The presence of injury upon the body of a rape assault survivor has been demonstrated as a strong predictor of successful criminal prosecution (Du Mont and White 2007). Forensic practitioners, either doctors (known as Forensic Medical Examiners (FMEs)) or nurses (Forensic Nurse Examiners (FNEs)), spend the majority of the forensic intervention that follows the reporting of a rape assault observing the body and recording anything that they determine constitutes abnormal phenomena (Rees 2011). This obser- vation and recording process is separated into genital and non-genital examinations, and while injuries are often not difficult to observe macro- scopically upon non-genital areas, the same cannot be said for the ano-genital region. Consequently, since the 1990s, a gynaecological technology known as the colposcope has been recommended for use within forensic medical examinations (Slaughter and Brown 1992). The colposcope, initially designed to investigate the cervix and tissues of the vagina and the vulva following the return of an irregular pap smear, is a type of microscope that can magnify the genital (and anal) areas up to 30 times (Rogers 2004). It comes complete with a light for illumination and a camera for recording the examination. According to those promoting the use of the colposcope within forensic medical examinations, magnification and illumination is likely to increase the probability of observing signs of genital injury; meanwhile, the camera enables improved contemporaneous recording of the examination, producing better evidence for criminal justice as well as medico-legal research (Brennan 2006). However, not all forensic practitioners are convinced that this device is useful or appropriate, and some challenge its incorporation on both victim-centric and scientific grounds.
Such concerns are indicative of the difficulties that arise when new tech- nological interventions are introduced into the legal milieu. While the practitioners of both science and the law promote reliance upon rationality and objectivity in their knowledge production (Smith and Wynne 1989) and are keen to employ new devices in order to ascertain that knowledge, as other chapters in this volume have testified, implementing new technologies is often complex and controversial. While (medico-) legal practitioners may
endeavour to utilise technologies that are the state of the art as part of a thor- ough investigation, the use of the technologies are also required to meet the ethical, legal and moral standards required by law. The colposcope is such an example of a device where it was considered to offer (what I will go on to label) evidential benefit at the expense of victim care and as a result an on- going controversy in forensic medicine ensued regarding whether the colposcope should become established best practice.
Controversies have been a fruitful area of study in science and technology studies (STS) as they demonstrate science in the making (Mercer 1996). Harry Collins (1975, 1981) employed the metaphor of the ship in the bottle to explain the ways that controversies can help the analyst of scientific know- ledge and practice. Once the ship (a scientific claim or practice) is in the bottle (accepted as ‘knowledge’ or ‘best practice’), then for all intents and purposes it appears to have always been there, or ‘ready assembled’ (Collins 1981: 45). In other words, it becomes seen as self-explanatory that a partic- ular practice is the most efficacious method. However, close observation of the controversy – either historically, when the analyst knows the outcome of the debate (see for example Barnes and Shapin 1979), or ethnographically when the controversy is on-going (Collins 1981) – draws attention to the complex negotiations and social influences required to generate consensus around the knowledge claim or practice (for instance, not publishing papers in high profile journals, or not inviting certain scientists to important confer- ences; Barnes et al. 1996, Kuhn 1996).
In many ways the colposcope controversy mirrors a larger dialectic, often considered to be at the heart of forensic medicine: whether the forensic medical practitioner is an objective evidence-gatherer or the provider of ther- apeutic care to a victim. This ‘dual role’ inherent in the original title of the forensic practitioner – i.e., the ‘Police Doctor’ (Savage et al. 1997) – neces- sitates that practitioners choose to emphasise either the evidential or the therapeutic aspect of their work when performing a forensic intervention.1As
I will show in the first half of this chapter, both those who promote and those who oppose the routine implementation of the technology are drawing upon a particular rhetoric surrounding the forensic medical role (i.e. evidential or therapeutic) to make their case. However, as with nearly all the scientific
1 The assumption that evidence gathering and care of the complainant are mutually exclu- sive categories has not only been prevalent in the forensic medical intervention, but the police and prosecuting and defending barristers have also, for many years, believed that the only way to get at the truth of whether an allegation happened was by appearing sceptical or disbelieving to the complainant. i.e. emphasizing evidential needs over care (Horvath and Brown 2009, Kelly et al. 2005, Rees 2010, Temkin 2000, 2005). Fortunately such practices are nowadays less common, especially in the police (McMillan and Thomas 2009), however, even the recent Stern Review (Stern 2010) can be characterised as stating that complainants can either receive fair treatment (known as procedural justice) or have a strong case (criminal justice), i.e. the care versus evidence dichotomy produced anew.
controversies previously studied, there has been no decisive ‘crucial experi- ment’ or announcement marking an end to the debate; rather, research interests have moved on, leaving forensic practitioners to make local deci- sions regarding the best ways to employ the technology. Accordingly, the device is routinely employed in forensic work, but in circumscribed ways: practitioners aim to achieve the most benefit from the colposcope while simultaneously attempting to limit the harm caused by the device to the survivor.2
In the second half of the chapter I will draw upon interview data from two studies of forensic medical practitioners (one with FMEs, the other with FNEs) to argue that when making their decisions about the best ways to use the colposcope, practitioners are not acting in a ‘dual role’ but rather in a specially ‘forensic’ mode (Mulla 2011, Rees forthcoming). Such a modality of practice does not involve the fluctuation between evidence gathering and therapy, but involves a unique style of praxis that is simultaneously alert to and incorporative of both aspects of the work traditionally characteristic of FM/NEs. Further, I will argue that the introduction of new technologies into the legal milieu is not without its problems; in this case the requirement for both therapeutic and evidential practices necessitated innovation in the ways that the colposcope was employed, most notably the ways that the images produced by the device were stored and utilised. Such local negotia- tions and workarounds are common for the successful application of scientific and medical technologies in the legal milieu.
The data presented in this chapter derive from two studies: one investi- gating the role and work of FMEs in Scotland, conducted between 2006 and 2008, and the second investigating FNEs in England in 2010. Interviews were performed between 2006–10 with 13 FMEs from four constabularies in Scotland and five FNEs from five hospitals in England (the total popula- tion of FNEs employed at the time). Alongside the interview data, both studies also involved analysis of the textbooks, journal articles and practice guidelines that FM/NEs use in training, research and work. Drawing upon these data for the remainder of this chapter, I will set out the colposcopy controversy before focusing on the way that it has played out and been resolved in local contexts.
2 Throughout this chapter I will use the terms ‘survivor’ and ‘victim’ interchangeably to connote the subject upon which the colposcope is used. While I am aware of the various difficulties with the choice of preferred noun for the survivor of sexual assault, and in particular the use of the word ‘victim’, I believe that these represent a far less disbelieving attitude towards the subject than the term ‘complainant’, normally used to identify some- one who has reported a sexual assault but which leaves dubiety over the veracity of their allegation.
The colposcopy controversy
The controversy centred around two studies by Laura Slaughter and colleagues in the 1990s (Slaughter and Brown 1992, Slaughter et al. 1997), which advocated the use of the colposcope due to the evidential benefit provided by its improved illumination and magnification. However, many practitioners were unconvinced by Slaughter et al.’s recommendations. I will outline the details of the controversy, beginning with those who promoted the device for its evidential benefit.
Evidential benefit
Gynaecologists were the first to identify the potential benefits of the colpo- scope for forensic medical investigations (Teixeira 1980). Due to their experience working with the device in order to perform clinical investigations of the cervix, gynaecologists were aware of the improved magnification and postulated that this would enable forensic practitioners to examine genital regions with similarly greater precision. This early recommendation is often elided in practitioner histories of the colposcope (e.g., Sommers et al. 2005), and Teixeira’s (1981) colposcopic study of 500 victims of sexual offences is normally cited as the first medico-legal study to identify the efficacy of the technology. Teixeira reported that his method of observing the hymen via the colposcope resulted in greater clarity than macroscopic observation alone, arguing the colposcope: ‘to be irreplaceable in the examination of the victims of sexual offences and recommends its adoption by all medicolegal services’ (Teixeira 1981: 214).
Although Teixeira’s conclusions have since been labelled ‘dubious’ and ‘confusing’ (Lincoln 2001: 212),3 his findings nevertheless demonstrated
that the colposcope could provide improved visibility for genital examina- tions. This was deemed to have implications for criminal justice, such as the identification of injuries unseen by macroscopic observation and the ability to identify observed phenomena as naturally (or otherwise) occurring.
Teixeira’s findings appear to have been ignored and forgotten about during the 1980s, and the question of the incorporation of the colposcope was not broached again until the publication of Slaughter and Brown’s (1992) study.4Concerned with the reported low observation rate of genital
injuries (only in 10 per cent to 30 per cent of cases), the authors compared the colposcope with a nuclear stain, ‘Toludine Blue’, customarily placed on
3 The team were assessing the veracity of sexual violence cases based upon whether the hymen was intact, a highly circumspect method of interpretation.
4 Teixeira’s study is not cited in Slaughter and Brown (1992) and in fact they explicitly state that ‘[n]o published studies have evaluated the usefulness of the colposcope in the routine assessment of rape victims’ (Slaughter and Brown 1992: 83). Of course such an evaluation was exactly what Teixeira was trying to achieve.
complainants’ genitalia in order to highlight signs of injury (albeit leaving the complainant with a stain on her genitalia that came to be known as the ‘the mark of the rape victim’ (Lincoln 2001: 215)). Slaughter and Brown colposcopically examined 131 women who had reported non-consensual penile-vaginal intercourse taking place within the past 48 hours, observing genital injury in 87 per cent of cases. They concluded that the colposcope was not only superior in observing signs of injury, but was also, by attaching a camera, of significant value to criminal investigations and the development of a medico-legal evidence base for genital injury:
The clarity afforded by colposcopic magnification will also allow us to further characterize genital changes associated with rape. The findings in this study support the opinion that rape victims often sustain mounting injuries. The ability to detect and document these injuries through colposcopic photography provides valuable medical and legal information.
(Slaughter and Brown 1992: 86) This quotation exemplifies much of the argument for the colposcope (although it of course developed as the controversy progressed). Slaughter and Brown emphasised the different types of evidence that the device could provide: not only would it result in magnified and clearer images of the geni- talia that would enable experts to make more precise observations, but it also enabled recording of those images (as photographs, or later moving visual images on film and digital recordings), which could be used by other actors in the criminal justice process.5
Moreover, those same images could also be collated and used as scientific evidence in the development of forensic medical knowledge about the effects of forced sexual intercourse on female genitalia, which in turn would enable more probative expert evidence. Of course, precautions would have to be taken in order to maintain the anonymity and confidentiality of such images, and supporters of the colposcope drew attention to the logistical concerns
5 STS scholars have drawn attention to the importance of images in scientific and medical work, emphasising the ways in which representations enable work, particularly when the object of investigations is not visible to the naked eye, but also recognising that such images are not the product of ‘natural realism’, but rather are constructed along established disci- plinary conventions (Frow 2012, Lynch 1985). The production of images and the ways that they come to be interpreted can be very important in legal contexts given the signifi- cant power representations have in terms of their ‘visual persuasiveness’ (Burri 2012: 52). The belief that images do portray naturalistic realism gives them the status of objective facts, enabling others, for instance jurors, to see for themselves. Given that images are constructions however, they are also framed with particular meanings, drawing attention to certain aspects of phenomena at the expense of others. As a result images can provide very persuasive evidence (Burri 2012, Jasanoff 1998).
that needed to be overcome in order to enable routine use of the device (e.g., Rogers 1996). However, these difficulties were dwarfed by the ‘bene- fits that will accrue if there are fewer or shorter trials because of the improved quality of the evidence’ (Rogers 1996: 121). For medico-legal practitioners such as Slaughter, Brown and Rogers, the improved illumination, magnifica- tion and recording of the ano-genital region would certainly improve the quality of the evidence that forensic medical experts could provide in rape cases.
Victims and the absence of injuries
A year after the publication of Slaughter and Brown’s article in the American Journal of Obstetrics and Gynaecology, a letter was published in the same jour- nal stating that colposcopy as a routine part of the forensic medical intervention was ‘a regressive step in the management of rape victims whose histories may not be believed unless demonstrable colposcopic injuries are seen’ (Patel et al. 1993: 1334). Patel and colleagues were voicing a concern, growing amongst the forensic medical community at the time, that it was common for victims of rape to report without any signs of injury.
This position was made explicit a year later with the publication ‘It’s normal to be normal’ (Adams et al. 1994). Based on a review of child and adolescent sexual assault cases where the victims had been colposcopically examined shortly after reporting, the authors found that very few of the cases had observable signs of ano-genital injury. While Adams et al.’s study was paediatric, the findings – and, more importantly, the slogan – were quickly mobilised by forensic practitioners primarily concerned with adult examina- tions (Brennan 2006).6
Patel and colleagues were clearly sympathetic (if not pre-emptive) to the idea of ‘it’s normal to be normal’ and feared that the routine implementation of the colposcope would only serve to reinforce popular misconceptions that all victims present with signs of injury, and therefore fail to benefit those who do not have colposcopically observable ano-genital injuries. In fact they went further, voicing concerns that the device could become the arbiter of truth in criminal cases, with decisions over the validity of allegations being decided upon the presence of injuries alone. Lincoln (2001) made a similar argument in relation to resource management. She was concerned with the prohibitive costs of the device and argued that if the colposcope did achieve the ‘gold standard’ many victims would be disadvantaged as some medico-legal teams would be unable to afford it.
6 Although as Brennan notes, the extension of the slogan to the adult cases had taken place ‘without a significant research base’ (Brennan 2006: 195).
Patel and colleagues developed their critique of colposcopy further, argu- ing that its routine application would constitute a second assault upon the survivor by requiring them to undergo an invasive genital examination, potentially against their wishes. They argued that the potential for the survivor to develop (what was then known as) ‘Rape Trauma Syndrome’ as a result of the anxiety caused by a colposcopic procedure should stay foren- sic practitioners’ hands from routinely implementing the technology. Patel et al. thus chose to criticise the routine employment of the device on victim- centric/therapeutic grounds: while the argument was not framed around the provision of therapy, they postulated that routine use of the device could result in further harm, first to survivors’ cases (with the potential for signs of colposcopically recorded genital injury to become the arbiter of rape cases7),
and second to the survivors themselves (due to the possibility of ‘an increase in psychological trauma’ (Patel et al. 1993: 1334)). In opposition to Slaughter and colleagues’ promotion of the device based upon the evidential benefit, Patel et al. advanced a counterargument grounded in the therapeu- tic (or medical) aspects of medico-legal work.
Injur y interpretation
Alongside therapeutic concerns, still more professionals chose to confront Slaughter and Brown in evidentiary terms. In particular, Bowyer and Dalton (1997) were concerned by the large quantity of injuries found in Slaughter and Brown’s (1992) study and questioned whether they were all the result of non-consensual intercourse. The authors cited Norvell et al.’s (1984) colposcopic study of women who had engaged in consensual sexual inter- course six hours before examination and displayed signs of genital ‘microtrauma’. Bowyer and Dalton postulated that Slaughter and Brown had included injuries that were not necessarily the result of non-consensual inter- course including ‘tiny lacerations, abrasions, bruises and swelling’ (Bowyer and Dalton 1997: 619), and challenged the extent to which one could neces- sarily distinguish between ‘microtrauma’ caused by consensual intercourse and injuries that were the result of non-consensual intercourse. In effect, Bowyer and Dalton challenged Slaughter and Brown’s claim that the device would provide more probative evidence of non-consensual intercourse.
Slaughter et al. (1997) attempted to address the question of the relation- ship between injuries and consent in their follow-up study, ‘Patterns of genital injury in female sexual assault victims’. The objective was to ascertain whether it would be possible to identify, colposcopically, a particular injury or collection of injuries specific to non-consensual sexual intercourse. They reviewed the colposcopic recordings of 311 victims and compared them with
findings in 75 women who were examined 24 hours after (what was judged to have been) consensual sexual intercourse.8The study concluded that geni-
tal injury was only identifiable in a small number (11 per cent) of the consensual intercourse sample, while injury was more commonplace amongst the victim sample (89 per cent).
These results led Slaughter and colleagues to assert: ‘Although coital injury seems to be associated with insertion of the penis, its prevalence is significantly associated with a history of non-consensual intercourse’ (Slaughter et al. 1997: 615). They were nevertheless cautious in drawing conclusions about consent from their findings, declaring that ‘Further inves- tigation is needed to determine whether there is a finding or group of findings that can distinguish nonconsensual and consensual activity’ (Slaughter et al. 1997: 615). However, they repeated their recommendation that the colposcope should be routinely used as part of ‘best practice’ for generating forensic evidence in sexual assault cases.