What constitutes evidence of sexual assault?

I am seated in a courtroom as a sexual assault forensic nurse is asked to explain, by a prosecutor, the basic tenets of genital anatomy. During the sexual assault trials I observed in Milwaukee, WI, testimony is highly orchestrated. Sequestration orders bar the presence of witnesses from the courtroom unless they are testifying. The first witness, almost always the complainant, is not present when the forensic nurse testifies. Early in the forensic nurse’s testimony, the prosecution provides a body map, and the map is introduced as an evidentiary exhibit so that the jury can consider this anatomy lesson in its search for truth. The map depicts two views of a vulva, referred to as a “vagina” in the shorthand of the court, more or less from the perspective of someone standing or sitting between a patient’s legs as they are held in stirrups. One of the views on the map includes a detailed view of the cervix, which can be visualized with the assistance of a speculum. The images are neat and simple, with black line drawings that belie the fleshiness of human bodies. The absence of the victim-witness during the forensic nurse’s testimony further alienates the corporeality of the body from its sanitized renderings. The sequestration order reproduces the work of the drape in gynecological examinations, separating persons and pelvises (Kapsalis 1997; Mulla 2014). As adjuncts to the testimony of the victim-witness, these maps serve as the basis for the jury to move forward in their deliberations over whether or not there is evidence beyond a reasonable doubt that a crime, in this case sexual assault, has been committed.

During the trial, the nurse responds to the prosecutor’s questions, explaining how and what we are seeing, and how these body parts function. When they describe the tissue of the “vagina”, the forensic nurses testify that vaginas are “made to have sexual intercourse often”; “lubricated”; “very stretchy”; similar to the membrane of the mouth — a mucus membrane”; “like a scrunchy” in reference to a tool for holding back the hair; “able to accommodate something the size of a watermelon”; and “a self-cleaning vessel.” These descriptions, of a lubricated, stretchy, self-cleaning membrane that is likened to the mouth (“Think how quickly your mouth heals when you bite it or have a sore?” a nurse might ask) assist the jury’s understanding of the minimal or absent injury in the sexual assault case being adjudicated. One nurse told us that once when she had testified, she removed her scrunchy from her ponytail, demonstrated its elasticity, and replaced it as a demonstration from the stand. Even as the testimony supports the jury’s ability to render a verdict, it also normalizes the vagina as distinctly gendered by invoking the qualities of a “vagina” through the feminized person of a nurse who uses gendered language to speak to the jury (Martin 1991). The nurse herself belongs to a profession which is over 90% female in the U.S., with deep roots in female religious orders, while the form of labor associated with nursing practice is itself intensely feminized. This normalization of gendered bodies participates in the normalization of sexual violence as heterosexual and heteronormative (Gavey 2005).

Returning to the testimony of the forensic nurses, one can ask about the purpose of the nurses’ demonstratives. Why use a scrunchy to illustrate the tensile nature of vascular tissues? Why not a timing belt, or a rubber band, or some object with a less (or differently) gendered provenance? The nurses’ testimony largely explains why there is “nothing to see.” The injured vagina, in these cases, is cast as inscrutable (and objectified, universal, capacious, yielding, heteronormative, resilient, reproductive, and a slew of other, mostly troubling, things). Pratiksha Baxi has productively described the relationship of medical expertise to the law in her in-depth ethnography of the sexual assault trial in India, Public Secrets of Law. Critiquing the longstanding reliance on the medical category of the sexual habitue in India’s law courts, she argues that there is no medical knowledge outside the law. It is the law that determines the status of disciplinary expertise, exemplified, for Baxi, in the enduring use of the two-finger test, in the Indian court of law.

This holds true in the context of law courts in the U.S., where accounting for the lack of injuries on a sexual assault victim, the nurse’s descriptions give context to a body that does not give up its secrets through the revelation of physical evidence. The experts — forensic nurses in these cases — can sometimes locate the microinjuries that laypeople will not see. These will be described by the forensic nurse as she testifies to what she saw when she conducted her examination. During the proceedings, the prosecutor often asks the forensic nurse to render the injuries onto a body map. This body map is then proffered as yet another evidentiary exhibit (Figure 2). This visual representation of the wound is, like the unwounded body map pictured above, still devoid of its fleshiness. Photographs of the genital examination, which are often a part of the medical trial, do not make their way into the law courts as prosecutors find that body maps, helpfully narrated by forensic nurses, are more effective conveyances of information. The body maps, unlike photographs, do not invite the same visceral response of disgust from the jury, a phenomenon that many prosecutors seek to avoid (Mulla 2014).

While microinjuries are sometimes present, more often, formulating the pathology of sexual assault as Canguilhem might in The Normal and the Pathological, the symptoms of sexual assault cannot be localized. It may be a productive slippage to substitute “injury” for “pathology” and wonder how to teach the jury to see when there are no visible wounds to mark the assaulted body. In the course of the sexual assault trial, the truth of sexual assault must be established through the painstaking and deliberate introduction of testimony. Between the nurses, social workers, police detectives, and crime lab analysts who are the most frequent expert witnesses participating in the trial, a variety of absences were explained away: the lack of injuries, lack of finger prints, imperfect DNA matches or the absence of DNA altogether, and delays in disclosure by victims of sexual assault. Whether compelling and insistent, or repetitive and tedious, the parade of witnesses who testify to the absence of evidence establishes that the lack of physical evidence is securely normal. The systematic materialization of the lack of evidence makes way for the testimony of the victim herself (or on occasion, himself). In A Theory of the Trial, Robert Burns writes,

“evidence is logically relevant if [the link between evidence and the proposition being offered] is supported by ‘experience or science,’ or, somewhat more technically, if that link, which constitutes the ‘probative value’ of the evidence presented, is secured by a ‘major premise’ that exists in our common sense (the ‘web of belief’) and which a reasonable jury could conclude was applicable to the evidence submitted” (1999: 22).

In the case of the sexual assault trial, the notion of what we can call vaginal durability is evidenced by supplementing jurors’ common sense: their mouths or a stretchy scrunchy or a reflection on the notion that women who bear children most often recover from laboring and birthing.

Here, courtroom ethnography illuminates the day-to-day practices of the trial court, ordinary events which are rarely captured in other forms of legal scholarship that focus on case law, or law at the level of precedent. This is how law is lived. Seated in a trial court for many months, I took note of the ceremony of repetition, the formulas that are proffered when adjudicants are on the record, and the care and thought that attorneys placed on selecting their witnesses, sequencing their witnesses, eliciting testimony on direct and cross-examination, and emphasizing unmarked body maps. My fieldwork frequently circled back to the ways in which forms of knowledge making during the sexual assault trial normalized the absence of injury by deploying a scaffolding for interpreting the findings of a pelvic examination, reinscribing a gendered understanding of the “vagina.” The conventions of the examination, such as draping, were conveyed through the court’s practice of witness sequestration, and its use of expert testimony that follows the complainant’s testimony, speaking to the victim-witness’ experience. It was the prosecution’s goal that the jury, compelled by the argument that a lack of physical evidence is normal, would then rely on the victim-witness’ testimony to make their findings. In the circumscribed space of a criminal trial, the justice system became one more space in which the singular experiences of particular victim-witnesses are shaped into familiar and normative narratives of gendered violence, while, regardless of the outcome of a legal case, nursing expertise serves to impart and normalize the “vagina” itself through a universalized rendering that can only be understood through the nurse’s expert intervention.

Bibliography

Pratiksha Baxi. The Public Secrets of Law: Rape Trials in India. Delhi and London: Oxford University Press.

Robert P. Burns. 1999. A Theory of the Trial. Princeton and Oxford: Princeton University Press.

Georges Canguilhem. 1989. The Normal and the Pathological. New York: Zone Books.

Nicola Gavey. 2005. Just Sex? The Cultural Scaffolding of Rape. New York: Routledge.

Terri Kapsalis. 1997. Public Privates: Performing Gynecology from Both Ends of the Speculum. Raleigh and Durham: Duke University Press.

Emily Martin. 1991. “The Egg and the Sperm: How Science Has Constructed a Romance Based on Stereotypical Male-Female Roles,” Signs. 16(3): 485-501.

Sameena Mulla. 2014. The Violence of Care: Rape Victims, Forensic Nurses, and Sexual Assault Victims. New York: New York University Press.

Sameena Mulla is Assistant Professor of Anthropology in the Department of Social and Cultural Sciences at Marquette University. Her book, The Violence of Care: Rape Victims, Forensic Nurses, and Sexual Assault Victims, details all of the labor that forensic nurses put into examining sexual assault victims, and how victims experience the exam preceding the trials she observed with her collaborator, Heather Hlavka. She is currently working on her next project, co-authored with Hlavka, based on the courtroom ethnography of sexual assault adjudication in Milwaukee, Wisconsin. Together, they observed over 630 court appearances in felony court, including 32 full sexual assault trials.

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