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November 14, 2018

Why justice is elusive for many rape victims

Karen Naimer
Karen Naimer

Justice continues to elude many victims of sexual violence in Kenya.

Despite efforts to support legal redress for survivors of the 2007-08 post election sexual violence, including those that endure day to day sexual violations, impunity still abounds in the management and response to these grave crimes, making it difficult for survivors to get justice and reparations.

Failure to prosecute perpetrators, even in situations where they are known, and where circumstantial evidence is available, is perhaps the biggest headache that authorities are grappling with. To a survivor who has endured a rape ordeal, the least she can expect is a working system right from the police station where she reports her case, to the hospital where evidence is gathered, all the way to the courts of law.

A senior prosecution counsel dealing with sexual offence cases in the office of the Director of Public Prosecutions says although there is enough legislation in place to deal with sexual crimes, perpetrators slip away easily. Kenya’s Penal Code and the Sexual Offences Act, and the entire legal system, is formidable. However, says the official, the medical-legal mechanisms of mitigating sexual violence are still docile.

Lack of forensic expertise among the main service providers in the medical-legal sectors is the key missing link that gives criminals an escape route. There is a critical gap in the collection and documentation of medico-legal evidence, a key element of response to sexual violence cases which prosecutors and judges heavily rely on in adjudicating these cases: “How can we improve accountability and in fact address impunity for these crimes if we are missing adequate evidence to sufficiently push these cases forward?” asks Karen Naimer, director, Program on Sexual Violence in conflict zones under the US based Physicians for Human Rights.

The Kenya’s Sexual Offenses Act of 2006 criminalises sexual violence. Therefore, forensic evidence is crucial to prove a rape crime has been committed “beyond reasonable doubts”.

 

Challenges

The first crucial responders to rape survivors — clinicians and the police — receive little or no training in the forensic collection and documentation of evidence. In Kenya, very few hospitals have invested in forensic laboratories. Therefore, DNA evidence is not well gathered and stored effectively after a rape or sexual assault is reported. DNA testing, which offers 100 per cent evidence due to its accuracy, is currently only available at two hospitals, both situated in Nairobi.

Doctors and nurses lack the requisite skills and equipment to collect, document and preserve samples like semen and blood from a rape survivor, which are key forensic elements in such cases. Additionally, in most hospitals, there is no specialised unit for sexual violence. Survivors are therefore attended to by any practitioner regardless of whether they are trained on forensics or not.

Another major hiccup is in the filling of the medical evidence in the Post Rape Care (PRC) form which clinicians use to document the injuries sustained by the survivor, history, and any samples collected from a victim. A spot check in various medical facilities revealed that many nurses have never seen a PRC form and those who have, do not know how to fill it. At Nairobi’s Mbagathi Hospital, a nurse revealed that the process of filling the PRC form is a lengthy one which most nurses abandon half way to attend to other patients. This poses a problem to the police officer handling the survivor as he does not know what to fill in the blank spaces.

“When components of the medical certificate are left blank, clinicians do a disservice to the survivor who is trying to pursue a legal claim as the court and defence counsel may seize on the opportunities to poke holes in the prosecution’s case,” laments a police officer dealing with sexual offenses.

From the legal front, most police investigators are incapacitated in the field of conducting proper forensic investigations involving rape cases. Majority are not trained in collection of DNA samples from the crime scene and this could be either from suspects of rape or the victims themselves. Items such as the victim’s inner garment may contain key evidence that can link a perpetrator to the offense, but the skills in the collection and proper packaging of this evidence are wanting.

A police corporal attached to the Criminal Investigations Department in Wajir County weighs in on the importance of collection of forensic evidence among police investigators: “DNA evidence is an integral part of police investigation of a rape ordeal because it can build a strong case to show that a sexual offense indeed took place. But expertise is lacking,” he told this reporter in a recent interview.

“We say a case is won or lost at the investigation stage; if proper investigations are not carried out by the police, prosecutors cannot ‘manufacture’ evidence,” adds the prosecuting counsel, saying evidence is so hard to come by and this makes it hard for them to build a case which would ultimately lead to a conviction.

Police investigators are challenged when it comes to preserving physical evidence. They lack adequate storage facilities. My interaction with several police officers dealing with rape cases reveals that most police stations may have exhibit stores but with very limited capacity which often results in loss, mix up and contamination of forensic evidence stored therein.

In Kenya, magistrates and judges adjudicating these cases are not trained either on the medical-legal evidence tabled before them. In many instances, the analogy of a “broken hymen” is used to conclude that a rape offence occurred. In cases where a government doctor does not prove a broken hymen from a survivor and at the same time lacks the forensic back up to prove his case, the judge will have no option than to release the perpetrator, hence blocking justice for the survivor.

A former magistrate at the Naivasha Law Courts adjudicating sexual offence cases says most magistrates are frustrated by the medical jargon used by doctors in the court room. “A case may be lost because the judge does not understand the kind of evidence the doctor is tabling, because he is using very big medical terms which we do not understand, hence the case becomes weak and the suspect is released.”

The adjudicating officers also cry foul on some missing crucial details in the medical certificate (PRC), for instance when clinicians fail to document the history of the victim, complicating the work of the judge. The magistrate from Naivasha expressed frustration from the police investigators who bring files that are missing crucial elements, for example, the key evidence from a crime scene. He says it would be beneficial if a police officer included a sketch, photographs as well as details of what was found at the crime scene.

A magistrate from Kisumu says a case would be strengthened if prosecutors included more information concerning the crime scene by working directly with the police.

Another significant gap is the lack of measures to ensure confidentiality and protection of chain of custody for obtained evidence, including lack of specific forms to record transmission of evidence from one sector to another. There is limited training within the police stations and hospitals on how to maintain this chain, as several people can take custody of this evidence. More often than not, law enforcement may be susceptible to corruption, resulting to frequent withdrawal of cases because physical evidence can always “disappear”.

A DNA forensic analyst at the Government Chemist based at the Kenyatta National Hospital says one of the biggest challenge in mitigating sexual violence is the lack of a criminal DNA bank for sexual offenders, although it is provided for in the Sexual offences Act.

“We rely totally on comparison process that is, where there is a suspect, DNA samples are taken from the suspect and compared to one from a crime scene and if it’s a sexual offence that leads to pregnancy, DNA samples are taken from the parties concerned. Echoing this frustration, a judge from Kapenguria Law Courts admits that the Kenyan judiciaries lack a data bank for storing DNA and blood group of sexual offenders. Without this crucial facility, the judge says suspects are likely to repeat their offences because there are no previous records of their crimes: “They are usually treated as first-time offenders.”

Section 39 of the Sexual Offenses Act of 2006 places the onus of keeping a register and a data bank of convicted sexual offenders on the registrar of the high court but the judicial and prosecutorial systems are yet to conform to the requirements of this Act.

According to the government analyst, though staff working in the government chemist labs meets the minimum qualification to work in a forensic lab, there is not adequate training on how to handle and analyse forensic evidential material.

“I am not aware of any medical facility that is training personnel on handling of forensic evidential material. This knowledge is limited in Kenya.”

Other challenges that forensic analysts face include poor crime scene management by the police investigating sexual crimes, hence poor quality of evidential material submitted.

There is also inadequate storage space for evidential material at the lab which also means that the chain of custody of evidence is not fool proof: “Someone may tamper with evidence without their knowledge. It is a key issue during the trial in court.”

 

Lack of co-ordination

Besides the forensic incapacitation among crucial stakeholders handling sexual violence, the biggest bottleneck is the lack of a coordinated approach among crucial actors. Each sector works in isolation, independent from each other. In Kenya for instance, there has not been coordination of individual cases of sexual violence where such cases are referred from one sector to the next. There is also the lack of clarity on the specific roles and responsibilities of providers within the sector, including how doctors and nurses are supposed to communicate with police to help survivors report cases and whether or not it’s the doctor’s job to ensure that the medical certificate is properly filled with the police. This lack of networking diminishes the chances of sealing potential loopholes before a case is presented before the judge. One sector blames the other for “not doing their job properly” because there was no coordination from the start. In the end, securing justice for a survivor becomes difficult.

For instance, when a police officer collects an inner garment of a rape survivor in a crime scene, they may not know that they need to take it to a medical doctor for samples like semen to be collected and documented. Similarly, police and clinicians do not work hand in hand with the prosecutorial authorities in trying to analyse the evidence that needs to be presented before a judge.

A doctor at Kenyatta National Hospital says: “We are ignorant of what our other colleagues in other sectors are doing yet we are working with them towards bringing justice to these sexual offense victims.”

An advocate based in Eldoret and working as a legal aid officer on sexual offenses says a survivor is overburdened by all the processes she has to go through and ends up feeling victimised.

 

Intervention

As efforts to support legal redress for survivors of sexual violence intensify in Kenya, one organisation has come in handy to seal these obtrusive gaps that exist in the management of and response to sexual violence.

Physicians for Human Rights (PHR), an international NGO that uses medicine and science to stop mass atrocities and severe human rights violations, is implementing the Programme on Sexual Violence in Conflict Zones.

It is working to improve the abilities of the health and legal communities to build prosecutions of sexual violence crimes by increasing the local capacity for the collection, documentation, preservation and application of court admissible evidence of sexual violence.

In Kenya, the programme has specifically launched a series of cross-sectoral, collaborative forensic training workshops as well as forging coalitions among members of the health care, law enforcement, forensics, and legal communities in different parts of the country with the aim of dramatically increasing local capacity for the collection of court-admissible evidence of sexual violence to support the future prosecution of these crimes.

Christine Alai, the Kenyan programme coordinator, says as much as the trainings are helpful, collaboration among sectors is vital. “Enhanced capacity in and of itself would be futile if the professionals working within all relevant sectors do not collaborate to ensure that the quality of evidence is maintained throughout the care and justice chain, starting from when the survivors report to medical facilities for treatment, to the investigations by law enforcement officers and adjudication in the courts.”

She adds that survivors are assured of justice, when skilled professionals involved in the identification, collection and handling of forensic evidence have a shared technical and victim-centred understanding, and are able to develop and implement relevant tools and protocols to protect evidence as it moves through the justice chain, from one sector to the next.

Karen Naimer says one of the innovations PHR is bringing to the table is to sensitize everyone on their roles and responsibilities and what they can expect from their counterparts from others sectors. She says the training is a stepping stone, a launching pad for building of long term sustainable relationships between and among stake holders. But the important work happens after the trainings.”

 

Practical trainings

In October 2014, PHR organised a three-day forensic training workshop for the medical-legal sector including community health workers, counsellors, paralegals, child protection officers, all drawn from various localities. 

The organisation gave hands-on skills to different stakeholders to help enhance their capacity in the collection and documentation of forensic evidence to aid a survivor achieve justice in court. Among the skills they learnt included evidence collection, documentation, labelling of exhibits in the Chain of Custody form and preservation; documentation of information in the PRC and P3 forms, interviewing skills for clinicians and police investigators, data analysis, trial process (victims and witness protection) and also what judges look for in the evidence. There was also a module which explored the respective roles of the health, legal and law enforcement - in responding to sexual violence, the goals of cross-sectoral collaboration and the importance of an effective community response.

An elated police officer from Kariobangi police station said the most important skill he was taking home was the packaging of evidence. “Today I have learnt on the proper packaging of evidence, the kind of knowledge I lacked as a police investigator.”

He lamented how police dealing with sexual offenses lack the necessary papers to package evidence and thanked PHR for availing them with the brown khaki envelopes and the chain of custody forms. “I will use these materials to train my colleagues at work.”

 

Taking stock, one year on

Last month, one year after the training, this reporter caught up with several participants who have benefited from PHR’s past trainings. They highlighted some important outcomes from the training including an understanding of the expectations and challenges they encounter in their respective sectors and how they have been able to harmonise their roles in order to help seek justice for survivors of sexual violence.

“I now know how to conduct proper forensic investigations in a crime scene including how to conduct interviews with survivors of sexual violence,” revealed a police investigator attached to the gender and child protection unit at Nakuru Police Station. He has gained confidence on how to present evidence in the court room.

A nurse at the Kayole II District hospital recently attended PHR’s refresher course on how to fill the PRC form. She too had been trained in 2014. She admits that she can now confidently fill the PRC form. “PHR trainings have made me get closer to my patients; initially I handled them with a lot of ignorance or referred them to other nurses.” In this refresher training, as is other past trainings, she mingled with police officers and this has enabled her remove phobia from the police. “Previously anything to do with the police, I could not go near. I even used to discourage my patients a lot telling them to brace for a long journey with the police. But since I started coming for these trainings, I do not detach my patients from the police, in fact I encourage them and tell them they are in the right route.”

A DNA analyst with sexual offenses cases at the only government chemist in Nairobi, who was first trained by PHR in 2014 on exhibit collection and samples, lauds the organisation for imparting her with skills and knowledge that she hitherto lacked. “The kind of training PHR offered me is not being offered by the government. In the latter, we are just thrown in the field and told to learn on the job. We lack the expertise hence our knowledge is very limited."

One of the most notable success stories of these trainings and collaborations, she says, is the actual networking among crucial actors. “When participants went back to the field, there was a great improvement in the first few months. The police and doctors took time to actually call us and ask, 'I have these samples, what do I bring, how do I dry them, do you need any other exhibit?' For me it was very interactive.”

She says their cases were more solid and compact than before because they were not encountering loose ends everywhere. With time, the chain of custody got tighter and tighter and this has enabled survivors to start getting justice from the courts.

 

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