The Case

You are working a Saturday night when a 21-year-old female comes in for alcohol intoxication. Her vital signs are stable, and she appears visibly intoxicated. She appears withdrawn and tearful, and shortly after evaluation, she confides in you that she was raped at a college party. She doesn’t want the police called but does want a rape kit collected. She continues to insist on no police involvement. You are unsure about collecting a kit without law enforcement involvement and do not have a sexual assault nurse examiner (SANE) team at your hospital. What do you do?

It’s Not Unusual

Sexual assault is a common complaint in the emergency department. A 2010 study showed that one in five women and one in 71 men will experience rape, which the authors defined as “forced attempted or completed penetration.”¹ The rates of sexual violence other than rape, including being forced to penetrate another person, sexual coercion, unwanted sexual contact, and non-contact unwanted sexual experiences, are experienced by one in two women and one in five men sometime during their life.¹ And these national statistics do not adequately reflect the experience of populations in which rape and sexual violence occur in much higher numbers.

How patients are cared for in the emergency department can have profound effects on their physical, psychological, and emotional healing. Well-functioning, victim-centered programs utilizing SANE teams have been perceived as helpful, caring, compassionate, and supportive by sexual assault victims. Survivors are left feeling supported, believed, heard, respected, safe, reassured, in control, informed, and well cared for post-assault.^2–4 In contrast, a negative ED experience following sexual assault produces the opposite effects.

What Does the Law Require?

Emergency physicians are often held to federal and/or state laws when caring for victims of crime, including sexual assault survivors. Several of these laws come into play in the above case as well as in the overall care of intoxicated sexual assault patients.

First, many state statutes mandate law enforcement notification when patients who are victims of certain crimes present to the emergency department. These include gunshot wounds, stab wounds, battery, assaults with weapons, child abuse, elder abuse, domestic abuse, and sexual assault. For these crimes, ED personnel are classified as mandated reporters.

But just because a state law mandates reporting does not mean the patient has to speak to police. It is well within the rights of the patient to refuse to cooperate with law enforcement. Police understand this discrepancy between the law and the victim’s autonomy. Police officers may also be able to better explain to the patient all of their options regarding sexual assault reporting and investigation as well as the benefits and potential downsides of reporting. Sometimes officers develop a rapport with patients and may convince them to report the crime.

States may have victims’ rights laws, which provide protections and rights to crime victims. Some states require the patient be given the option of having a rape crisis advocate present during their examination. The hospital must inform the patient of this right and notify the advocate for the patient. In most jurisdictions, communication between the victim and advocate are privileged. Rape crisis center advocates understand the many ways sexual assault can impact a person and their family and are there to provide support and information so that the survivor may make informed, critical decisions. Advocates may also intervene or act on behalf of the survivor and assist with navigating the processes within the medical, law enforcement, and court systems.

Some states may have emergency contraception (EC) laws that require hospitals to provide emergency contraception to sexual assault survivors.⁵ If EC is not provided on site, such laws require the hospital have alternative plans for patients to obtain the medication. Some states require hospitals to register with the state and provide patient notification of the lack of provision of these resources.

Finally, and most important, federal laws play a role in sexual care. The Violence Against Women Act (VAWA) was passed in 1994 and has been reauthorized in 2000, 2005, and 2013.^6,7 VAWA provides communities with tools and funding to improve response to victims of sexual assault, domestic violence, dating violence, stalking, and trafficking. The act includes access to examinations free of charge, regardless of victim cooperation with law enforcement. Every state receives VAWA funding to provide services to sexual assault survivors.

One of the enhancements to VAWA in 2005 required states, as a condition of funding, to allow victims to receive a medical forensic examination without having to report the crime to law enforcement.^6–8 These kits have become known as Jane/John Doe kits or anonymous kits. This process allows victims to access medical care and allows time-sensitive evidence to be collected without forcing victims to immediately decide whether to report the rape to law enforcement. Victims can report the crime at any time to law enforcement within a prescribed time frame (which is state-dependent), and the collected evidence can then be analyzed. Giving victims time to decide about reporting is important for returning power to victims and giving them control over their participation with the criminal justice system. Failure to follow the VAWA statutes can cause a state to lose its VAWA funding.

One key tenet of sexual assault care is that patients must be able to provide consent for the medical forensic examination; patients have the right to refuse any or all parts of the examination.^9,10 Also, they have the right to decide what happens with the evidence collected.

Patients who are intoxicated may be not be capable of providing informed consent or actively participating in the exam process due to their level of intoxication. In these cases, patients should be observed and allowed time for detoxification. After clinical sobriety, options regarding reporting and the medical forensic examination can be re-reviewed with patients. Some patients who are unconsciousness, head-injured, or have other serious traumatic or medical conditions may remain unable to consent for a much longer period. During this prolonged period, evidence may be lost or degraded. Therefore, emergency departments should have protocols for handling consent and examination in these unconscious/nonconsentable patients.

Many advocate for collecting the evidence and then waiting for patients or their legal surrogate to decide what is done with the evidence. Emergency departments and SANE programs should have a policy describing how to handle intoxicated, unconscious, or incapacitated victims of sexual assault.⁹

Case Resolution

The patient remains hemodynamically stable and is allowed to sober up in the emergency department. At that time, the patient still wants to undergo medical forensic examination without reporting the incident to the police. The patient is transferred to a SANE-designated facility and undergoes examination and evidence collection.

Dr. Riviello is chair of emergency medicine at Crozer-Keystone Health System and medical director of the Philadelphia Sexual Assault Response Center.

Dr. Rozzi is an emergencyphysician, director of the Forensic Examiner Team at WellSpan York Hospital in York, Pennsylvania, and chair of the Forensic Section of ACEP.

References

1. Black MC, Basile KC, Breiding MJ, et al. The national intimate partner and sexual violence survey: 2010 summary report. Centers for Disease Control and Prevention website. Accessed Oct. 15, 2018.
2. Campbell R, Patterson D, Adams A, et al. A participatory evaluation project to measure SANE nursing practice and adult sexual assault patients’ psychological well-being. J Forensic Nurs. 2008;4(1):19-28.
3. Ericksen, J, Dudley C, McIntosh G, et al. Clients’ experiences with a specialized sexual assault service. J Emerg Nurs. 2002:28(1):86-90.
4. Fehler-Cabral G, Campbell R, Patterson D. Adult sexual assault survivors’ experiences with sexual assault nurse examiners (SANEs). J Interpers Violence. 2011;26(18):3618-3639.
5. Emergency contraception. Guttmacher Institute website. Accessed Oct. 15, 2018.
6. SANE program and development guide. Office for Victims of Crime website. Accessed Oct. 15, 2018.
7. Background on VAWA 2005, VAWA 2013, and forensic compliance. End Violence Against Women International website. Accessed Oct. 15, 2018.
8. Unreported/anonymous sexual assault kits. The National Center for Victims of Crime website. Accessed Oct. 15, 2018.
9. Carr ME, Moettus AL. Developing a policy for sexual assault examinations on incapacitated patients and patients unable to consent. J Law Med Ethics. 2010;38(3):647-653.
10. SANE program and development guide: Informed consent and patient confidentiality. Office for Victims of Crime website. Accessed Oct. 15, 2018.