A common phrase used as evidence in prosecution of sexual offences is “hymen was broken”.
Often, both investigators and victims are left disappointed when suspected sexual offenders are freed on grounds of lack of evidence despite the frequent reference to the phrase.
However, basing a sexual offence case on “broken hymen” is not only a medically incorrect misconception, but is also largely insufficient to convict sexual offenders, experts have said.
In the wake of a surge in child pregnancies and cases of defilement, forensic and legal experts now to point to systemic gaps that continue to deny justice to victims of sexual offences.
However, most cases of sexual assault, particularly defilement, go unreported. And some that are reported fail to yield in conviction.
Statistics by the Ministry of Education show that at least 11,950 school children were impregnated last year.
Data from the Kenya National Bureau of Statistics, on the other hand, shows that the Department of Children’s Services only handled 735 child pregnancies and 2,742 defilement case. At the same time, at least 5,397 people were suspected of committing defilement within the same period.
The data is an indication of failure to properly expedite defilement cases by the justice system.
While complacent and complicit bungling of cases largely takes blame for lack of justice for victims, lack of requisite technical skills and facilities is to blame equally.
According to Police surgeon and forensic expert, Dr Kizzie Shako, gaps within the justice system continue to deny victims and suspects of sexual offences justice.
“In all criminal matters, physical evidence is crucial, and sexual offences are criminal cases. But there is a lot to it and our system currently has so many gaps that are systemic. In sexual offences, if everybody does their part in the right way then they are very straightforward cases,” Dr Shako tells the Nation.
Dr Shako specialises in matters of sexual abuse and explains the ideal chain of processes that should be followed in such cases.
For the purpose of this report, we focus on defilement which continues be a thorn in the country’s foot.
“In cases of defilement, a child’s testimony is very weighty because children are less likely to lie. So, a magistrate will tend to believe the child. But physical evidence is also key,” she says.
Ideally, a victim of defilement is advised to report to a health facility within 72 hours. This is so as to address issues of infection or pregnancy that may arise from the ordeal. Victims are also advised not to shower immediately after the ordeal and preserve the clothes they were wearing during the incident.
A medic is then required to make an examination on the victim and prepare a medical report, which is then taken to a police station and a report made to commence investigations.
Currently, this first point of action is usually hindered and bungled by a myriad of issues, some society and others systemic.
One of the most troublesome is the failure to report a sexual offence either by the victim or their guardian.
“The first course of action for a victim of defilement is still a debatable issue, but it depends on the location and distance from either the police or health facility. But it is key that the victim gets medical attention within 72 hours. We are still facing a major problem where sexual assault is not reported because of communal issues,” she explains.
But even when the matter is reported, some errors tend to compromise investigations and deny justice to victims. Most errors happen during the collection of forensic evidence and documentation stage of the investigation.
Forensic experts argue that failure to visit the initial scene of the crime and mishandling of physical evidence collected is likely to weaken a case.
Forensic Medico- Legal Manual for East Africa, a forensic guidebook by lobby group Independent Medico Legal Unit (IMLU), outlines that key physical evidence like torn clothing, body fluids and even photographs can be found at the initial crime scene and it is important that it is properly collected, analysed and preserved in the build up to a case.
In most cases, police have been at fault for failing to analyse crime scenes and for mishandling exhibits. The blame also lies on a section of the medical department. Some of them are as simple as having a minor undergo a medical examination in the absence of a parent or official guardian. This can be viewed as a legal loophole to be exploited by defence lawyers in court.
However, the documentation and consequent interpretation of findings by medics plays a big role in collapse of sexual offences cases.
The most common of them is reference to “broken hymen” as proof of sexual assault and core piece of evidence.
Scientifically, the term is an incorrect misconception. Medics have demystified the topic by saying that absence of “intact” hymen is not proof of sexual penetration. The hymen in female anatomy is a tissue membrane usually at the opening of the vaginal canal. It varies in shape and thickness depending on age, but never fully covering the vaginal canal. In fact, a hymen that is fully covering the canal is considered an abnormal medical condition that requires reconstructive procedure.
“That is a very common error. It is not a gateway that opens during initial penetration as commonly thought. A hymen that fully covers the vaginal opening is very rare. But this misconception is still used in cases,” Dr Shako says.
The forensic expert argues that medical examiners should, instead, be on the lookout for bruising and tears in the skin tissues.
At the same time, they are required to collect swabs on the bodies of victims, and the available suspects subjected to DNA analysis.
Usually, sexual assault victims can name and identify suspected perpetrators of the offence in the initial reporting.
Samples collected are then supposed to be handed back to the investigating officer to be forwarded to a laboratory for analysis.
Medical examinations on victims could be more than one depending on the investigations
Again, even in this stage, the forensic evidence gathered tends to be mishandled and sometimes lost or tampered with in the investigative process.
Evidence gathered should go through a specific chain of custody, which is documented in every stage. However, this evidence is susceptible to compromise intentionally to cover up or accidentally for lack of proper skillset and knowledge.
“Sometimes police are misunderstood. Everyone needs to be taught about forensics and how to manage evidence and chain of custody. Police might do the right thing but the medics make a mistake or even the prosecution. So, it is a matter of gaps in the whole system,” Dr Shako says.
She noted that in some instances, the evidence gets lost in documentation or even samples mixed up.
Experts, however, say the current justice system has addressed a lot of the gaps in tackling sexual offences.
Nevertheless, there is more to be fixed across board, from the society level, law enforcement and even in the Judiciary. At the same time, law enforcement agencies continue to grapple with lack of sufficient facilities to store and analyse forensic evidence.
Key among the changes that have been made is the revision of the police training curriculum to include forensic studies.
At the community level, there is a call for intense creation of awareness to ensure sexual offences are reported and properly prosecuted.
“When we talk of teenage pregnancies, we seem to be profiling defilement victims as promiscuous. These are defiled and impregnated children, and we should call it as it is so that it registers in people’s minds that it is wrong,” she says.
On the current surge in child pregnancies, Dr Shako believes each case should be investigated and prosecuted individually.
“The Kenyan child is adequately protected by the law, so it is a matter of sensitization of the public. As for these cases, the pregnancy is forensic evidence waiting to be collected and the cases are quite straightforward,” she says.