For the Defense - Vol. 4, Issue 3 - 47

* perianal/rectal assault sample collection,
* buccal swab collection (for DNA analysis), and
* a transfer of evidence form.46
The U.S. Department of Justice Office on Violence
against Women has created "A National Protocol for
Sexual Assault Medical Forensic Examinations Adults/
Adolescents," which outlines procedures to follow
and a multi-disciplinary approach to treatment and
investigation of sexual assault.47
Some communities are now creating Sexual
Assault Response Teams (SART) which makes a SANE
part of an interdisciplinary team for treatment and
investigation of sexual offenses.
In 2002, the Pennsylvania Coalition Against
Rape (PCAR) published Sexual Assault Response
Team (SART) guidelines. The SART team is a
multidisciplinary team which provides services to the
victim of sexual assault.48 The SART Team members
recommended by the PCAR include:
* A medical director who provides guidance for
the development of protocols and is available
for consultation;
* A SANE nurse who collects and preserves
forensic evidence, offers prophylactic measures
for preventing pregnancy and sexually
transmitted diseases, provides resources and
referrals and will be available to testify as a
witness;
* A sexual assault counselor/advocate who
provides support, advocacy, crisis counseling and
information;
* A law enforcement representative, who
responds to the crime, interviews the victim and
investigated the incident; and
* A prosecutor who determines whether there is
sufficient evidence to prosecute and prosecutes
the case.49
The members of the SART team as recommended
by the PCAR are consistent with the National
Protocol for Sexual Assault Medical Forensic
Examinations established by the Department of
Justice.50 It states:
A coordinated, multidisciplinary approach
to conducting the exam provides victims
with access to comprehensive immediate

care, helps minimize trauma they may
experience, and encourages their use of
community resources. Such a response can
also enhance public safety by facilitating
investigation and prosecution, which
increases the likelihood that offenders
will be held accountable for their actions.
Raising public awareness about the
existence and benefits of a coordinated
response to sexual assault may lead more
victims to disclose the assault and seek
help.51
The issue with SART teams is that the
involvement of law enforcement may make the
SANE, as part of the investigation, to act as an arm
to law enforcement, which may affect admissibility
of statements of the victim made to a SANE. The
DOJ acknowledges this in its National Protocol
for Sexual Assault Medical Forensic Examinations
stating,
For health-care providers, Crawford and
its progeny do not change the priorities
of the medical-forensic examination,
which should continue to hold the health
and well-being of patients of primary
importance. The problem arises when
clinicians are perceived to be investigators
rather than health-care providers. Even in
cases in which a victim is cooperating in the
prosecution of the perpetrator, statements
made to the examiner for the purpose of
medical diagnosis and treatment may still
be excluded as hearsay if it is established
that the examiner is acting as an arm of law
enforcement rather than acting primarily as
a medical treatment provider.
Defense counsel in their representation
of defendants must be aware of the forensic
components of a SANE examination, and the
attempt to separate the medical evaluation from
a forensic evaluation to gather evidence for future
prosecution. If the SANE is part of a SART team
then linking the SANE to law enforcement could
limit the admissibility of the victim's statements to
the SANE. The case law regarding the admissibility
of those statements is contradictory between the
different jurisdictions.

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For The Defense

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For the Defense - Vol. 4, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3
