and all other corroborating evidence.
Also consider all other crimes the suspect should be indicted for. If the evidence of rape is too weak to proceed, or if a rape did not occur after the drugging took place, c. 272, § 3 (Drugging a Person for Sexual Intercourse”) may apply. Indecent assault and battery may apply. Kidnapping may apply. Drug possession and / or distribution may apply. Assault with intent to rape may apply. (See section 1.5, Domestic Violence and Sexual Assault Statutes, infra.)

3.5.3.3.Trial Issues

Preparing the Victim for Testifying
All victims and witnesses, in all prosecutions, should be instructed to listen carefully to a question, respond to that question only, and if she does not know the answer or is not sure of the answer, instructed to say so. This preparation is particularly critical for drug-facilitated sexual assault victims, because they may be especially susceptible to testifying to facts they themselves do not remember, as they struggle to fill in the gaps of what happened.


Conducting Voir Dire
Possible questions for the panel include:

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  Can an unconscious woman give consent to sexual acts?
  
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  If she cannot actively say “no,” has she said “yes” by implication?
  
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  Is a woman at fault because she voluntarily decided to drink and do drugs, even if there is no indication that she also wanted to have sex?
  
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  Is it less traumatic for a woman to be raped while unconscious, rather than while awake?
  
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  Should a defendant be excused because he was also drunk or high? Should a defendant be held accountable for rape where he was unable to get a clear answer of consent from a woman because she was under the influence of an intoxicant?
  
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  Would you have difficulty believing that a drug could cause memory loss but still enable the victim to walk around and interact with other people?
  
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  Have you been at a party or bar and seen someone that has had too much to drink and should not be driving? How did you come to the conclusion that they were drunk? What specifically about their behavior led you to the conclusion that they were drunk and should not drive? Did you need a breathalyzer result to confirm this for you or were you sure of your conclusions based on your life experience and common sense?
  

Examining Your Expert Witnesses
Due to the fact that drug-facilitated sexual assaults involve drugs that often produce amnesia in the victim, rendering her unable to relay details of the assault, the testimony of an expert toxicologist and/or pharmacologist to educate the jury about the effects of the drug is highly critical. Medical experts may also testify why the victim may not show any sign of injury or trauma.
In seeking to qualify the witness as an expert at trial, in addition to asking the standard qualifying questions (occupation, employment history and duties, education, experience in the field, training, professional organizations, prior expert testimony) ask questions about the witness’ specific experiences with drug-facilitated sexual assaults. Ask about special training in this field, how many cases the expert has examined, familiarity with leading articles, and whether the expert has been published in this specific area.
Elicit answers from the expert that will educate the jury and/or judge about the drug – including details such as what it looks like, how it is used, how people obtain it, and whether it is detectable if dissolved in a drink. Ask if the drug is soluble in alcohol, or in a soft drink. Ask if the drug has a distinctive taste or smell.
Have the expert describe the effects, and the range of observable effects of the drug. Ask if alcohol makes the effects of the drug more pronounced. Have the expert discuss the state of unconsciousness that may result after ingestion – how long it may last, how the victim would feel if she regained and re-lost consciousness. Ask specific questions about whether an individual recovering from an episode involving the drug may not be able to remember, either completely or partially, some events that took place while they were under the influence of the drug. Ask if they will ever remember these events if they are suffering from amnesia.
If there is a positive toxicology result, ask the expert about the laboratory’s capabilities, and the types of tests used. Ask what the tests revealed, and what types of analysis was performed to confirm the screening assay. Ask if the results are consistent with the victim’s symptoms.
If there is not a positive toxicological result, but the drug is identified by other means, ask the expert if the fact that no drugs were detected in the blood and urine samples means that the victim was not drugged. Ask about the time-frames for detecting these drugs in the blood and urine of a victim.
If there is not a positive toxicological result, and the specific drug used has not been identified by other means, use the expert’s testimony to show that the victim’s symptoms are consistent with incapacitation using a narcotic or intoxicating substance.
Pose the hypothetical question to elicit the expert’s opinion: assuming (relate the facts of your case), and assuming all these facts and conditions to be true, do you have an opinion….

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  About what sorts of drugs could produce these effects
  
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  Whether the symptoms just relayed to you are “consistent with” a particular drug or class of drugs
  
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  That if the victim had been given (the drug) in a (beverage), the symptoms the victim described could have been produced?
  
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  Given the facts of the case, the amount and type of drug and beverage, the amount of time elapsed between ingestion and providing a urine sample, would you be surprised at not finding that particular drug in her urine?
  

Preparing for the Defense
Cross-examination of forensic experts in drug-facilitated sexual assault cases typically focuses on whether alcohol consumption would produce the same effect as being drugged with the drug in question. Defense counsel may cite general studies which indicate that people routinely underestimate the amount of alcohol they consume, and argue in closing that the victim was probably just feeling the effects of consuming a large quantity of alcohol. You must combat this by establishing how much alcohol it would take for the victim to show these effects and to cause a loss of consciousness. You must establish timelines and time frames to show this couldn’t have happened. Corroborate the amount of alcohol the victim actually consumed. And if you have confirmed all of the victim’s answers in advance, so that there will be no surprises for you at trial, ask the victim about her normal habits with respect to alcohol, and whether or not she has any history of blacking out. You may ask her “based on your experience with how your body reacts to alcohol intake, should the amount of alcohol you had the night of the sexual assault have produced the extreme effect you experienced that night and the day after?”
In cross-examining the defense expert, be sure to ask whether the expert is being paid for the testimony, and how much. Ask if the expert has served previously as a defense witness, and if so, how many times, and for what fees. Ask if the expert has been contacted by the defense counsel to provide testimony in other upcoming cases. Ask whether the expert is affiliated with any drug or pharmaceutical companies, or whether one or more of these companies funds his work in any manner. Ask the expert if he has testified on behalf of a drug or pharmaceutical company.
The defense expert will attempt to make points such as:

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  That GHB is a central nervous system stimulant, not a depressant.
  

Your counter: any drug at different dosage levels could theoretically produce some stimulating effects. GHB at low doses may be stimulating for some people. But pharmacologically, GHB is a depressant.

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  That GHB is naturally occurring in the body as a metabolite and thus, safe.
  

Your counter: Potassium naturally occurs in the body in small amounts, however, in certain states having the Death Penalty, Potassium is administered to carry out “lethal injections.”
GHB naturally occurs in the body only in minute quantities. If GHB exists in the urine at a level of up to ten micrograms per milliliter, it may be an indication of ingestion; if it appears in the urine at a level over ten micrograms per milliliter it is probably an indication of ingestion.

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  That GHB is safe, that it is rapidly metabolized to carbon dioxide and water, which are safely eliminated by the lungs and kidneys.
  

Your counter: GHB is not safe; the FDA has issued warnings about the use of GHB and increased reports of GHB related injuries and deaths.

APRI Rohypnol/GHB Manual, Chapter4, p.28

3.5.3.4.Where to go for Further Assistance

• 
  The manual relied on in this section, “The Prosecution of Rohypnol and GHB Related Sexual Assaults,” is available from APRI. The manual includes many reference materials, as well as lists of experienced prosecutors who may be contacted. APRI maintains files on expert witnesses, and information on cases which have been prosecuted. The staff attorneys at APRI may be directly contacted to discuss individual cases.
  

The American Prosecutors Research Institute

Violence Against Women Program

99 Canal Center Plaza

Suite 510

Alexandria, Virginia 22314

(703) 549-4253, fax (703) 836-3195

www.ndaa-apri.org

• 
  The toxicologists at the crime laboratories can educate you.
  

Boston Police Crime Laboratory: (617) 343-4200

Massachusetts State Police Crime Laboratory: (508) 358-3100

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