‘It is Not for Me to Say Whether Consent Was Given or Not’: Forensic Medical Examiners’ Construction of ‘Neutral Reports’ in Rape Cases
| Author | Gethin Rees |
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| DOI | http://doi.org/10.1177/0964663910362291 |
| Subject Matter | Articles |
Social & Legal Studies
19(3) 371–386
‘It is Not for Me to Say
ª The Author(s) 2010
Reprints and permission:
Whether Consent Was
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DOI: 10.1177/0964663910362291
Given or Not’: Forensic
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Medical Examiners’
Construction of ‘Neutral
Reports’ in Rape Cases
Gethin Rees
University of Edinburgh, UK
Abstract
Attrition rate studies have outlined the role the ‘real rape’ stereotype plays in
prosecutor decisions concerning the progression of rape cases through the criminal
justice system. According to the ‘real rape’ stereotype, the victim should attend the
medical examination with significant physical injury, and therefore police, prosecutors
and jurors take injury evidence into consideration when deciding the veracity of the
complainant’s allegation. However, forensic medical studies have shown injuries to be
rare, and even when present, consent cannot be dismissed. To this end, in nearly all
cases Forensic Medical Examiners (FMEs) produce ‘neutral reports’; reports that
neither confirm nor deny the complainant’s allegation. In this article I explore FMEs’
justifications for neutral reports, and find that their production reinforces
FMEs’ expertise. FMEs construct boundaries, distancing themselves from contentious
issues. While such boundaries ensure authority, they limit evidential significance,
which in turn provides a space for the prosecution to dismiss evidence that does not
conform to the popular understanding of rape. Such a ‘vicious cycle’ of prosecutorial
decision-making removes the opportunity for FMEs to explain the limits of injury evi-
dence to the police, prosecutors and the jury and reinforces the belief that injuries are
a necessary outcome of rape assaults.
Keywords
attrition rates, boundary work, expert evidence, forensic medicine, injury, rape
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The attrition rate in rape cases continues to be a significant criminal justice problem. The
rate at which cases drop out of the prosecution process is disproportionately high when
compared to similar serious offences, leading some to postulate a ‘justice gap’ (Harris and
Grace, 1999; Horvath and Brown, 2009; Kelly et al., 2005; Temkin and Krahe´, 2008)
between the large number of cases reported and the very small number of rape convictions
(approximately 6 per cent for England and Wales). Various studies have highlighted that
popular attitudes and the beliefs of prosecutors about what constitutes a ‘real rape’ lie at
the heart of the justice gap (Ellison and Munro, 2009a, 2009b, 2009c; Estrich, 1987; Harris
and Grace 1999; Horvath and Brown 2009; McMillan and Thomas 2009; Munro and Kelly
2009; O’Keeffe et al. 2009; Temkin 2005; Temkin and Krahe´ 2008). ‘Real rape’ typically
involves an unsuspecting woman being attacked by a stranger, in an outdoor location at
night, with the stranger employing force or a threat of force (with the use of a weapon),
and the victim offering active resistance. According to the ‘real rape’ myth, after the attack
the victim appears highly traumatized by the experience and reports immediately to the
police (Temkin and Krahe´, 2008). Attrition rate studies have discovered that attacks sim-
ilar to that described by the ‘real rape’ discourse are actually quite rare (Harris and Grace’s
attrition rate study found that 12 per cent of their sample consisted of stranger assaults),
and therefore the assumption on the part of prosecutors and the wider public that ‘real rape’
constitutes the rule rather than the exception undermines, in their eyes, the perceived vera-
city of certain allegations, given that decisions on how to mark and progress cases are
made on the basis of similarities to a stereotype.
While legal scholars, social scientists and the government (see Home Office (2006)
and Crown Office and Procurator Fiscal Service (2006) for examples of government
policy recommendations related to the conviction rate) are currently trying to identify
strategies to undermine the ‘real rape’ stereotype, one area that has not received as much
critical consideration as I believe it deserves is the significance and authority that the
‘real rape’ myth grants to forensic medical evidence. ‘Real rape’, as outlined in the
description above, is physically violent, involving the use of weapons, the active resis-
tance of the victim, and the swift reporting of the assault. These phenomena combined
are (it is assumed) likely to produce significant quantities of injuries, both genital and
extra-genital. To this end, prosecutors and the public often make inferences about
whether or not consent was provided for a sexual act on the basis of the prevalence of
injuries upon the body of the complainant/complainer1 (Du Mont and White, 2007;
Ellison and Munro, 2009a, 2009b; Harris and Grace, 1999; MacKinnon, 1989; McGregor
et al., 1999, 2002). Forensic Medical Examiners (FMEs) have developed the expertise to
provide opinions about injuries; however, they have become increasingly aware of the
limitations of injury evidence. In the vast majority of cases, the complainant/complainer
does not attend a forensic medical examination with significant signs of injury upon her
body; and even in cases where signs of injury are present, the FME cannot determine
whether the injuries are consistent with the complainant/complainer’s allegation that
non-consensual sexual intercourse has taken place. Therefore, in opposition to popular
preconceptions about the number and severity of injuries with which the ‘real rape’
victim will present, and the related use of injuries by prosecutors to assess the veracity
of the complainer’s statement (O’Keeffe et al. 2009), it has become the norm for FMEs
to write ‘neutral reports’ – that is reports that neither confirm nor deny the
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complainant’s/complainer’s allegation of rape. While FMEs will observe and record
signs of injury upon the body, provide explanations for those injuries where possible, and
compare them to the complainer’s account in order to assess whether or not they corro-
borate some of the details, they prefer not to draw conclusions as to whether or not the
injuries signify non-consensual sexual intercourse.
At the present time, FMEs are actively attempting to educate the public (including
prosecutors) about the limitations of injury evidence, given the uncertainties over what
such evidence (or a lack of it) represents. However, the contemporary investigation and
prosecution processes of the criminal justice system serve to undermine FMEs’ efforts,
and in fact reinforce stereotypical beliefs concerning the importance of injury to a valid
rape allegation. This article will therefore investigate the ‘neutral report’ and its conse-
quences. Drawing upon interview data with FMEs working in Scotland, I will first flag
up the reasons why FMEs produce ‘neutral reports’: I argue that they do so in order to
construct boundaries around their epistemic authority. As a result they are limiting their
evidential significance, and this has repercussions for their stated agenda of educating
prosecutors and the public about the problems with the ‘real rape’ stereotype. Drawing
upon Munro and Kelly’s (2009) useful heuristic of the ‘vicious cycle’, I will argue that it
is likely that FME evidence will be led at trial only in cases with significant signs of
injury, that this in turn will reinforce already-entrenched popular ideas about rape vic-
tims. Thus, while FMEs are very keen to dismiss such beliefs, the neutral report may
unintentionally perpetuate unhelpful stereotypes about the nature of rape.
The data cited in this article derives from a broader project intended to discover how
FMEs generate forensic medical evidence in rape and penetrative sexual assault cases in
Scotland. As with earlier studies concerned with police doctor/FME practice and/or atti-
tudes (Kelly et al., 1996, 1998; Savage et al., 1997; Temkin, 1998),2 I chose to conduct
in-depth semi-structured interviews. Access to FMEs was generated via gatekeepers
(well-respected FMEs in three constabularies, the forensic manager in another), enabling
access to respondents in four out of eight constabularies. The complete interview sample
consisted of 13 FMEs. Each interview lasted between 50 minutes and two hours, was
digitally recorded, and transcribed verbatim.
Further to the interview material, I also analysed key clinical forensic medical journal
articles and textbooks relating to sexual offences and/or interpreting injuries. Both sources
of data, interviews and documents, were analysed using the Framework Method (Ritchie
and Lewis, 2004), wherein data was reviewed resulting in the development of core and
subsidiary themes; data was then indexed in accordance with those themes and input into
a matrix. The development of this matrix enabled the comparison of results within themes
and among respondents. The eventual matrix consisted of four main and 35 subsidiary
themes. The quotations have been chosen as most representative of the themes I wish to
address in this article namely, the neutral report as an act of boundary construction, and
the implications of that construction for the reinforcement of rape myths.
The Norm of Neutral Reports
Typically, after reporting a rape to the police, the complainer will be taken by an
accompanying officer for a forensic medical examination. During the examination, the
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FME will observe the complainer’s body looking for signs of injury, which they will then
record. Upon completion of the medical...
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