Monday, August 13, 2012

Editor's Question: Consent for Rape Kit in Unconscious Victim

During my blog tour for Proof I had an interesting question from fiction editor, Ramona Richards, in the comments section of the blog on this post that dealt with collecting a rape kit.

Ramona: If a sexual assault victim is stable but unconscious-- will the medical team do a rape kit and if so-- who do they get consent from?

Jordyn: This is an interesting question on many levels. As a nurse, I'm first an advocate for the patient but also as a nurse and woman-- I want to see justice happen for this woman as a victim.

The central issue is that part of the rape kit is very invasive. Particularly the pulling of the hair from the head and groin area and well as the internal pelvic exam.

No one wants to put a victim through something more traumatizing-- so generally-- permission must be given by the victim in order for the exam to be done.

But say-- the victim looks like she is not going to wake up to give that permission?

Part of the exam can be done. External evidence and swabs can be collected. An external exam of the vaginal area could also be done. Pictures can be taken.

Likely-- we'll wait to see if the patient wakes up. Nothing should be disturbing the internal presence of the evidence if the patient is hospitalized. Exams should be done within 72 hours and one nurse practitioner I work with said semen could be preserved on the cervix for 10 days.

But what if it looks like the victim is never going to wake up?

Then it becomes an issue for the courts. They would have to issue an order for the exam to be done. So either the victim has to give permission (and no-- not next of kin)-- or the court would order the exam to be done.


  1. I saw your interview on Heather D Gilbert's blog and had to hop on over. This is fascinating (and sad) but wow...never thought of that.

  2. Jordyn - great info. Fascinating how far we've come and I love how your novel expounds on this kind of technology.

    Interesting thought: A rapist can "invade" without consent but is innocent until proven guilty in court. A health care provider must NOT "invade" without consent because they could be found guilty of vile acts in court. So many shades of right and wrong - see how far we've come.

  3. Thanks for this info! I appreciate you answering it...and here's a follow-up, which may need a legal opinion. IF for some reason the courts say NO to an internal exam, yet all external evidence points to a single suspect, can he still be convicted of forcible rape? Is proof of penetration necessary for that conviction?

    I'm sometimes amazed at how one question leads to another, then another.

  4. Jessica: Thanks so much for stopping by Redwood's and leaving your comment!

    Becky: You're right-- that is a very interesting what you pointed out.

    Ramona: What I would say is "yes" because you can see traumatic injury to some of the external structures without doing a pelvic exam but I'm not sure why the courts would say "no" unless it was out of the family's wishes to not further traumatize the victim-- still assuming you're talking about the one who is unconscious.

    Running it by a laywerly type may not be a bad idea. And-- forgive any typos because I just got done working two 12 hour shifts and my mind may not be as clear as I think!!

    Thanks all...