To Test or Not to Test

A woman is found unconscious without pants or underwear. She is intubated and brought to the ED, where a physical exam suggests she has been sexually assaulted.

She is without identification and family cannot be located. She lacks decision-making capacity because she is unconscious. Conducting a rape kit exam without consent raises legal and ethical concerns. But failure to use a rape kit in a timely manner may render evidence impossible to collect or unreliable in court. Is it ethical to conduct a rape kit exam on this patient without her consent?

A sexual assault forensic exam, sometimes called a “rape kit,” preserves DNA as well as other physical evidence. It may include a full body examination, including internal examinations of body orifices.

To be viable, DNA evidence needs to be collected within 72 hours, but survivors may decide to report a sexual assault immediately or at a later time.

Rape kits increase the likelihood of prosecution and also provide medical care for injuries, sexually transmitted diseases, and emergency contraception.

What are the reasons we would not perform the forensic exam?

The primary reason not to conduct the exam is the value of autonomy (right to self-determination), which means patients must consent to receiving medical care.

The need for consent can be waived in urgent, life-threatening situations, but a forensic exam is not medically necessary or life-saving.

Another consideration is that just 31 of every 100 sexual assaults are reported to police, per Bureau of Justice statistics. Of those that are reported, most will not result in an arrest.

If, like the majority of survivors, this patient chooses not to report her assault, performing the exam might be a second non-consensual invasion of her body, as well as an unnecessary collection of evidence. This runs counter to the dictate “do no harm.”

Michael Arenson has a master’s in bioethics from Emory and is a current medical student. “You Be the Ethicist” is based on real Emory cases, with some details changed to protect patient identity.

What are the reasons we would perform a forensic exam?

Doing so might provide the patient the option of pursuing legal action later.

The patient is currently unconscious and thus, unable to make an immediate decision about reporting the assault to law enforcement.

Would it be fair for her temporary loss of capacity to permanently eliminate this option? Performing the exam would in this situation seem to be in line with our ethical value of justice (each patient being offered commensurate care).

Ultimately, the ethics committee and the medical team decided to delay the forensic exam to allow as much time as possible to find a relative or surrogate who could advocate for the patient’s wishes.

If a surrogate could not be found or legally appointed within the 72-hour window, they agreed that a forensic exam should be performed before this critical time period ends.

This allows the patient the ability to make a decision about legal action if or when she is ready.