CRIMINAL TRIAL ROUTE - Ontario Network of Sexual Assault Care and by ewghwehws


The Legal Aspects of a
   Sexual Assault
        Michal Sokolski
       Suzanne Kernohan
         Melinda Matte
        March 27, 2009

 Suzanne Kernohan
    “9-1-1” Call
Third Party Complainant reporting basic
information, language barrier

Obvious injuries, medical attention required

Several locations for police to respond to
   -location of victim
   -scene of sexual assault
   -route from start to finish of attack
Police Response
 -Uniform Constables
 -Uniform Sergeant; coordinates police

 Criminal Investigative Bureau
 -Two Plainclothes Detectives
Preliminary Investigation
 Divisional Detectives in charge of initial
 Gather and assess information (evidence)
 Ensure proper police response/notification
 -Emergency Task Force
 -Forensic Identification
 -Sex Crimes Unit
Sex Crimes Unit
 SCU mandate; stranger on stranger sexual assault
 Attend crime scene, take charge of investigation
 (two Detectives)
 Continue coordinated efforts with other police
 Coordinate witness statements
 Attend hospital
 Victim Statement
Victim Statement
 Pure version, victim’s story
 Detectives re-cap story, clarify and question
 Gather information
 Basis for police action and follow up
 -address associations
 -victim’s cell phone
 MCM File; compile, read, organize
 Witness Interviews
 Person’s of Interest / Suspects
 Prioritize Details / Assign Details
 Reasonable and Probable Grounds
 Police have formed Reasonable and Probable
 grounds to arrest suspect

   description of suspect
   association to crime scene / residence
   created false alibi, lied to police and had witness lie to
   victim’s cell phone records (confirmed later, 2
   associates of suspect contacted with victim’s cp)
 Victim contact and follow up
Court Preparation
 Prepare Disclosure
    All notes, all statements, all records pertaining
    to the investigation to be forwarded to the
    Crown and Defence Counsel

 Crown meetings
    Crown and police work closely to prepare case
    and witnesses for trial

   Melinda Matte
Allegations included:
 Female walking home and confronted at
 knifepoint by male
 Abducted and brought to vacant townhouse
 Sexually assaulted vaginally with heavy
 bleeding, face licked
 No shower prior to SAEK
 SAEK collected within ~10 hours
 No last previous intercourse – complainant
 a virgin
Underwear from suspect – Exam for blood
Sexual Assault Kit – Exam for blood/semen
   Skin swab - face
   Toxicology samples – blood & urine
   Buccal comparison sample
   Sanitary napkin
   External genitalia swab
   Vaginal samples
   Rectal samples
Swabs from scene – washing machine and
laundry sink – Exam for blood/semen
Cloths and rags from scene – Exam for
Clothing from scene – Exam for
 Not necessarily!!
 Not all items that are collected from the
 suspect, at the scene or in the sexual assault
 kit are looked at
 Items are triaged based on the case history
 provided by police, nurse exam forms etc
 and questions being asked
 What questions need to be answered?
 What testing will assist in addressing the question
 at hand?
 A Forensic Scientist can only determine this from
 the information provided
 Our purpose is to determine whether an individual
 can be excluded as the source of a body fluid stain
 or other bodily substance, the source of which is
 in question
 We continue to test items until we have answered
 this question
 Underwear from accused – Blood
 Face swab from complainant – DNA
 Swab from washing machine at scene –
 Vaginal samples from complainant – Semen/DNA
 Comparison samples from accused and
 complainant - DNA
Accused underwear – No blood detected
Face swab from complainant – Only her
Swab from washing machine at scene –
Blood was detected, no semen was detected
via DNA, complainant could not be
excluded as source of DNA profile
Vaginal samples from complainant were a
challenge in DNA due to the heavy blood
staining – needed to use both vaginal
samples to obtain a DNA profile from
                                                              Mixture of sperm and non-
                                                              sperm (epithelial) cells

                    Mild chemical treatment

                                                      Epithelial cells disrupted
                                                      and DNA released.
Epithelial fraction removed                           Sperm cells intact
and purified
                                              Sperm cells

                                                                       Strong chemical
    epithelial DNA                 Purified                            disrupts sperm cells;
                                   sperm DNA                           DNA is purified.
RESULTS – Vaginal Swab #1
   Epithelial fraction   Sperm fraction
RESULTS – Vaginal Swab #2

RESULTS – DNA Comparison
Vaginal Swab #1   Vaginal Swab #2   Accused DNA Profile
 Sperm Fraction    Sperm Fraction
        -               XY                  XY
      15, *            15, 18              15, 18

        *              14, 15              14, 15
                       15, 15
                       15, 18
        *              22, 24              22, 24
                       24, 24
                       24, 25
        *               14, *              13, 14
        *             28, 30.2            28, 30.2
        *              13, 14              13, 14
        *              12, 12              12, 12
                       12, 13
      12, *            12, 12              12, 12
        *               9, *               9, 11
RESULTS – DNA Comparison
The accused cannot be excluded, at up to 9 STR
loci, as the contributor of the male DNA profile
from semen on the vaginal samples from the

The probability1 that a randomly selected individual unrelated to the
accused would coincidentally share the observed DNA profile is
estimated to be 1 in 2.2 billion.
           Some lessons learned
May not always get result on first sampling
   • i.e.needed to use 2nd vaginal swab
May have been more valuable to look at
underwear instead of 2nd vaginal swab
   To isolate a semen stain with less blood staining
   This is typically what is done now in sexual assault

  Michal Sokolski
      Criminal Trial Route
Police take witness      Possibly a bail hearing
statements and collect   Possibly a preliminary
evidence                 hearing
If they have RPG and     Trial
have established         Conviction or acquittal
identity will arrest
                         Possible appeal
Evidence collected
will be used at trial    Disclosure throughout
      Criminal Trial Route
Police take witness      Possibly a bail hearing
statements and collect   Possibly a preliminary
evidence                 hearing
If they have RPG and     Trial
have established         Conviction or acquittal
identity will arrest
                         Possible appeal
Evidence collected
will be used at trial    Disclosure throughout
           Types of Evidence
  911 calls
  Witness statements
  Clothing of victim (possibly of accused)
  Weapons used
  Photographs of victim (possibly of accused) and
  Medical evidence, DNA
Evidence collected must, in general, be disclosed.
          Factors re: Bail
Seriousness of offence
Does accused have criminal record
Risk to victim/public
Risk of accused interfering with
Risk of accused running away
Availability of suitable surety
         2 Common Scenarios
“DATE RAPE”                “STRANGER RAPE”
  Id of A known              Id of A not known
  Defence may be ‘it         Defence might be it
  never happened’            never happened
  Or ‘he/she consented’      Rarely – consent
  Usually no extra           Usually extra violence
  violence (or injuries)     (physical injuries)
  DNA to confirm it          Injuries to show force
  happened                   DNA to prove it
           Mode of Trial
Summary = Provincial   Indictment = Superior
Less serious           More serious – need
                       more than 18 months
Sentence up to 18      jail
months (for most
                       Prelim (Prov. Ct.)
sexual offences)       Trial (Sup. Ct)
Only testify once      judge and jury or
Judge alone            judge alone (accused
          Medical Evidence
Usually admitted at the preliminary hearing
without need to call authors of reports
If not admitted by defence then author must be
called to have it admitted
At trial, medical reports sometimes not admitted
by defence without calling the authors
Even if admitted, Crown may still call for greater
impact and clarity
May testify as an expert or a factual witness
Testify about they heard, saw, injuries seen,
demeanour, physical evidence, processes
and procedures used to gather evidence
Can be civilian, police or experts
Medical witnesses can testify about areas of
expertise and/or observations,
interpretations and procedures
         Expert Witness
Testify about the interpretation of what they
have seen; such as whether injuries are fresh,
how injury may or may not have been caused
To testify about this must be qualified as an
expert by the court – usually, they would have
produced a CV that is provided to defence in
advance (which should include whether they
have been qualified as an expert by a court in
the past – not a bar if they have not)
Sometimes admitted by the defence
      What makes an Expert??
Four criteria to admit expert evidence
1. Relevance
2. Necessity in assisting the trier of fact
3. Absence of any exclusionary rule
4. Properly qualified expert (knowledge
   beyond what the ordinary person would
   have on that subject)
          What To Do….
If you receive a subpoena, call the OIC and
find out if you will be an expert or not
If an expert – might be entitled to expert
fees, should meet with the Crown in
advance, will need more preparation for
court, should provide a CV
Have to give 30 days notice of intention to
call an expert (with c.v. and report asap)
        What To Do Cont’d
Remember, it could be anywhere from 8 months
to 3 years after speaking to a victim that you might
be called to testify
You might have to testify twice (prelim + trial)
Advise oic of any change of address, phone no.
    Why You Are Important
Medical evidence is very persuasive
It will corroborate the victim’s story
Evidence will have been gathered close in
time to the incident (hopefully!) – will take
the judge/jury back to that time
    Things to look out for….
Some cases hinge on DNA evidence so
avoid contamination
proper continuity of samples are vital to the
   Recording Your Evidence
Take detailed, legible notes
Note where the source of your information is
coming from
Be very particular about description of injuries
Photos, if possible
Give entire sex assault kit to police
Your notes (medical file) are discloseable – but
usually we do not give them unless the defence
asks for them
Chances are you might not even remember the
Routine is important – does not matter how you do
it, just make sure you do it the exact same way
each time – if deviate from the norm, make a note
of the difference
If there are standard processes and procedures,
know them and follow them
If defence suggests you don’t have a memory, can
say that you collect samples exactly same way and
if it was different, you would have noted it
For evidence to be made an exhibit with
evidentiary weight, Crown must establish
i.e. This item was the item that was seized and it
has not been altered
Chain of control – you are the first link
Crucial to note who you gave item to, how sealed,
Always seal, date, sign
Forensic Nurse VS. Counselor
Conversations between victims and
counselors have some degree of
As a nurse, you don’t have this; anything
victim tells you could be disclosed
Make victim aware of this
Do not ask personal questions unless
relevant to the exam
        Testifying in Court
Be Patient!!
Make sure you have your notes with you
Accused will be in the Court Room
Crown – open questions (can’t lead)
Defence – cross examination (to suggest does not
make it so) – Be Patient!!
Crown can re-examine
You will not have heard other witnesses
    Testifying in Court ctd.,
Judge may ask you questions directly
Don’t argue with defence counsel
Don’t take it personally
Warts and All approach – tell it all, do not
edit – let the Crown deal with any problem
No surprises please!!!
    Testifying in Court ctd.,
If you are called to testify and asked a direct
question, you must answer truthfully and
not in a way to assist the victim
You must not appear biased
Only say, I don’t remember, if you don’t
You will not know what the evidence was
before you or what it will be after you
    Testifying In Court ctd.,

BE PATIENT!!!!!!!!!!!!!!!!
           Role of Crown
Crown is NOT the victim’s lawyer
Crown’s job is to present the evidence
Crown should not proceed if there is no
reasonable prospect of conviction
It is not the Crown’s job to ‘get’ the accused
Crown must be fair and unbiased and ensure
the proper administration of justice
    Role Of Defence Counsel
Advocate for the Accused – to protect his/her
Must do whatever is necessary (within limits) to
render a result of not guilty
They advise the client, but ultimately they must
take instructions from the client
Try to bring out the weaknesses in the Crown’s
Defences can change without consequence
            Defence cont’d
Depending on the strength of the case, may or may
not call witnesses (including the accused) – they
don’t have to prove anything
If A tells lawyer his version of events (and these
show guilt), lawyer cannot call A to testify and lie
about it – in this case, the A won’t testify but
lawyer does not have to advise Crown or court of
reason or of A statement
Whatever A tells his lawyer, is privileged
Whatever the V tells police/Crown/you is not
               The Judge
Is the trier of fact
He/she must decide whether Crown has
proved it’s case BEYOND A
Will apply the law
Will sentence the accused after conviction
Note: a jury is the trier of fact and the judge
helps the jury apply the law
          Domestic Issues
Sometimes these victims give you a reason
for the injuries that you do not believe – if
you take notes of this, must note what you
are told
Do not try to explain or justify her account
in your notes or on the stand…you are not
an expert psychiatrist
The victim’s inconsistencies may be
explained; if is felt you are not being
forthright, it cannot
The Legal Aspects of a
   Sexual Assault
        Michal Sokolski
       Suzanne Kernohan
         Melinda Matte
        March 27, 2009

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