The role of forensic medical evidence in the prosecution of adult sexual assault


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Content type
Practice guide

July 2013



Obtaining forensic medical evidence from victim/survivors is often a central part of investigative and case-building efforts in sexual assault prosecution. Developments in the collection, analysis and interpretation of forensic medical evidence have significantly expanded the role and influence of such evidence in the criminal justice system. Despite the expectation that forensic medical evidence will have some role to play in a case progressing through the justice system, it is not clear how this type of evidence results in actual convictions, either via a plea, or finding of guilt at trial.

On the basis on the available evidence, this paper considers whether forensic medical evidence is associated with positive legal outcomes and the role of forensic medical evidence at key decision points in the justice process. Although the progression of cases may be enabled by forensic evidence, the legal requirements to prove the offence of rape and the customs of an adversarial justice system can undermine the probative value of forensic medical evidence in many contested cases (i.e., those that go to trial).

Key messages

  • National and international research presents a mixed picture of the association between forensic medical evidence and legal outcomes. Overall, forensic medical evidence was just as often associated with a positive legal outcome as not.

  • The research on how forensic medical evidence is used in legal decision-making suggests that criminal justice actors - police, prosecutors, juries - use forensic evidence in a variety of ways to achieve justice and organisational outcomes, including to make assessments about the "strength" of sexual assault cases and possibility of a conviction.

  • Little research specifically examines the role of forensic medical evidence in sexual assault trial settings. Given current debates about the interface between law and science, and ongoing debate about improving criminal justice outcomes for sexual assault matters, particularly where consent is the contested issue, this is a significant gap.

  • This paper presents several implications for sexual assault prosecution, including:

    • whether there are mismatched expectations among the different criminal justice actors about forensic medical evidence;
    • whether there is an over-reliance on forensic medical evidence by investigators and prosecutors at the expense of other forms evidence; and
    • whether the availability of forensic medical evidence is a threshold issue for progressing with a case.


Using forensic medical evidence in the prosecution of sexual assault encompasses two overlapping, though distinct, concerns. The first relates to the provision of forensic medical care for victim/survivors of sexual assault. The focus here is on what constitutes best practice in terms of forensic science, the medical and psycho-social needs of victim/survivors, and the service and workforce models that best balance these imperatives. The second concern relates to the use of forensic medical evidence in the legal system and its role as a form of legal - rather than scientific - evidence. This Issues Paper focuses on the latter. Specifically, it examines whether - and how - forensic medical evidence impacts on legal outcome in cases of adult sexual assault (such as charge, prosecution, or conviction).

In this paper, we review the national and international research1 on the role of forensic medical evidence in positive legal outcomes for sexual offences, such as the prosecution's decision to proceed, a plea, progression to trial, or a guilty verdict. We do this in two ways:

  • reviewing the empirical studies that have sought to demonstrate an association between the presence of forensic medical evidence and specific types of legal outcome; and
  • synthesising the research that explores the role of forensic medical evidence for criminal justice practitioners at key points in the sexual assault prosecution journey (i.e., investigation, prosecution, trial, and conviction).

In bringing this literature together, it is clear that the use of forensic evidence in the criminal justice system raises complex questions about its collection, its impact on legal outcomes, and its interpretation by forensic specialists, judges, and juries. In recent times, the types of evidence available have expanded (e.g., biometric evidence such as DNA) and the analysis has become more sophisticated. According to some research, there is a growing expectation held by victims, legal actors and juries that forensic medical evidence will (a) be available and (b) yield the "truth" about what happened in criminal events (Julian et al., 2011).

Despite the growing expectations of forensic evidence, the empirical research is not clear whether forensic medical evidence per se has a definitive role in, or association with, positive legal outcomes for sexual offence matters. In addition, reviews and commentary suggest a disjunction between the expectations of forensic medical evidence on legal outcomes on the one hand, and what is required to prove adult sexual offences within an adversarial justice system on the other. This disjunction raises challenging questions, particularly in relation to:

  • barriers to case progression - that is, whether the availability of forensic medical evidence is a threshold issue for sexual assault matters to proceed; and
  • what "counts" as evidence - whether there is a dependency on forensic medical evidence by investigators and prosecutors to signal "a strong case" at the expense of other forms evidence.

These two issues need to be carefully considered and discussed, as they have broader implications for the kinds of sexual assault cases that do or do not progress through the justice system.

Following a brief description of key terms, this paper is divided into three sections. The first synthesises the available findings on whether forensic medical evidence is associated with positive legal outcomes in sexual assault prosecution. The second section focuses on how forensic medical evidence is used by legal actors in decision-making at various points of the justice process (e.g., investigation, presecution, adjudication). The final substantive section shifts focus from forensic evidence to the legal context - legislation, procedure, and the rules of evidence - in which it is used. Here we focus specifically on proving the sexual assault offence within the adversarial justice process.

1 We searched in several key domains including legal scholarship; criminology; forensic science; medicine and social work. The types of research evidence collected included evaluations, meta-reviews, research studies, systems reviews, and commentary and analysis.

Key terms

Key terms

Forensic medical evidence

In this paper "forensic medical evidence" or "forensic evidence" refers to the samples, specimens, records of injuries and emotional states of sexual assault victims (and sometimes offenders) collected, documented and analysed by a forensic medical practitioner.2 This typically includes:

  • body fluids (e.g., blood, urine, semen);
  • fibres and foreign debris (e.g., hair, fingernail scrapings, soil);
  • injury to the anus and/or genitals (ano-genital injury) or to other parts of the body (extra-genital injury);
  • clothing; and
  • emotional presentation.

Such samples are used to establish recent sexual activity; identify or exclude suspects; prove or exclude a link between suspects and places or objects; establish the use of force or resistance and nature of injuries; and provide evidence of incapacitation due to alcohol or drug consumption (Du Mont & White, 2007). This paper is not intended to include an exhaustive coverage of all types of forensic evidence (e.g., firearms residue, fingerprints, handwriting, tool marks, impressions) and it is acknowledged that there may be omissions, or forms of forensic evidence to which the issues raised in this paper may not pertain.

These samples, specimens and observations are documented in the medical forensic examination. The primary purpose of these examinations is the care and welfare of the victim (Williams, 2004; World Health Organization [WHO], 2003). A second purpose is the collection and documentation of samples that may assist criminal prosecution (US Department of Justice, 2004).

Table 1: Types of forensic evidence
Type of evidenceExamplesAnalysisPurpose

Body fluids

BloodToxicologyDetermine levels of substance consumption
Semen and salivaDNAIdentify suspect; link suspect to victim and/or crime scene; indicate sexual activity; indicate penetration
UrineToxicologyDetermine levels of substance consumption

Fibres and foreign debris

Hair and pubic hairDNAIdentify suspect; link suspect to victim and/or crime scene
Fingernail scrapingsDNAIdentify suspect; link suspect to victim and/or crime scene; may indicate resistance
Clothing fibres, soil, carpetMicroscope visualisation, composition analysisLink suspect to victim and/or crime scene; clothing may indicate use of force
Extra-genital injuryBruising, abrasions, lacerations, bite marksVisualisation, documentation & interpretationMay indicate use of force; may indicate resistance
Ano-genitalTears, ecchymosis,* abrasions, rednessObservation, documentation & interpretationMay indicate use of force; may indicate penetration

* This refers to the flat area of haemorrhage under the skin that occurs after a blunt force injury that causes bleeding but does not break the skin (i.e., a bruise) that can occur both in the skin as well as in a mucous membrane.

Source: Adapted from Du Mont & White (2007) and Edwards & Gotsonis (2009)

Sexual assault

In this paper "sexual assault" refers to acts that reflect legal definitions. Although there is variation across states and territories in Australia, definitions of adult sexual assault or rape refer to penetration of the vagina or anus, or penetration of the mouth by the penis in circumstances where the person was not consenting (Fileborn, 2011). We recognise that legal definitions are quite narrow and exclude behaviours and acts that are elsewhere defined as sexual assault (e.g., in prevalence surveys such as the Personal Safety Survey (Australian Bureau of Statistics, 2006). However the purpose of this paper is to examine the role of forensic evidence in the legal response to sexual assault as defined in criminal statutes in Australia (See Fileborn (2011) for information on current sexual assault legislation).

Positive and negative legal outcomes

The criminal justice process involves many steps, for example: investigation; the decision to charge and the nature of the charge; prosecutorial screening of cases and their charges; subsequent decisions to proceed or not, or withdraw charges; the jury's verdict; the sentencing judgement; and the decision to appeal. Research studies vary in how they have defined "positive legal outcome", with some studies restricting it to laying charges, while other studies used obtaining a conviction as the measure.3 For the purposes of this paper, "positive legal outcome" or "positive case outcome" is used to refer to a sexual assault complaint progressing to the next stage of the criminal justice system. For example, if a case progressed from an initial report to police to the case being prosecuted, this would be considered a positive case outcome. Conversely, a negative case outcome would occur when a case is filtered out of the criminal justice system (also referred to as attrition). Therefore there are numerous points at which forensic medical evidence can have an impact on legal outcome, such as: the outcome of police investigation, the decision to prosecute, the selection of charges that will be prosecuted, the decision to accept a plea, proceeding to trial, and the outcome at trial.

2 A range of medical personnel collect forensic specimens including general practitioners, specialist forensic doctors and specialist forensic nurses.

3 It is also important to note that some terms such as "charge-filing" (a US term) are not commensurate with Australian jurisdictions, as there are differences in the role of and relationship between police and prosecutors in each country. Australian jurisdictions (following the UK) maintain an emphatic separation between the investigative arm and the prosecutorial arm of the criminal law. "Charges filed" refers to the charges that have been brought by the District Attorney's (i.e., prosecutors" office). Unlike Australian jurisdictions, District Attorney's" offices will work closely with the arresting officers in reviewing the facts and deciding what, if any, charges will be filed against a person.

The impact of forensic medical evidence on outcomes in sexual assault prosecution

The impact of forensic medical evidence on outcomes in sexual assault prosecution

A key question in this paper is whether forensic evidence is associated with positive legal outcomes. Findings from relevant studies are summarised below. It is important keep in mind that the robustness and generalisability of these findings are affected by methodological limitations, which we discuss in a later section.

Association between forensic evidence and legal outcome

Forensic medical evidence and its role in positive legal outcomes

In this section we describe the findings of studies that specifically examined whether the availability of forensic medical evidence was associated with positive legal outcomes. The findings of these studies are summarised in Table 2.

Table 2: The association between forensic evidence and legal outcome - study findings
(Studies that specifically examined the relationship between forensic evidence and legal outcome)
StudyDetailsKey findings
Du Mont & White (2007)


Meta-analysis of studies published between 1985-2004 that specifically examined the association between forensic evidence and legal outcome.

Only those studies that based their results on total number of cases reported to police were included, resulting in a total of 13 studies.

All but one study included general physical injury.

  • 6/12 studies found a significant association between general physical injury and legal outcome. Specifically:
    • physical trauma and conviction (n = 1)
    • severe violence or injury and conviction (n = 3)
    • moderate or severe injury and laying charges (n = 1)
    • mild to severe injury and laying charges (n = 1)
  • 2/13 studies found a significant association between ano-genital trauma and laying of charges. None found an association between this type of evidence and successful prosecution.

Conclusion: Factors other than the availability of medico-legal evidence are found to be influential in shaping legal outcomes such as victim credibility or the characteristics of the assault.

Johnson et al. (2012)
(see also Peterson et al., 2010)

United States

602 incidents of rape randomly selected from police data.

Analysis of sexual assault part of a larger study.

Prospective design.

  • Forensic evidence was gathered in 64% of incidents, of which half (54%) was biological.
  • Less than a third of sexual assault kits were analysed in laboratories
  • Forensic predictors of legal outcome:
    • Crime scene evidence and lab analysis both predictive of arrest (but only 1.6% of evidence was analysed prior to arrest)
    • No association with referral to prosecutor
    • Lab examined evidence and medical treatment associated with charging (suggested as proxy measure for injury)
    • Forensic evidence not significantly associated with conviction

Conclusion: The probative value of forensic evidence is inextricably linked to the circumstances of the assault (e.g., victim-offender relationship; offender tactics; location found)

Hagemann et al. (2011)


Police files of 185 female victims. Forensic medical files were available for 101.
  • General physical injury documented in 49%; most were categorised as "minor"
  • Ano-genital injury was documented in 14 cases
  • Trace evidence was analysed in one-third of cases

Conclusion: Prosecution was common in cases with a forensic examination but this association was not statistically significant.

Jewkes et al. (2009)

South Africa

1,547 cases with a medical examination. Included both child (596) and adult (951) victims.
  • DNA evidence rarely available
    • No statically significant association between presence of injuries and suspect arrest
    • Injuries were not associated with progression to trial
  • Non-genital or ano-genital injury or both was strongly associated with conviction

Conclusion: In a context of strained resources and system inefficiencies DNA should not be a priority in rape investigation. General and genital injury may be useful in court to corroborated victims" testimony.

Campbell et al. (2009)

United States

Sample drawn from the Sexual Assault Nurse Examiner program. A total of 137 cases met the criteria.
  • Time between assault and medical examination inversely related to case progression; cases exceeding 20 hours to examination were less than half as likely to progress
  • Case progression was associated with:
  • DNA evidence; and
  • ano-genital or physical redness
  • Other types of forensic evidence (abrasions, tears, bruises, foreign matter) were not associated with case progression (partly attributed to the low rates documented)

Conclusion: Controlling for victim and assault characteristics, forensic medical evidence was still able to predict significant variance in case progression

Ingemann-Hansen et al. (2008)


307 cases of sexual assault reported to police. Legal outcome known for 277.

216 (70%) had a forensic examination

  • 78% of victims had injuries, the majority being physical injury
  • No forensic findings were associated with conviction, however use of severe coercion (strangulation, use of weapons) by the assailant was the only determinant associated with conviction (after adjustment)

Conclusion: Forensic medical evidence is of low sensitivity in relation to sexual assault and cannot by itself reveal whether the complaint is a criminal offence.

The Uses and Impacts of Medico-Legal Evidence in Sexual Assault Cases: A Global Review (Du Mont & White, 2007) examined the relationship between forensic medical evidence and legal outcome. The review involved extensive literature reviews to locate relevant studies. These were drawn from electronic databases, government and non-government organisation websites, and through key researchers and leading academics. Findings related to the purpose of medico-legal evidence, its impact on legal outcome, and the socio-cultural factors influencing its use were covered in the report.

Du Mont and White (2007) located 13 studies that specifically analysed the presence of forensic medical evidence and legal outcome. Most were based in the US or Canada. The studies had different definitions of "legal outcome". Most included conviction within this definition, however a few defined it as "charges filed" and "trial/no trial". They also recorded different types of forensic evidence:

  • Two of 13 studies examined all four categories of forensic evidence (general injury; ano-genital injury; biological samples; and emotional presentation);
  • Eight of 13 studies examined three categories (general injury; ano-genital injury; and biological samples);
  • Two studies examined two categories (general injury and biological samples; and general injury and genital injury); and
  • One study examined only the impact of genital injury on legal outcome.

Notably, none of these studies were conducted in Australia.

In relation to general physical injuries the review found that six of the 12 studies that included general injury demonstrated a significant association between victim injury and a positive legal outcome, specifically:

  • three studies demonstrated a significant association between severe violence or injury and conviction;
  • two showed an association between mild to severe injury and laying charges; and
  • one study demonstrated an association between physical trauma (abrasions, contusions, lacerations, ligature, burn and bite marks) and laying charges.

In relation to ano-genital injury, only two studies found a positive association. In both studies, the documentation of ano-genital injury was associated with the filing of charges. Interestingly, no study included in the review found a positive relationship between legal outcome and the presence of sperm, semen or saliva samples, indicating that the availability of this type of forensic evidence is not obligatory for a case to successfully proceed through the justice system or to obtain a conviction. Indeed, some studies concluded that on its own "medico-legal evidence appears to be of minimal importance to the courts" (Du Mont & White 2007, p. 28).

More recent research continues to show varied results. Of the studies using a retrospective design, Hagemann, Stene, Myhre, Ormstad, and Schei (2011) found that prosecution was more likely when there was forensic medical evidence available, however this was not a statistically significant association. A South African study found that DNA was rarely available and that forensic evidence of injury (general and ano-genital) was not associated with arrest or progression to prosecution, but was strongly associated with conviction (Jewkes et al., 2009). The authors concluded that such evidence may corroborate the victim's testimony (Jewkes et al., 2009). However, another US study found the inverse - DNA evidence and ano-genital injury (specifically redness) was associated with progression, although its impact on convictions was not clear (Campbell, Patterson, Bybee, & Dworkin, 2009). Finally, Ingemann-Hansen, Brink, Sabroe, Sorensen, and Charles (2008) found that despite three-quarters of their sample having documented general or ano-genital injury, forensic findings were not associated with conviction; however, use of severe coercion tactics by the offender, such as strangulation or use of weapons, was.

We found only one study that used a prospective design to examine the presence, role and impact of forensic evidence on legal outcomes for five serious offence categories, including rape (Johnson, Peterson, Sommers, & Baskin, 2012; Peterson, Sommers, Baskin, & Johnson, 2010). The researchers followed rape cases in five US jurisdictions from the time of police incident report (during 2003) to final court disposition. They aimed to catalogue the kinds of forensic evidence collected at crime scenes and identify which forms of forensic evidence contributed most frequently to successful case outcomes. The sample was comprised of a total of 602 rape incidents. Forensic evidence was available in almost two-thirds (63.8%) of incidents. Biological4 and natural/synthetic materials (e.g., bindings, clothing, carpet) were the most common forms of evidence collected. Overall, a third of incidents had evidence submitted for examination. Of these, 18.6% were examined.5

Initial analysis showed that sexual assault cases with forensic evidence were statistically more likely to end in arrest, charge and conviction. The percentage of arrests referred to the prosecutor was not significantly different in cases with and without forensic evidence. Regardless of whether forensic evidence was present, the authors noted a significant "funnelling effect" of cases as they progressed through the stages of justice system. When the data were analysed to see if forensic evidence predicted outcomes, the authors concluded that it predicted arrest and charge but not conviction. Prosecutors were more likely to file charges when the victim had "suffered real physical harm" and when evidence against the suspect was strong (e.g., victim's willingness to proceed, arrest, and presence of forensic biological evidence). The strongest predictors of conviction were the victim's willingness to proceed with a complaint, direct arrest techniques, and medical treatment of the victim.

Johnson et al. (2012) further observed that a key issue was the prosecutorial screening of cases and the focus on "convictability":

Similar to previous studies, the results of the present project indicate that prosecutors exercise a great deal of discretion and reject a significant percentage of cases at screening … case rejections are motivated primarily by prosecutors' attempts to "avoid uncertainty" … all prosecutors, regardless of jurisdiction, shared a primary concern about case convictability. (pp. 213-214)

Therefore, the initial association between forensic evidence and conviction was more a reflection of prosecutors' rejection of cases that seemed "ambiguous" because of the circumstances of the assault (e.g., victim-offender relationship or offender tactics) rather than a reflection of forensic evidence per se.

For Johnson and colleagues (2012) this pointed to a broader issue - the contrast between what they saw as the "theoretical potential" of forensic evidence and the "empirical realities" of prosecuting sexual assault in which consent is often the point of contestation. Theoretically, forensic evidence may serve the following purposes:

  • functioning as a mechanism to identify or confirm the identity of potential perpetrators and link them to the crime scene6 (see also Haesler, 2006);
  • corroborating the victim's account of a sexual assault in a court of law (see also Haesler, 2006);
  • determining the occurrence of recent sexual activity; and
  • establishing use of force or resistance (Du Mont & White, 2007).

If forensic evidence were capable of serving these functions, it would seem reasonable to conclude that the introduction of forensic evidence at court should strengthen the likelihood of a positive legal outcome (in this case conviction). However, as demonstrated, how effectively forensic evidence serves these functions in practice is uncertain; different studies have come to different conclusions about this. In part, this may have to do with the type of forensic evidence being presented and its purpose in the case. For example, while DNA evidence in particular can function to identify an individual with a (generally) high degree of certainty, and can link an individual to a crime scene, it is not always apparent how an individual's DNA came to be at a crime scene (Haesler, 2006). Likewise, in relation to sexual offences, DNA evidence is unable to reveal anything about the issue of consent, though it can assist in demonstrating that a sexual act occurred. Therefore, DNA and forensic evidence alone is generally not sufficient evidence to base a conviction on, and tends to form one facet of the evidence presented by the prosecution in court (Haesler, 2006).

The disconnect between the "theoretical potential" of forensic evidence and the "empirical reality" of sexual assault prosecution may also be explained by the role of factors other than forensic evidence. These are examined in more detail below.

The role of multiple factors in case progression (including forensic medical evidence)

Du Mont and White (2007) looked at a further 31 studies published between 1978 to 2005 that examined a range of factors (including forensic evidence) and legal outcomes. Table 3 provides a summary of this group of studies published since 2000. The majority (21) were conducted in the US, four in Canada, three in the UK and two in Australia.7 Like the studies that looked only at forensic evidence, these studies show mixed results. Overall, 15 studies did not find a significant association between forensic evidence and positive legal outcome. Two had mixed findings, where some forms of evidence such as physical evidence (e.g., blood, semen, or hair) were associated with positive outcomes compared to other forms of evidence such (e.g., injury evidence). Fourteen studies identified an association between forensic evidence and positive legal outcomes. As stated earlier, "positive legal outcome" is defined in different ways in the research, making it difficult to know just where forensic medical evidence has the most - or the least - impact.

Significantly, Du Mont and White (2007) found that that a range of "other" (i.e., non-forensic/medical) factors, such as those relating to a victim's credibility and status as a "deserving" victim, were much more influential in determining the likelihood of a case progressing through the criminal justice system and obtaining a positive legal outcome in terms of a conviction. Some of the factors identified as having a detrimental impact on case outcome included:

  • victim age and socio-economic status - with older, poorer women less likely to be associated with a positive legal outcome;
  • character and reputation - such as sexual promiscuity, being a sex worker, having a psychiatric history, having a drug abuse problem or criminal record;
  • doing something that could be perceived as having "provoked" the attack through "risk-taking behaviours" - such as hitchhiking or drug/alcohol use;
  • failing to resist either verbally or physically; and
  • not reporting the sexual assault promptly to police.

Conversely, the following factors were more likely to be associated with a positive outcome legally for victims:

  • a suspect having prior charges or convictions;
  • multiple charges or a greater number of charges;
  • an act involving penetration;
  • physical force or verbal coercion;
  • use of weapons; and
  • corroborating testimony of witnesses.
Table 3: Factors associated with positive legal outcomes including forensic medical evidence
(Studies that looked at a range of factors associated with legal outcome including forensic evidence (2000-2005))
StudyDetailsKey findings
Beichner & Spohn (2005, cited in Du Mont & White, 2007)

United States

Case files from Miami and Kansas City for the years 1996-1998 examined.
  • Of 399 cases, charges were laid in 58% of cases. Injury occurred in 30% and physical evidence was available in 55%.

Conclusion: Both the presence of injury to the victim and the availability of physical evidence were related to the decision to fully prosecute.

Lievore (2004)


Examination of prosecutorial decisions for 141 sexual offence cases across 5 Australian jurisdictions referred to DPP between 1999 and 2000.
  • 51% of victims had sustained physical injuries (from mild to severe)
  • 39% of defendants had additional evidence linking them to the offence and corroborating the victim's story.
  • Most common type of evidence was DNA. Other evidence included: fingerprints, eyewitness accounts, objects found at the scene, video footage, statements made by the defendant, telephone records.

Conclusion: Presence of physical injury and additional evidence did not, on their own, predict progression versus withdrawal of cases. Presence of additional evidence was related to guilty pleas or verdicts.

Lea, Lanvers & Shaw (2003, cited in Du Mont & White, 2007)


379 cases of rape or attempted rape reported to police between 1995 and 2000 were examined.
  • Other than the injuries sustained through the sexual assault itself no additional injuries were reported in 64% of cases.
  • Slight injuries were sustained in 33%, moderate injuries in 1% and severe injuries in 2%.

Conclusion: Injury was not shown to predict legal outcome.

Briody (2002-03)


Examined role of DNA in processing sexual assault cases. A total of 200 cases that had occurred between 1994 and 1999 were examined.

None were cases where consent was in issue.

  • Multivariate analysis showed that DNA evidence was related to a jury finding of guilt.
  • While DNA evidence was related to jury finding of guilt, it did not facilitate cases reaching the courts or defendants pleading guilty.

Conclusion: Other tangible evidence, such as signs of forced entry, was also found to be significantly associated with conviction.

Spohn & Holleran (2001, cited in Du Mont & White, 2007)

United States

Case files in a sample of 526 were examined (from Kansas and Philadelphia). Cases were categorised by the type of relationship between victim and perpetrator.
  • Injury was documented in 26% of cases and physical evidence in 58%.
  • Victims of partner sexual assault were more likely than those assaulted by acquaintances and strangers to have sustained "collateral injuries" such as burns, bruises, cuts, and internal injuries.
  • However, there was a greater presence of physical evidence such as semen, blood, clothing, bedding, and/or hair in cases of assault by strangers.

Conclusion: Only the availability of physical evidence to corroborate the victim's story was positively related to charge filing.

Spohn, Beichner & Davis-Frunze (2001)

United States

140 cases of sexual battery in Miami where a suspect had been arrested were examined.
  • Trauma such as bruises, cuts, burns and internal injuries had occurred in 29% cases.
  • Physical evidence such as semen, blood, clothing, bedding, and/or hair was available in 56%.

Conclusion: cases in which victims had sustained injuries were more likely to be prosecuted.

Du Mont & Mohr (2000)


Hospital charts of 187 female victims of sexual assault were examined.
  • Injuries occurred in 71% of cases.
  • Forensic evidence such as seminal stains, saliva, or non-motile sperm from the victim's body and/or the collection of blood, hair, fibres, etc. collected from the scene was documented in 82% of cases.

Conclusion: The presence of forensic evidence was not significantly associated with charge-laying.

More recently, a five-country study8 examined patterns of conviction and the factors associated with the attrition of rape cases from the legal system over two reform periods - an "early period" from 1970-1989, and a "late period" between 1990 and 2007 (Daly & Bouhours, 2010). The study examined decision points at the various stages: police investigation, prosecution, and court hearings.9 The authors found that during the early period, the victim's character and credibility was the most common factor influencing police and court decisions (89% of 33 studies). The next most common factor was the presence of injuries (67%). Forensic or witness evidence was a factor in 45% of studies. In the latter reform period only 35% of studies identified the influence of victim characteristics on police and prosecution/court outcomes. Further, over the period reviewed, and based on the available studies, it appeared that forensic and witness evidence had an increased influence at the police stage compared to prosecution or court (although this was not a statistically significant increase).

One of the Australian studies included in Du Mont and White's (2007) review analysed prosecutorial outcomes in 141 cases. Lievore (2004) found that cases were significantly more likely to proceed to trial or sentencing when:

  • the victim physically or verbally expressed non-consent;
  • the victim was injured during the attack;
  • there was evidence linking the defendant to the assault;
  • the defendant used force during the assault;
  • the assault was severe;
  • the defendant was a stranger; and
  • the defendant was non-caucasian.

Although there was no specific variable for "forensic medical evidence", victim injury, severity of the assault, and use of force could be seen as proxies for this. Cases not displaying these factors were more likely to not proceed. However, no single factor predicted cases proceeding or being withdrawn. Instead, Lievore (2004) found that some variables were correlated with each other in predicting case progression, namely "force", "non-consent" and "victim injury". Further analysis showed that the most significant relationship was between force and non-consent, that is, a case was less likely to be dropped if the victim was forced and actively expressed non-consent.

These findings suggest that stereotypical beliefs around what constitutes "real" rape (i.e., violence, involves penetration) and who is a "deserving" victim (i.e., someone who is "chaste" or attempts to resist her attacker), rather than the availability of forensic or medical evidence availability, continue to have a profound and significant affect on decision-making processes and case outcome for sexual offences.

Studies such as Briody's (2002-03) have demonstrated a link between DNA evidence and conviction, and a link between "positive" elements of a case, such as tangible evidence of the offence (physical injury, forced entry into premises etc.), and conviction. It is unclear however, whether there is a relationship between DNA evidence and tangible evidence (demonstrating that the offence fits the "real rape" paradigm) and conviction. There is little research on the joint influence of the rape myths listed above and forensic evidence. For instance, is a case with "positive" elements and forensic evidence more likely to result in a conviction than a case with positive case elements alone?

However, Briody's findings indicated that stereotypical beliefs about sexual violence play a role in cases either not proceeding to court or the defendant not being convicted. For instance, cases where the complainant had consumed drugs or alcohol were less likely to proceed to trial. Likewise, of the six cases sampled with DNA evidence where the defendant was not convicted, in five of these the complainant was intoxicated at the time of the offence and the complainant and defendant were previously acquainted (Briody, 2002-03, p.176). This suggests that the influence of rape myths (e.g., that rape is only committed by a stranger/women cannot be raped by someone they know or are in a relationship with) and perceptions of victim credibility (that women affected by drugs or alcohol are not reliable witnesses/were "asking for it"/are sexually promiscuous) are likely to be at play.

Summary of the research evidence

There is an increasing availability of, and reliance on, forensic evidence (Bornstein, 2004; Daly & Bourhours, 2010; Du Mont & White, 2007; Findlay & Grix, 2003), with DNA evidence in particular "becoming the pathway to conviction" (Findlay & Grix, 2003, p. 280). Despite this perception of increased reliance, the impact of such evidence on sexual assault case progression and outcomes is unclear.

Over and above the methodological variations between studies, in general, forensic medical evidence was associated with positive a legal outcome (however defined) in about half of the studies. In other words, there is not a definitive answer to the question of whether forensic medical evidence has a positive impact on legal outcome. Moreover, there is nothing to suggest that its role is absolute - it appears that a range of other evidentiary and credibility factors also have a role to play.

Further, not all forms of forensic evidence are equally useful. Evidence of injury (particularly severe or serious injury) is most often associated with a positive legal outcome. Other forms such as biological evidence do not appear to have any impact on legal outcomes. In terms of the type of legal outcome associated with forensic evidence, research findings are inconsistent and contradictory. Some studies find that forensic evidence is associated with arrest and charge, while others find an association between forensic evidence and conviction (whether by plea or verdict).

An important message arising from the research is that no single factor (e.g., the presence of forensic medical evidence) predicts case progression or positive legal outcomes. As noted by both Johnson et al. (2012) and Lievore (2004), there are complex interactions between numerous factors - including forensic evidence - which legal decision-makers such as investigators and prosecutors assess through the lenses of "discretion" and "convictability".

Limitations in the evidence

Researchers have noted that there is little published research that examines the uses and effects of forensic evidence and what has been published is dated (Peterson et al., 2010). In relation to sexual assault, the authors of a recent meta-analysis observed that the relationship between the availability of forensic evidence and positive case outcome is unclear; findings are either inconsistent or contradictory (Du Mont & White, 2007; see also Johnson et al., 2012). In addition, Du Mont and White expressed caution for the mixed results because of the limitations of the evidence, noting that:

There is a striking paucity of information and evaluative studies from which to assess the impact of medico-legal evidence on sexual assault cases. The design limitations of the research conducted to date are such that it is not possible to draw robust conclusions (2007, p. 2).

Some of the design limitations stem from the retrospective nature of reviews. This means that data could have been compromised as a result of: incomplete recording; relevant variables may not have been available; attrition may have impacted on analyses' statistical power; or there may have been variations in methods of visualising and recording forensic evidence. Further, most studies were conducted in large urban centres in industrialised countries such as the United States, Canada, Norway and Australia, meaning that their generalisability to different settings is limited.

Over and above these limitations, we would add that specificity of the legal context must be kept in mind in interpreting the implications of study findings for Australian jurisdictions. In many US jurisdictions, for example, physical force is an explicit component of the definition of rape and also shapes the notion of consent. This is not the legislative situation for most Australian states and territories (force or threat of force is but one circumstance that would negate consent). There are few studies that examine the role of forensic medical evidence on legal outcomes in Australian jurisdictions.

The role of forensic evidence in legal decision-making is examined in the following section.

4 Biological evidence included bodily fluids, DNA, vaginal and anal swabs, bite marks, and sexual assault kit samples.

5 The researchers in this study do not make clear how physical injury (general and ano-genital) has been classified. Depending on protocols in each jurisdiction, such documentation may be contained in sexual assault kits.

6 While this is clearly also important in earlier stages of the criminal justice process, such as police investigation, evidence pointing to the identity of the perpetrator is also pertinent to the criminal trial uniquely in that it prevents a successful defence strategy based around the identity of the accused (i.e., "it wasn't me"), though the resulting shift to the issue of consent is not necessarily of benefit to the complainant (Findlay & Grix, 2003).

7 These were Lievore (2004) and Briody (2002-03).

8 The countries were Australia, Canada, England and Wales, Scotland the United States. The researchers drew on: victimisation studies, recorded crime and court statistics; and studies looking at factors associated with legal outcomes. Thirty-three studies out of a total of 75 focused on the latter.

9 Due to different meaning attached to "prosecution" in the studies, which sometimes included court, the authors combined prosecution and court into one category.

Implications and questions arising from the research

Implications and questions arising from the research

The research evidence demonstrating or explaining an association between forensic medical evidence and sexual assault prosecution is not strong. This is due to methodological issues or actual gaps in the research (particularly in Australia). An important question suggested by the research is whether there are mismatched expectations about the role forensic medical evidence is assumed to have in legal outcomes, and the role that it does in fact have in securing positive legal outcomes for sexual assault complainants. This is not to say that forensic medical evidence is entirely insignificant, that it won't become more significant to sexual assault cases in the near future, or that it does not have important roles to play at different stages of the criminal justice system.

However, sexual assault remains one of the most difficult offences to successfully prosecute. Without ascertaining the actual role and impact of forensic medical evidence at different stages of prosecution, there is the danger that the availability of forensic medical evidence becomes a central criterion of proceeding with a matter when it is not clear that such evidence is a central criterion of securing a conviction. This may have implications for the types of cases that proceed. We discuss this in more detail below.

Sexual assault and the adversarial justice process: Putting forensic medical evidence in context

For legal purposes, establishing criminal liability (i.e., guilt) for sexual assault requires that four important elements were all present at the time of the offence. Where cases are contested, these elements must be proven beyond reasonable doubt. The physical and mental elements of sexual assault mean it is not enough for the prosecution to prove that non-consensual sex occurred; even if the jury is satisfied that the victim was not consenting they must also be satisfied - beyond reasonable doubt - that the defendant was aware of that non-consent (see Fileborn, 2011). Further to this, the defendant can argue that although he can see now that the victim was not consenting, at the time and in the circumstances he believed she was. Depending on jurisdiction, this belief does not need to be reasonable (just honestly held). These elements are described in Table 4.

Table 4: Elements of criminal offences
ElementDefinition/descriptionWhat needs to be established in a sexual assault case

Actus reus or physical element

The prohibited (criminal) act

Engaging in the defined behaviour without consent; for example, penetration of the vagina with a body part or object without the consent of the victim.

Two components need to be established to demonstrate actus reus:

  • Sexual activity occurred; and
  • it occurred without consent.

Presence/absence of consent, rather than the actual occurrence of sexual activity, is generally contested in trials.

Mens rea or mental element

The defendant's intention, recklessness or knowledge of the prohibited act

The defendant intended to do the physical act, and the defendant was aware that the victim was not consenting, or was reckless* towards whether or not the victim was consenting.

It is not enough for the complainant to know in themselves that they do not consent - the defendant must have knowledge of this non-consent to be considered legally guilty.


The defendant's actions cannot have been involuntary

Involuntary actions may include:

  • reflex actions;
  • sleep walking; or
  • being in a state of altered consciousness.

Extreme self-induced intoxication is not considered evidence that a defendant's actions were involuntary.

It is generally accepted that individuals so affected by alcohol would be unable to perform a sexual act.

Temporal coincidence

The actus reus and mens rea must occur at the same point in time for the defendant to be criminally liable for his actions.

The defendant had sexual intercourse with the complainant, without her consent, at the same time as knowing that, or being reckless towards whether, she was not consenting.

*Recklessness refers to a situation in which the defendant intentionally penetrates the complainant while being aware that she is not, or foreseeing that she might not be, consenting (Rush, 1997). That is, he does not necessarily intend to have non-consensual intercourse with the complainant, but is aware nonetheless (or should be, under the circumstances) that she might not be consenting to the sexual activity.

Source: Fileborn, 2011, p. 6.

Consent and forensic evidence

The majority of sexual assaults occur between known parties, and it is generally acknowledged by both parties that a sexual act occurred (Easteal & Easteal, 1990). Consequently, the issue of consent becomes the central focus and point of contestation during the trial - either through the construction of the complainant's consent, or the defendant's belief in her consent (Easteal & Easteal, 1990; Heenan & Murray, 2006; Lievore, 2004; Taylor, 2007). This presents a challenging context for forensic medical evidence in the courtroom.

Limitations exist as to the probative value forensic evidence in such cases. This is because of the elements of the offence that need to be proven. Forensic evidence may be of value in establishing some of the elements of a criminal case in some circumstances. For instance, forensic evidence may shed light on perpetrator identity (generally through DNA evidence), and connecting the perpetrator to the crime scene (i.e., victim/survivor's body in the case of sexual assault). Forensic evidence may also provide evidence of non-consent (through physical injury indicating resistance) which can support the prosecution argument that a sexual act occurred without consent. However, as noted, the mental attitude and knowledge of the defendant (or mens rea) is also important, and the defendant must have the requisite mental state (usually defined in legislation - e.g., knowledge of non-consent or recklessness as to whether the victim was consenting) in order to be found guilty.

The presence of injury may provide some insight into the mental attitude of the defendant - for instance if significant force was used then this would tend to suggest the defendant must have been aware of the complainant's non-consent. However, in cases hinging on the issue of consent, in the absence of serious physical injury, factors relating to the character of the complainant and defendant, and stereotypical scripts around sexual interaction, can be used to construct the defendant's belief in the complainant's consent (Heenan, 2002-03; Taylor, 2004; Young, 1998). While DNA evidence can function as an identifying tool, it is unable to provide evidence of consent; nor is its presence "conclusive of an individual's guilt" (Findlay & Grix, 2003; see also Gans, 2005).

Proving non-consent or consent can often rely on a "playing off" of the defendant and victim's version of events, due to the typically private nature of sexual relations and consequent lack of witnesses (Gans, 2007; Orenstein, 2007; Taylor, 2007). DNA evidence is unable to provide any insight into the truthfulness or otherwise of these accounts.Indeed, forensic biology laboratories in some states and territories, such as Queensland, do not perform DNA tests on samples where the accused has admitted to sexual activity occurring - such tests are of "no probative value" under this circumstance (Briody, 2002-03) - clearly demonstrating the limited use or need for DNA evidence in cases hinging on the issue of consent.

Other forms of forensic evidence, such as documentation of physical injury, may be more powerful in demonstrating non-consent, and have been associated with positive legal outcomes (Briody, 2002-03; Du Mont & White, 2007; Du Mont et al., 2009). Yet, even evidence of resistance on behalf of the victim and force on the behalf of the defendant does not provide legal proof of non-consent. The research evidence suggests that overall, few victims sustain ano-genital injury following sexual assault (McLean, Roberts, White, & Paul, 2011) and that where injury is present, the research is not clear that the difference between injury sustained during consensual intercourse and that sustained during non-consensual intercourse is substantial or corroborative (Anderson, Parker, & Bourguignon, 2008; Astrup, Ravn, Lauritsen, & Thomsen, 2012; Sommers, 2007).

Finally, many sexual assault victims do not sustain any additional physical injury in the course of the assault (Du Mont & White, 2007; Lievore, 2003; Taylor, 2007), meaning that such evidence is simply unavailable and irrelevant to constructing a case in these circumstances. Again, a reliance on, or imperative for, forensic medical evidence places cases where evidence of additional physical injury is not available at a distinct disadvantage. It is important to critically ask whether forensic medical evidence risks becoming a proxy for previous traditions, namely the unreliability of victim testimony and the framing of rape as a physical overpowering or against the will, compared to being about non-consent. This is discussed below.

The risk of reinforcing misconceptions about sexual assault

Historically, victim/survivors have been regarded as an unreliable class of witness.11 It is only in the last 20 years that warnings about the quality of victim's testimony are no longer mandatory. Similarly, the legal definition of rape has only recently shifted from being "against the will" of the victim, to being about the lack of freely given consent, in which it is not required to prove physical resistance. Current research suggests that forensic evidence can in some circumstances compound the influence of rape myths in the criminal justice system. The notion that:

rape is identified most strongly though DNA evidence does a disservice to the definition scope of sexual assault, and promotes the misunderstanding that without DNA other indicators of assault become problematic. Reforms in the law regarding sexual assault have recently attempted to emphasise the assault component in these offences as well as endeavouring to move away from a narrow conception of rape. Semen sampling as core of sexual assault proofs turn the clock back on this. (Findlay & Grix, 2003, pp. 280-281)

Expansions of the legal definition of rape and sexual assault across Australia has meant that a variety of acts not involving penile-vagina penetration now constitute sexual assault or rape (Fileborn, 2011). Clearly, sperm samples are unlikely to be obtained where the defendant has used an object or other body part to commit the offence - although DNA may still be obtained from skin or other cell types and physical injuries can be documented (Briody, 2002-03). Gans (2005) highlighted the potential of DNA evidence to perpetuate and support rape myths, particularly relating to assumptions around victim credibility and promiscuity. For instance, if samples of sperm collected from a victim's body are revealed to belong to more than one individual, indicating that the victim had intercourse with other men, this may allow the defence counsel to insinuate that the victim was sexually promiscuous, therefore justifying the defendant's belief in her consent, or to cast the complainant as of "poor" character, reducing her credibility as a witness and victim (Gans, 2005) (as well as potentially casting doubt as to who the actual perpetrator was).

Furthermore, DNA and other forensic evidence can be (mis)interpreted to insinuate that an offence did not take place. As Du Mont and Parnis (2003) suggested, a negative DNA match or the absence of DNA evidence may be interpreted by the defence to imply that "nothing" happened (see also Du Mont & White, 2007). Likewise, various authors have argued that a finding indicating that no physical injury (e.g., tearing of tissue in the genital region, bruises, cuts etc.) was received by the complainant may be construed to demonstrate that no offence took place, when rather these findings indicate simply that there were no injuries in addition to the assault itself (Du Mont & White, 2007; Kellogg, Menard, & Santos, 2004; White & McLean, 2006).

The use of forensic evidence in this manner plays into a host of rape myths, such as that real rape is violent and the victim/survivor will be physically injured in the course of that attack - though in reality only 23% of victim/survivors, according to one estimate, received additional physical injury (Lievore, 2004). The continued influence of this myth in the courtroom is demonstrated in Du Mont and White's (2007) finding that evidence pertaining to severe physical injury was the only evidence type associated with increased conviction. A reliance on forensic evidence to prove that an offence took place subsequently privileges certain models of (what is in fact atypical) sexual offending, such as that involving violent force (Findlay & Grix, 2003). However, forensic evidence is not always "produced" by the perpetrator (Easteal and Easteal, 1990). The perpetrator may not ejaculate, may have used a condom, or may have had a vasectomy meaning that no sperm is contained in their semen (sperm are the source of DNA in a semen sample) (Du Mont & White, 2007; Easteal & Easteal, 1990; Ledray, 2001).

It must be questioned whether victim/survivors who do not have DNA or other forensic evidence to support their claims are consequently at a disadvantage in accessing the legal system and obtaining a just legal outcome? Is expectation or reliance on forensic evidence in successfully prosecuting rape/sexual assault cases ultimately to the detriment of the majority of sexual offence cases where such evidence is either not available or unable to tell the jury anything relating to the key points of contention, such as consent? A great injustice would be incurred if the majority of sexual assault cases - those that already struggle to proceed through the criminal justice system at various stages (i.e., non-stereotypical acquaintance type rapes) - were further hindered purely due to a lack of forensic evidence.

Further, a dependence upon forensic evidence insinuates that the woman who is unable to produce forensic samples (as her body is the source of this evidence) is somehow less credible as a witness and complainant. That is, she requires evidence to corroborate her experience. Therefore, despite legal reforms counteracting this notion that the word of a woman alone cannot be trusted (Du Mont & Parnis, 2003), it would seem the notion that women are untrustworthy in the eyes of the criminal justice system endures (Du Mont & White 2007).12 Rather than definitively proving the occurrence of a "social wrong", an over-emphasis on forensic evidence lends credibility to a particular version of events via the "authority of science", creating the appearance of truth where the victim's account would otherwise be dismissed as "not credible".

11 In The History of the Pleas of the Crown, Lord Hale observed of rape that it is "an accusation easily to be made and hard to be proved and harder to be defended by the party accused, tho' never so innocent" (Hale, 1800, p. 634). Moreover, genuine complainants would raise a "hue and cry" immediately following a sexual assault. Though made with reference to a handful of matters, as an influential and highly respected jurist, mandatory corroboration warnings and warnings of delayed complaint continued in common law countries (including Australia) until at least the 1990s.

12 The language here is deliberately gendered as it was women who were subjected to the legal thinking behind mandatory corroboration warnings and were not legally recognised as victims of sexual assault at the time of Hale's judgement. Therefore these warnings were themselves gendered. Men are now recognised as the victims of sexual assault as well. However it is not clear what implications these historical issues have for adult male victim/survivors - and whether these historical issues continue to impact all victim/survivors, or just women and children victim/survivors.



Contrary to its representation within CSI-type shows, forensic evidence does not offer certainty or truth about a criminal incident, nor can it offer - according to forensic scientists - a causal analysis. As one forensic science specialist recently observed:

Contrarily to all other sciences, forensic science is looking at the least likely, fragmented, imperfect, uncontrolled element in an event: the trace, which, by definition, is a pattern, a signal or material transferred during an event … It is the remnant (the memory) of the source (who - with what?) and of the activity (what, how, when, why?) that produced it. (Margot, 2011, p. 91)

This is a very ephemeral characterisation of forensic evidence. Yet its "epistemic weight" in criminal justice decision-making (that is, its authority, objectivity and utility for decision-making) has sometimes been perceived as far more certain, leading Justice Kirby to wonder whether biological and biometric evidence, such as DNA, has become infallible (Kirby, 2010).

The empirical research and the debates about the interface between forensic science and the criminal law presents an ambivalent picture about what the role of forensic evidence in criminal prosecutions is - and what it should be. It is important to have a clear sense of this role, because the collection and analysis of forensic evidence is resource intensive. In addition, forensic examinations in the immediate aftermath of sexual assault can be difficult for the victim/survivor. Future debate, policy development and research will need to consider how to balance the imperative to collect forensic evidence from the body of the victim at the first contact stage (e.g., DNA, vaginal swabs, documentation of ano-genital injury - including photo-documentation) against the mixed findings as to its centrality in the successful prosecution of sexual assault.

In short, limitations exist as to what, and how much, forensic evidence can actually reveal about a sexual assault. The evidence to date suggests a mismatch between expectations that forensic medical evidence will have an impact on legal outcomes compared to the reality of legally proving sexual assault. This is particularly so within a trial context where it is consent that is most often at issue, rather than the identity of the suspect or whether sexual activity had occurred. There is insufficient Australian research to make firm assumptions about its role and impact. However, it is important to acknowledge that the structure of the criminal law restricts the probative weight forensic medical evidence can play, where other factors such as victim credibility can have a significant influence on legal practitioners' strategies and jury decision-making.

That is not to say that forensic evidence is of no use in sexual assault trials - it can clearly play an important if not crucial role at times. At the same time, the perceived benefits and uses of forensic evidence should not be overstated or, indeed, misrepresented. As Haesler (2006) noted, with evidence such as DNA, its apparent "certainty can be deceptive. It can be misused and misapplied. It … is part of a prosecution case, it is not a panacea" (p. 121).



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At the time of writing Antonia Quadara was the Manager of ACSSA, Bianca Fileborn was Research Officer with ACSSA and Deb Parkinson was Senior Research Officer with ACSSA.

Many people provided their professional insights and expertise during the drafting of this paper. We would like to particularly acknowledge Angela Williams, Jo Spangarro, Alistair Ross, Gregor Urbas and Roberta Julian for sharing this with us.


Quadara, A., Fileborn, B., & Parkinson, D. (2013). The role of forensic medical evidence in the prosecution of adult sexual assault (ACSSA Issues No. 15). Melbourne: Australian Centre for the Study of Sexual Assault, Australian Institute of Family Studies.