THE USE OF MEDICAL EVIDENCE BY THE CRIMINAL JUSTICE SYSTEM

The Collection, Recording and Handling of Medical Evidence

The J88 Form

The key document recording medical evidence that may be needed in order to obtain a conviction in an assault case is the J88 form.95 In court, the J88 is the most important written evidence of the medical indications that a rape may have taken place. Moreover, since the hearing will be several months at least after the original examination, the doctor's memory of the examination may well be hazy at that point, and his or her oral evidence will depend heavily on the J88's contemporaneous record.

The J88 form is defective in several respects. In particular, the form neither asks all the relevant questions, allowing doctors to omit important details in their record of the examination, nor does it provide sufficient space for a doctor to record other relevant information, including a record of the woman's description of what had happenedto her.96 In the case of sexual abuse of children, it is particularly inadequate. District surgeons spoken to by Human Rights Watch who took a particular interest in questions of violence against women stated that they usually had to attach a separate sheet or write on the back of the form to ensure that all details were recorded so that they could refresh their memories at any trial. They noted that it was not until they had been to several trials and been embarrassed by the fact that they could not clearly remember the examination that they had realized how necessary this was. In the meantime, of course, those women who had been examined while the district surgeon was still inexperienced may have suffered as a result. At Pretoria's medico-legal clinic, a separate form has been designed to provide a record of information in cases of suspected child sexual abuse, which is much more detailed than the J88 form.97

Amendments and additions to the J88 form suggested to Human Rights Watch by doctors working in the field98 include the following:

· The form should provide for the doctor to record not only the date of the examination, but also the time. In some cases, it may be crucial to know how long after the alleged assault took place an examination was carried out.

· The ethnic group of the complainant should be recorded, for statistical purposes. While there is a natural resistance in South Africa to the idea of continuing to categorize people by race and ethnicity, public policy interventions can only be properly designed if sufficient information is available to evaluate various possible initiatives. If women of a particular ethnic group report the most cases of assault, then that should be taken into account in devising government responses to the question of violence against women.

· The form currently provides for the doctor to record the "[s]tate of the person as regards physical powers, general state of health and mental state." This section should be expanded to include an assessment as to whether the complainant is under the influence of alcohol or other drugs, which (provided the examination takes place soon enough after the alleged incident) may be relevant to the issue of whether she was capable of giving consent to sexual intercourse.

· The section providing for the doctor to record his or her clinical findings should be substantially enlarged and should in addition be broken into specific questions so that crucial information cannot be omitted by an inexperienced district surgeon unaware of all the relevant details to be recorded.

Firstly, the doctor should record a brief history of the alleged assault. While it may be asserted that it is the job of the police to take a statement from the victim, the doctor's examination is designed to discover whether there is any physical evidence to provide corroboration of the complainant's story. If the doctor hasnot found out and recorded that story, then he or she will not necessarily think to carry out all relevant examinations. The doctor should be prompted to record the alleged date, time, and place of the assault; the nature of the assault (including a check list of possible acts, such as vaginal or anal intercourse, fellatio, cunnilingus, penetration by a finger or by another object, vomiting, defecation, or urination by the victim or the perpetrator, etc.); whether a condom was used by the perpetrator; the number of perpetrators and their identity and relationship to the complainant, if known by her; whether any weapons were used or the complainant was threatened; and any other relevant details. In each case the form should prompt the doctor to confirm whether the result of the medical examination is consistent with the complainant's history of the incident.

In addition, the doctor should be asked a separate list of questions relating to the physical exam, including both genital and nongenital injuries. At present, he or she is left free to decide which details are relevant, the only prompt to carry out particular examinations being a set of pictures of the human body, including both male and female genitalia.

· The pictures on which the doctor may record the position of an injury should be improved, and space should be provided for the doctor to annotate the picture with details of the type of injury as well as simply indicating its position. Presently, there is no picture of an anus nor of the left side view of a penis, and both should be added.

· Given the different physical signs that may be relevant in children of various ages, consideration should be given to designing a specialized J88 form for children. The Pretoria medico-legal clinic, for example, has found it necessary to develop its own form for use in examination of children, which provides a detailed set of questions relating to the vulva and anus, in both cases providing a list of approximately twenty-five different physical signs to consider. While there are pictures of children on the current J88, there are no pictures of children's genitalia, which again should be provided.

· The doctor should be required to note the language in which the examination was conducted, the home language of the complainant, whether an interpreter was used, and who the interpreter was (currently there is a record of interpretation, but in small print, with not enough detail).

· The form should include a space for the doctor to note the type of "crime kit" used and the seal number of the kit, so that the form can be matched with the laboratory results when they are returned; since each kit includes spare labels for additional samples, the best solution might be for a space to be marked for one of these labels to be attached.99

Crime Kits and the Collection of Biological Samples

Since 1993, the police have provided a series of "crime kits" for the collection of medical evidence. When a woman reports a rape to the police and is then taken, or (as may unfortunately be the case) is told to go by herself, to a district surgeon for medical examination, she should be supplied with one of these crime kits. The kits contain slides, swabs, test-tubes, and other equipment for the collection of biological samples, including blood, vaginal fluid, or foreign matter such as semen or hair. Five types of kits exist; the one used depends on the crime that is reported, whether the collection is to be from the complainant or suspect, and the tests that are requested by the police or prosecutor.

When a woman is taken to the district surgeon he or she will open the crime kit and use the equipment to take samples from the complainant. The crime kits come with clear instructions on how to use them. Nevertheless, the collection of biological samples, like other aspects of medico-legal work, requires training to be done correctly. For example, the police forensic laboratory in Pretoria reports that in some cases where sexual intercourse is beyond doubt, forensic analysis of vaginal swabs has failed to detect the presence of semen, because doctors have failed to take representative samples.100 In other cases, doctors have failed to collect potentially crucial samples such as foreign skin cells under the complainant's finger nails, which might indicate that a struggle had taken place. In principle, if there is no suspect at the time the woman is examined, the only samples that need to be collected at that time are those that will disappear over time - such as vaginal swabs for traces of semen or fingernail scrapings - and the woman can be asked to report again for the collection of different samples, such as blood for DNA matching. However, it is better if all samples are taken at once, to avoid the trauma for the woman of going through the same procedure again and the likelihood of important evidence being missed if discretion is involved in deciding which samples to take.

Several reports were made to Human Rights Watch of problems with the availability of the correct crime kits. At Boksburg police station, for example, an investigating officer took a woman to see the district surgeon, but did not have the correct crime kit with her because the police station had run out. The district surgeon refused to examine the woman, although he had the necessary slides and other equipment available in his office for use in his private practice.101 At the Alexandra Clinic crime kits are supplied by the district surgeon to the clinic (women who report to the clinic and allege that they have been raped are automatically examined for medico-legal purposes whether or not they have been to the police), but they frequently run out.102

For the last few years, standard form affidavits have existed to prove the "chain of control" over medical evidence, in order to link the laboratory results to the particular complainant if she appears in court. However, these forms are often filled in retrospectively by police officers, so that in fact no effective system exists to ensure that there is a chain of control. Although the envelope in which the results are returned will usually be correctly labeled with a name as well as seal number, enabling them to be matched to the J88, it would be easy for the results of forensic testing to become separated from the form and thus rendered useless, since the J88 form does not currently provide for the seal number of the crime kit to be recorded.

Police Control of Laboratory Services

Up until the 1960s, what is now the Department of Health had at least three forensic biology laboratories, which supported both clinical forensic medical services and forensic post mortem services. During the late 1960s and 1970s, these services were progressively taken over by the South African Police Forensic Science Laboratory, which was able to offer better pay and conditions to technical staff. This police laboratory, in Pretoria, is currently the only forensic biology laboratory in South Africa, and the police thus have a monopoly on forensic biologicalanalysis.103 The laboratory is equipped to carry out tests, including DNA analysis, on a variety of biological samples and offers a sophisticated service comparable to that available in Europe or the U.S.

The police monopoly on forensic biological laboratory services, like police control over mortuaries, has been much criticized by human rights groups and pathologists, especially those involved in investigating cases of death in police custody, where post mortem evidence has been crucial. Even if the laboratory operates independently in practice, the possibility of police pressure on forensic laboratory services to produce the "right" result could be avoided by taking laboratory services out of police control; moreover, the creation of regional forensic biology laboratories would allow for results to be double-checked in controversial cases.

Since the advent of DNA analysis and the introduction of crime kits, it is of less importance that biological samples be refrigerated during storage and transportation or analyzed within a certain time: DNA analysis requires only cell matter, and samples can be preserved by drying rather than refrigeration. Slides and swabs therefore have a long shelf life; liquid blood samples are more perishable, although it is less urgent that they reach the laboratory quickly than when the only test possible was blood-group matching. In any event, the kits are insulated in polystyrene containers which give them some protection. Nevertheless, the police forensic science laboratory in Pretoria continues to recommend that crime kits should reach the laboratory within fourteen days. Contamination by fungal or bacterial growths if evidence is stored in moist conditions is of more concern, especially of samples that are not included in the crime kit: for example, if a woman's underwear is taken in order for traces of semen to be analyzed, but is stored in a plastic bag (rather than in a container that allows air-drying to take place) and not sent to the laboratory in good time, DNA analysis may become difficult.104 Clear guidelines should be developed and made known to all police responsible for handling medical evidence, setting out acceptable time limits, storage requirements, and other technical considerations to ensure that evidence is not contaminated.

The Police Use of Medical Evidence

Like other crimes, rape, sexual assault, and child abuse cases are investigated by the Criminal Investigation Division (CID) of the SAPS. In many CID units, investigating officers who specialize in sexual assault cases or child abuse have been identified, or alternatively specialized units have been set up to handle such matters (such as the FCS unit in Braamfontein). While national training schemes have been established for officers investigating such cases, there often appears to be insufficient attention paid to the use of forensic medical and other scientific evidence, including the information contained in J88 forms and the results from the analysis of crime kits.

At its most basic level, this lack of concern is indicated by failure even to ensure that medical evidence is included in the docket. If police officers do not wait while a woman or child is examined, it may be the case that the J88 and crime kit are collected only late or not at all. The Alexandra clinic, for example, informed Human Rights Watch that it could be many days before police collected crime kits and J88 forms, even though they phoned the Alexandra police station regularly to remind them. Theoretically, the Braamfontein FCS unit, responsible forinvestigating rapes, should collect the kits, but it was difficult to contact them to do so.105 The Pretoria medico-legal clinic similarly had a "stack" of crime kits waiting for collection and complained that it was "amazing" how police investigators appeared unable to care about or make good use of medical evidence.106

The police also need training in the handling of biological samples and the possibility of contamination since it is the police who are responsible for the crime kits and other material before it is sent to the forensic laboratory for analysis. Human Rights Watch received frequent reports of lost crime kits or items of clothing that had not been properly stored. Similarly, prosecutors, doctors, and women's organizations complain that police investigators are often unable to appreciate the importance of medical evidence, and hence keep women waiting rather than taking them promptly to the district surgeon for examination.107

The Courts and Medical Evidence

Prosecutors

In addition to their law degree, prosecutors receive a six-week training at Justice College, the state legal training center in Pretoria, before they begin to practice. The course includes a section on the law of rape, but it deals only with the legal issues and not with the use of medical evidence. Degree courses are unlikely to have made up for this lack: the University of Cape Town law school, for example, offers only an optional course on forensic medicine in the final year; during 1996 only twelve students took this course.108 In most cases, forensic medicine is only available as an elective course during the LLB degree, which is a postgraduate degree not compulsory for prosecutors (who need only the undergraduate BJuris).

Rape cases are handled by regional rather than district magistrates' courts (a slightly higher position in the court hierarchy), where prosecutors should theoretically be more experienced. Nevertheless, many prosecutors are not familiar with the details of the possible medical evidence. While ignorance of the medico-legal evidence could be rectified by consulting with the medical expert before the case, prosecutors rarely have the time to do so. As a consequence, when leading evidence (presenting their case with the assistance of witnesses) prosecutors often do not ask the district surgeons questions that can help to advance the case but simply make them confirm their signature and the contents of the J88 form, not adding anything to the written evidence already before the court.

By contrast, where the suspect has legal representation (in a small minority of cases), the defense lawyer will usually conduct a vigorous cross-examination of the expert witness, who may therefore be made to appear weak even if the case is good. Because prosecutors are poorly paid for their work, many move quickly on to private practice, where they can make more money and enjoy better working conditions. As soon as they have gained the experience that might allow them to conduct a more effective case, they leave their jobs.

Attempts have been made to address the problem of inexperienced and untrained prosecutors. The office of the Attorney General for the Transvaal, for example, has issued guidelines to prosecutors in sexual assault cases. The guidelines state that in offices where there is more than one prosecutor, one person should be identified to specialize in handling sexual assault cases and in any event, one prosecutor should always handle a case from start to finish. The prosecutor is instructed to consult thoroughly with the complainant before the trial commences and with the district surgeon where medical evidence is available. A list of medical terms and their meanings is attachedto the guidelines in an attempt to ensure that prosecutors are familiar with the terminology of medical examinations and the J88 form. Special treatment is mandated for complainants who will be witnesses, and prosecutors are encouraged to apply for proceedings to be held in camera where appropriate, especially when the complainant is a child. Prosecutors are told to seek expert evidence where possible with regard to sentencing of sexual offenders and the possibility of treatment, and to address the court on the question of sentencing to avoid a situation in which the offender might once again have access to the victim. If the prosecutor regards a sentence as inadequate, he or she is instructed to contact the attorney general's office immediately with a view to appeal.109

At Johannesburg regional magistrates court (the chief court in a magisterial district), negotiations between women's groups and the court have resulted in the allocation of rape cases to specialized prosecutors, who receive one training session a year on medical evidence from a district surgeon at the Hillbrow medico-legal clinic. Notes are handed out with the lecture. A training course on medical evidence was organized in late 1996 for all prosecutors at the court; yet of 150 prosecutors, only twenty-five attended, of whom fifteen left early. Such courses are usually regarded as compulsory.110

Magistrates and Judges

Rape cases are heard either by a magistrate in a regional magistrates court or by a judge in a division of the Supreme Court (a higher level of courts that hear some of the more serious cases at first instance, and in other cases are the first level of appeal from the magistrates courts). Historically, magistrates in South Africa have been ordinary civil servants, while judges had greater independence guaranteed by statute. Since 1994, the Department of Justice has taken steps to increase the independence of magistrates by amending the procedures for appointment and removal. A complete review of the justice system, under the title "Justice Vision 2000" is in progress.

Magistrates and judges also receive training at Justice College in Pretoria, where all court officials are trained, before they begin adjudicating cases. As with prosecutors, this training does not include any specific medico-legal content. An LLB or post-graduate legal diploma is compulsory for magistrates in the regional courts where rape cases are heard, but again forensic medicine is an elective subject. In recent years, the Law, Race and Gender Unit at the University of Cape Town has also held training sessions for practicing magistrates and given lectures at Justice College; it is intended to make gender awareness training a regular part of the curriculum at Justice College. In late 1996, a training session for magistrates was held in KwaZulu-Natal, in association with the School of Law at the University of Natal, Pietermaritzburg. The main aim of the workshops is to provide gender sensitivity training and to encourage gender awareness in the legal profession; so far they have not included a specific discussion of medico-legal evidence.

While those attending the sessions have given positive feedback, magistrates have rejected some other initiatives. Magistrates at the Johannesburg magistrates court, for example, refused to accept training in medical evidence for sexual offense cases: their reasoning was that they did not wish to appear unobjective and biased against defendants in rape cases.111 Yet reports suggest that in practice magistrates and judges are not equipped to evaluate medical evidence. In one case, for example, a defendant convicted in the magistrates court applied for leave to appeal, which was granted by the Witwatersrand Supreme Court. In assessing the case, the Supreme Court judgestated that "the absence of medical evidence indicating penetration is disturbing; the evidence rather indicates assault." The case concerned a woman of forty-two who had three children, in which circumstances it would be quite possible that no evidence of forcible penetration would be found if examination had not occurred very shortly after the incident.112

A doctor who has often given evidence in court commented to Human Rights Watch that both magistrates and prosecutors have trouble understanding medical evidence, especially in child cases, where there is such variation in what is "normal." One magistrate found it difficult to understand, for example, that a child could have become infected with an STD through sexual abuse, even though her hymen was still intact because her vagina was simply still too small to allow full penetration.113 Although Rape Trauma Syndrome has been recognized by the South African courts,114 many magistrates are unaware of the psychological aspects of a rape case and the reasons why a woman may not, for example, report a rape at the first opportunity.115

Lack of medical knowledge by the courts may also prejudice a defendant: one district surgeon interviewed by Human Rights Watch referred to a case he had learnt of where a seventy-two-year-old man had been sentenced to five years' imprisonment for rape, although he was diabetic and taking medication for hypertension that is well known to increase the chances of impotence. This medical evidence, clearly relevant to the case, had not been raised at the man's trial.116

Interpreters

While efforts are being made to improve the representativeness of court staff in South Africa, magistrates and prosecutors, like district surgeons, are mostly white and Afrikaans-speaking. The languages of record in the courts are English and Afrikaans. A large percentage of those appearing before the criminal courts, however, including both defendants and witnesses, are African and may or may not be comfortable speaking to the court in one of the recognized languages. Interpreters therefore play a crucial part in the process. Yet court interpreters do not have special training in legal terminology, nor - particularly relevant here - in medical terminology. While some interpreters have acquired skills through years of experience, others are new and "virtually incompetent."117 Even where technical vocabulary is not needed, interpreters must, especially in sexual assault cases where euphemisms are common, be skilled to translate the nuances of the language used by the different witnesses and the defendant and ensure that the meaning is clear. In one case reported to Human Rights Watch, for example, a fourteen-year-old Zulu girl was asked if she had "slept with" the man whom she alleged had raped her. She denied it, apparently not understanding that "slept with," which had been translated literally into Zulu, also meant "had sex with."118