‘It is Not for Me to Say Whether Consent Was Given or Not’: Forensic Medical Examiners’ Construction of ‘Neutral Reports’ in Rape Cases

Abstract

Attrition rate studies have outlined the role the ‘real rape’ stereotype plays in prosecutor decisions concerning the progression of rape cases through the criminal justice system. According to the ‘real rape’ stereotype, the victim should attend the medical examination with significant physical injury, and therefore police, prosecutors and jurors take injury evidence into consideration when deciding the veracity of the complainant’s allegation. However, forensic medical studies have shown injuries to be rare, and even when present, consent cannot be dismissed. To this end, in nearly all cases Forensic Medical Examiners (FMEs) produce ‘neutral reports’; reports that neither confirm nor deny the complainant’s allegation. In this article I explore FMEs’ justifications for neutral reports, and find that their production reinforces FMEs’ expertise. FMEs construct boundaries, distancing themselves from contentious issues. While such boundaries ensure authority, they limit evidential significance, which in turn provides a space for the prosecution to dismiss evidence that does not conform to the popular understanding of rape. Such a ‘vicious cycle’ of prosecutorial decision-making removes the opportunity for FMEs to explain the limits of injury evidence to the police, prosecutors and the jury and reinforces the belief that injuries are a necessary outcome of rape assaults.