Analysis of Medical Reports in False Allegation Cases

When dealing with the medical aspect of any false allegation case, there are several issues that are extremely important to understand and follow-up on. Obviously, if a child claims that they were forced to perform acts of "oral" sex, there usually is no medical evidence to support the charge, one way or the other. If, however, their allegation is penetration of the vagina and/or rectum, normally, the investigating officer, detective or prosecutor usually and immediately sends the child to a hospital for a "rape kit," or rape examination. In order for the examination to be beneficial to anyone, defense or prosecution, depending on the results, it must be conducted as soon after the alleged incident as possible. If not, there would be no fluid evidence, such as the presence of semen and no manner of determining "when" or "how" certain scaring or tearing actually took place. If a child claimed that they had just been molested, that the accused put his penis into her vagina and that when he finished, she had "white stuff" between her legs and then a subsequent examination at an emergency room determined no presence of semen, that would certainly benefit the defense.

The emergency room doctor will normally have no problem in determining if the child's hymen is intact or not. If a child claims that the accused repeatedly and on numerous occasions, put his "large" penis inside her vagina and the hospital examination determined that her hymen was intact, that would certainly benefit the defense. Regardless of what some idiot "prosecution expert" later claims, a hymen does not grow back. Also, keep in mind that I used the example of a "large" penis. An intact hymen is not "proof" that there was no penetration. Penetration could have been with a "small" finger, of even a penis that barely penetrated the "lips" but was not "forced" into the vagina. In many states, penetration, regardless of how slight, constitutes rape and in some, carries an automatic life sentence.

The physician who conducted the "rape" examination could be vital to the defense, yet in many instances, no one even talks to them. They simply accept the medical report at face value. Just suppose that the report does not contain specifics to conversations the doctor had with the child and, further suppose that during the examination, the doctor asked the child if anyone had ever put anything into her vagina and her response was no. If the child's allegation to law enforcement was vaginal penetration, I would say that was extremely important information the defense needed but would never obtain without an interview.

Depending on what the emergency room physician finds, the accuser might be referred, either by the doctor or a member of the "prosecution team" to a facility that specializes in child abuse for further testing. One examination conducted at such a facility, would most probably be done with a colposcopic "camera," a device used for viewing and/or photographing "abnormalities" or injuries to the hymen, vagina, or anus not available to the naked eye. Unfortunately, in many false allegation cases, the colposcopic examination is used improperly as a means of "determining" sexual abuse.

In a great many cases, these colposcopic examinations are conducted by a "nurse practitioner" and not a medical doctor. Certainly no problem there, if they have been properly trained in the use of the equipment, but in some cases, that "nurse practitioner" actually interprets the results, provides a "medical" opinion and in many cases, they are wrong. This would be absolutely no different than an x-ray technician taking an x-ray and then providing a "medical" opinion of the results. Although trained in how to operate the equipment, they are not "medical doctors" and have no right or authority to interpret the results.

Regarding the colposcopic examination, there is no "acceptance" by the scientific community as to an interpretation of the results. There simply has not been enough data gathered to properly interpret what "irregularities" are natural or from birth, and what "irregularities" might have been caused by sexual abuse. In fact, because there is no conclusive information specific to normal or abnormal changes in the shape of the hymen, no doctor should be allowed to testify that to a degree of medical certainty, variations in hymen, determined through a colposcopic examination, is proof that a child was sexually abused.

Tearing or "scarring" of the hymen "is not evidence" of sexual abuse. There are literally a thousand ways in which a young girl could injure her hymen, including a hard bump on a bicycle seat or a fall.

When dealing with any medicals, the most important thing is to carefully analyze all the findings in all reports and then weigh those findings carefully against the allegations. These medical reports and follow-up interviews can provide a wealth of information vital to the defense, but in so many cases, this avenue is missed entirely. The defense attorney simply reads the report and then sticks it in a file.

Doctors called upon to perform forensic sexual abuse examinations should have up-to-date information as to what is normal for non-abused children. They should be very cautious on how they interpret their findings, and insure that they have an valid basis for their claims.
A medical examination, specific to looking for physical evidence of abuse will be eagerly sought by the prosecution, as physical findings represent relatively "hard" evidence compared to psychological assessment and "disclosure" interview findings. Also, the courts will generally give considerable weight to a physician testifying in support of an abuse allegation.
The majority of sexual abuse cases involve activities such as genital fondling and not penetration of the vagina or anus, and do not cause any marks or damage to the tissues. A diagnosis of sexual abuse is therefore infrequently made solely on medical findings. Obviously, sexual activity can be proved if an underage pregnancy has occurred, or if a sexually transmitted disease is detected, but these are relatively rare events. Finding semen on the genital area also indicates sexual contact, but this is only possible if the child is examined soon after the alleged event, within 72 hours at the outside. In reality, the vast majority of alleged abuse cases are disclosed weeks, months or years later.
If a young child does have the vagina or anus penetrated by fingers or a penis, bruising, tearing and bleeding are likely. It seems probable that the child would also suffer considerable discomfort for the next couple of days, especially when urinating or having a bowel movement. Anal penetration, by the penis, normally results in severe pain when the child next attempts to have a bowel movement, but keep in mind that the perineal region has a good blood supply, and usually heals rapidly.
Whether such injuries cause permanent scars detectable months or years later is currently being researched. A prior study was conducted of three children who had suffered genital lacerations from a single isolated episode of assault, one requiring suturing. They used a camera and colposcope to record their findings and followed up the appearance of the injuries for up to three years. They found that in these cases, there was very little scar formation and signs of damage were difficult to detect after a couple of months.
Children who have been sexually abused on an ongoing basis may well show more obvious signs of trauma. The vaginal and anal orifices might remain more open and show signs of scarring, although research evidence in this area is still sparse.
Children's genital regions have not been routinely examined in medical examinations, and until the last decade virtually nothing was written on what normal vaginas and anuses looked like in childhood. In 1983, a study was completed where the hymens of nearly 250 girls under 13 years of age who were treated at a Crisis Care Unit in Denver were measured and examined. The initial report stated that 75% of those with horizontal openings greater than 4mm had been sexually abused. Four years later that was amended to 80%. That study is often quoted by medical experts in courtrooms and in the absence of any other studies, a horizontal hymen size greater than 4mm has been considered an indicator of sexual abuse. Examination of this study reveals that it is seriously flawed. First, the method of substantiating abuse was not made clear, and it appears to have included a number of girls who denied that they were victims. Second, measuring hymenal size is not a simple procedure, and different examiners are likely to get different results. To establish the diameter, a child's legs must be spread at the hips and the vaginal lips gently parted to expose the hymen. Varying the amount of lateral pressure used to part the lips will distort the shape of the hymen and change the apparent diameter. In addition, the method used for examination, supine with labial separation, supine with labial traction, or knee-chest, affects the measurement of the hymenal orifice diameter.
Hymenal shape is very variable. Some have several openings, they may be crescent-shaped, slit-shaped (horizontal or vertical), or very irregular. The hymen might be thick and fleshy or a very thin membrane. Not only is measurement impossible with any degree of accuracy, the British Medical Journal reported in 1989 that "the hymen can vary, in the same child, from a pinhole to a centimeter, depending on whether she is relaxed or apprehensive, warm or cold." A medical finding of a dilated hymenal opening must therefore be interpreted with great caution.
The diameter of an average index or middle finger is about 15 to 20mm. An erect penis is 25 to 40mm in diameter. The hymen is not a very elastic tissue, but even allowing for some stretching, the belief that any hymenal diameter greater than 4mm is an indicator of abuse is not commonsense. The Royal College of Physicians (1991) states that a hymenal diameter of 15mm is supportive of abuse, although it should not be used as the sole basis for a diagnosis.
Examining doctors often claim that rashes and redness around the vaginal area are "consistent with sexual abuse." While this may be technically true, there are so many other common causes of such findings that such a claim is likely to mislead a court into believing these findings mean sexual abuse has probably occurred. In fact, such genital irritation is also consistent with no sexual abuse. Scratching, masturbating, inadequate washing, irritating soaps and bubble baths, tight-fitting underpants, threadworm, thrush and other non-sexually transmitted infections can all result in redness and irritation. So can a number of less common causes such as foreign bodies inserted in the vagina.
Medical testimony regarding physical indications of sexual abuse is critical. Testimony that physical findings, indicative of sexual abuse, exist in the alleged victim is very powerful and cannot be underestimated by the defense. To the fact finder, physical evidence is "real" evidence. While there may be reluctance to find abuse based upon statements alone, there is none when there is corroborative physical evidence.
Generally, there are only two questions for the trier of fact to consider:
- Was the child sexually abused?
- Who did it?
If there is medical testimony asserting physical evidence of abuse, it is just a short step to a finding of abuse if the child is naming the defendant as the abuser. Also, in alleged interfamily abuse, corroborative physical findings make it much more likely that criminal charges will be brought. Prosecutors often feel that physical evidence is needed to meet the "beyond a reasonable doubt" burden required for criminal conviction. Without such evidence they are much more likely to allow the case to be handled in family or juvenile court where a "preponderance of the evidence" standard applies.
It is also important to be prepared for the unusual circumstances that sometimes surround medical testimony in sex abuse cases. Ideally, doctors come to court in order to give unbiased, accurate information as an aid to the fact finder. Unfortunately, in the area of child abuse, too often the doctor acts as an advocate when delivering an opinion. Doctors will sometimes testify that certain findings are indicative of abuse even though the doctor well knows, or should know, that they are not. In the absence of an informed defense attorney, such evidence is very persuasive and, if the doctor is the only one testifying on the issue, the testimony is likely to be conclusive on the question of whether or not abuse occurred.
In order to deal effectively with medical testimony, the defense lawyer must be aware of the research on what is and is not indicative of abuse. They must be aware of the importance of normality and the role of normative studies in medicine.
A thorough and searching cross-examination is the best tool for truth seeking, and each and every aspect of the medical evaluation should be carefully analyzed for cross-examination purposes. The attorney must understand that physicians are not trained as scientists. The practice of medicine is an art, not a science, although physicians may be consumers of science. Physicians are often unsophisticated and unskilled in dealing with statistics. Even though medical testimony is often given considerable weight by fact finders, the attorney must make it clear that physicians' expertise is limited and quite narrow.
Do not overlook a complete evaluation of the testifying doctors. Obtain current CVs. Do a complete library search and obtain copies of anything they have written. If you can, find out where and from whom they learned about physical examinations for sexual abuse, who they consider authoritative on the subject and then obtain, read, and understand everything that the doctor, their teachers, or their own recognized authorities have written. In the zeal of advocating their position it is not unusual for doctors to contradict their own printed statements and you must be prepared to take advantage.
Usually, doctors will be asked if they have an opinion within a reasonable degree of medical certainty as to whether or not the examination did or did not indicate sexual abuse. Here, on cross-examination you must be very probing. Usually, it turns out that the opinion is based on the totality of the exam which includes an interview of the child or a history from a caretaker. If the history taken indicates abuse, it becomes part of the basis upon which the opinion is formed and this can improperly bias testimony. Doctors are seldom experts in interviewing, and often admit on cross-examination that they assume the truth of what the patient tells them. The testimony is presented as if the doctor's opinion is based on physical findings when it is not. It is often largely or wholly based on statements made, a far different basis than objective findings upon examination.
The attorney must sort out all data which contribute to the doctor's opinion and focus on the objective physical findings which the doctor claims are indicative of abuse. In many cases, findings in false allegation cases have never been indicative of abuse when examined closely. Instead, they consist of such nonspecific findings as thickened areas of the hymenal edge, vascular changes, nonspecific discharges, irregular hymenal edges, hymenal openings in excess of 4 mm, etc., which are all also found in large numbers of non-abused children.
Often an examination will be said to be "consistent with" abuse. Be very careful of such a statement. The phrase "consistent with" should be probed with vigor. If physicians make statements embodying the concepts of "consistent with" or "typical of" they have exceeded their area of competence. A normal exam is "consistent with" abuse since most sexual abuse leaves no physical findings. I have seen reports which indicate "normal exam, consistent with abuse based on history." Most exams are also "consistent with" non-abuse. The key here is to distinguish between "consistent with" and "indicative of." Certain findings, such as a hymenal tear, healed scars, and the presence of sperm are strongly suspicious for abuse. Most of the findings said to be "consistent with" abuse are, in fact, non-specific findings which occur in non-abused children as well as abused children. This must be made clear on cross-examination. Sometimes the doctor will go to absurd lengths to maintain the "consistent with" argument and getting what seems a perfectly straight-forward admission can be very difficult.
Every note, mark, drawing, and measurement in the doctor's records must be rigorously checked and re-checked. Fundamental errors are made so to avoid this, if the hymen was measured, determine exactly how was it measured; by eye, ruler, colposcope scale, etc.
Without fail, if a physical examination was performed, interview the doctor prior to trial. In one of our cases, a young girl was examined at a regional hospital emergency room, following her disclosure of abuse by her step-father. We examined the medical report and found that there was no indication of scaring or tearing. Later, I interviewed a woman who had been present during the examination. She told me the girl told the doctor that she had never been penetrated in either her vagina or rectum by anyone. That presented a problem because the girl was alleging penetration and there was no note on the medical report regarding the girl's denial. I contacted the doctor and informed him as to what I had been told. He said he did not recall, but if the girl had denied penetration, that was not something that he would have included in his report. He did say that he telephoned a police officer and advised him as to everything that had taken place and that, if the girl had made such a statement, he would have told the officer. I contacted the officer, since we had nothing in discovery specific to the denial, and the officer said he did not ever recall talking to the doctor and had no written report about the call. Amazingly, here was a physician who was told by the accusing child that she had never been penetrated, she was making allegations of penetration, yet he did not think it was important enough to include in his report and has no memory of the conversation.

Medical testimony that a defense attorney is not properly prepared to cross-examine can easily put the accused straight in prison. The key is preparation.