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PHYSICAL EXAMINATION: Evidence CollectionThe New York State Department of Health and the American Academy of Pediatrics recommend the collection of forensic evidence when there is suspicion of a sexual abuse incident within 96 hours of the examination. In recent studies, most forensic evidence has been found on linens or clothing within 24 hours. It is rare to find evidence on a prepubertal child. In all cases, weigh the benefit of collecting specimens based on the likelihood of a positive finding against the possible discomfort of the victim. Factors affecting the likelihood of identifying forensic evidence include time since the incident, bathing, age of the victim, and type of contact. In some cases, it may be appropriate to collect only parts of the kit. If a part of the kit is not utilized, its omission must be explained, such as "prepubertal, no pubic hair" or "patient refused." Preparation 
Most hospital emergency departments already stock the evidence collection kits. The New York State Division of Criminal Justice Services (DCJS) provides hospitals and other health care providers with sexual offense evidence collection kits and drug facilitated sexual assault evidence collection kits. For information on obtaining the kits, forms or training, contact the Office of Forensic Services at kits@dcjs.ny.gov or 518-457-1901. The kits include written instructions that must be reviewed prior to collecting evidentiary material.
Consent
As a general principle, collection of sexual offense evidence should not and cannot be undertaken in the absence of parental consent or the voluntary and knowing consent of an older minor unless a court order is obtained by the appropriate authorities. Consent to medical treatment by a minor does not constitute consent to the collection of sexual offense evidence when the collection of such evidence involves procedures other than those performed solely for medical reasons. Child Protective Services guidelines provide that the refusal to consent to the collection of sexual offense evidence by an older minor is to be honored assuming that the minor appears capable of understanding the nature and consequences of evidence collection. In no case should a child/adolescent be forced to have forensic evidence collected.
Preserving the Integrity of Evidence
In order to prevent the loss of hairs, fibers, or other trace evidence, clothing and evidence must be sealed in separate paper bags or cardboard containers, one item per bag. Do not use plastic containers because moisture remaining in the items will be sealed in, making it possible for bacteria to quickly destroy biological fluid evidence. All swabs should be dried and then placed in a cardboard tube included in the kit. If no tube is available, dry the cotton swab and place it in an envelope or paper bag that is labeled and sealed. Be sure to indicate on the label the source of the specimen.
Each item of evidence must be labeled with the date, a description and source of the specimen, the name of the medical provider, the name of the patient, and the initials of everyone who handles it. Label and number all of the bags and containers to ensure all items of evidence are transferred to the crime laboratory with the kit. Indicate on the outside of the kit the number of additional bags collected. Label evidence not included in the kit (e.g., clothing, photographs) with a description of the item, date, and who collected it. Label bags 1 of 1, 1 of 2, etc., depending on the number of items collected. Document this additional evidence in the medical record.
In order to maintain the chain of custody, an evidence collection kit and the specimens it contains must be accounted for from the moment of collection until the moment it is introduced into court as evidence. Under no circumstances should a victim, parent, guardian, support person, or CPS caseworker be allowed to handle or transport evidence after it has been collected. Each healthcare facility must have a procedure for protecting the chain of custody of evidence. A law enforcement official should transfer physical evidence from the healthcare facility to crime laboratory for analysis. Document the transfer of this physical evidence in the medical record.
Swabs and Smears
The purpose of making smears is to allow microscopic forensic analysis of the specimen to test for the presence of semen. An ultraviolet light may be helpful to scan the body and clothing to locate signs of semen, which fluoresces blue-green. The number of tests crime laboratories can perform is limited by the quantity of semen or other fluids collected. Therefore, whenever possible, use two swabs when collecting specimens from body orifices and surface sites.
Depending upon the type of sexual offense, semen may be detected in the mouth, vagina, or rectum. However, embarrassment, fear, trauma, or lack of understanding of the nature of the offense may cause a victim to be vague or mistaken about the type of sexual contact. For these reasons, and because there can be leakage of semen from the vagina or penis onto the anus, encourage the child/adolescent to allow examination of all three orifices and have specimens collected from them.
If the child/adolescent must use the bathroom prior to the collection of the specimens, caution him/her that semen or other evidence may be present in the pubic, genital, and rectal areas and to take special care not to wash or wipe away that evidence. Likewise, discourage him/her from rinsing the mouth or drinking until after the oral swabs have been obtained.
Bite Mark Evidence Collection
Gather bite mark evidence after obtaining consent for evidence collection from the patient and parents and/or the legally responsible caregivers or authorities.
Photograph the bite mark using the photography techniques suggested in DOCUMENTATION: Taking Good Photographs. Note whether the bite mark has been affected by washing, contamination, or change of position.
Whenever possible, collect salivary trace evidence as guided by the patient history. This includes areas that the perpetrator may have had oral contact or other areas of dried secretions. Use the double-swab technique to collect the saliva:
Evaluating for Drug Facilitated Sexual Assault
If the victim's history or symptoms indicate the possibility that drugs were used to facilitate the assault, and it is within 96 hours of the possible ingestion, collect evidence for the NYS Drug Facilitated Sexual Assault Kit. History or symptoms may include memory loss or lapse, disheveled or missing clothing, dizziness, or intoxication that is disproportionate to the amount of alcohol reportedly ingested. The kit includes two gray-top blood tubes, and a sterile urine specimen container. A consent form should be completed, which is included in the kit. For further information, see these web sites:
http://www.criminaljustice.ny.gov/ofpa/evidencekit.htm and http://criminaljustice.ny.gov/ofpa/pdfdocs/dfsaalertsheet.pdf (PDF) Release of Evidence
When all evidence specimens have been collected, properly label and seal them and place them into the rape kit. Label all unused parts of the kit with "specimen not collected" and return them to the kit with an explanation of why the specimens were not collected.
Prior to sealing the kit with evidence tape, complete all required information on the top of the kit, including the number of additional bags/containers. Store the completed kit and clothing bags in a secure, refrigerated area. Public Health Law ~2805-i(3) requires hospitals to collect, store, and maintain the chain of custody of sexual offense evidence for a period not less than 30 days.
Evidence may not be released from a healthcare facility without the written authorization and consent of the informed mature minor or authorized third party if the patient is unable to understand or execute the release. An Authorization for Release of Information and Evidence Form should be completed. In addition to obtaining the signature of the patient or authorized third party on this form, signatures must be obtained from the healthcare facility staff person turning over the evidence and the law enforcement representative who picks up the evidence. The original copy of the release form must be kept at the healthcare facility and a copy must be given to the law enforcement representative.
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