How to build a rape case: From gathering testimonies to collecting forensic evidence

When former radio host Jian Ghomeshi was acquitted of all charges in a high-profile trial in March, the Canadian judge wrote, “The evidence of each complainant suffered not just from inconsistencies and questionable behavior, but was tainted by outright deception.” He also suggested that willful deception was to blame rather than faulty memory, according to CNN.

The verdict sparked protests all over Canada. Women posted on social media with the hashtag #IBelieveSurvivors and #BelieveWomen. “We live in a rape culture where we’re taught that sexual violence is accepted and expected,” one woman said at a Toronto rally protesting the verdict. “Our culture is one where survivors of sexual violence are blamed or ignored for coming forward with their stories, which is never okay.” 

But the Ghomeshi trial did something important, if unexpected, for women: It highlighted what survivors all over the world have to face just to tell their story. Women who have been raped often don’t speak out, fearing a backlash. Survivors of rape and sexualized violence everywhere are re-victimized by the shame and stigma forced on them in cultures that place blame on them and ignore the perpetrators.

While the significance of having a rape survivor’s story heard cannot be underestimated, investigators, police, and NGOs gathering testimonies need to take particular steps to get each experience right, according to experts. And in an unstable conflict situation, doctors, investigators, and others gathering stories of rape face particular challenges.

Speaking with survivors
Way before the investigations even begin, one of the biggest struggles lies in getting the survivor to come forward.

Karen Naimer, director for U.S. advocacy group Physicians for Human Rights’ program on sexual violence in conflict, says that ongoing trauma or stigma is one of the biggest challenges in getting a survivor to report an assault—before even other logistical obstacles, like access to health facilities that are days’ away or don’t exist.

Survivors are generally “not kept informed,” Naimer says, about the way or timeframe in which the medical or legal processes are likely to unfold. “People lose morale—they lose a sense of their own worth in the process—because they don’t know the system.” She stresses that having a caseworker who knows the process and can help the survivor navigate the system can make all the difference.

Often, Naimer says, the families of survivors in conflict areas, such as in the Democratic Republic of Congo, gravitate to local chiefs or authority figures who tend to be part of an informal local justice network. A negotiation to bring a kind of justice for the crime takes place, involving marriage (of the survivor to the rapist) or payment of goods or money. “The problem here, of course,” Naimer says, is that while “it may help the family, it does very little to help the survivor.”

For the survivor of rape or sexual assault, the process of seeking justice or any kind of redress often means the prolonging of trauma. It is not uncommon for a survivor to be asked to relive the attack repeatedly, again and again relaying the full story in excruciating detail to medical examiners, police officers, local authorities, lawyers, and investigators. And while the intricacies can vary greatly from country to country, the process runs the risk of retraumatizing the victim, all in the hope of pursuing a prosecution and bringing a perpetrator to justice.

Erin Gallagher is all too familiar with the difficulties in collecting these types of testimonies. Now a criminal investigator for The Hague, Gallagher has previously worked as a criminal investigator in the U.S. and at the International Criminal Tribunal for the former Yugoslavia. She also spent nearly two years with the New York-based Physicians for Human Rights as their director of investigations. In many conflicts, she says, the initial challenge is simply finding survivors who are willing to speak. Then, once they have come forward, patience and sensitivity are key.

“The first crucial thing to do is to explain who I am, why I want to speak with them, and what it means to speak with me,” she says. She also clarifies for survivors “what’s going to happen to their story, can they trust me, and to ensure that they trust and understand what I’m going to do with their story.”

Gallagher says the interview process begins with the investigator asking questions to ensure that the survivor understands what is going to happen and is comfortable speaking while the investigator takes notes or records the interview. After providing a framework for the process, the interviewer asks about the individual’s life prior to the attack and then slowly moves toward asking about the attack itself. Building a rapport is crucial. Gallagher says she tries to avoid interrupting the story unless it’s absolutely necessary since the survivor is being asked to share something so painful and personal. “If things get a little uncomfortable, I’ll try to say something like, ‘I’m sorry to ask you these difficult questions. We’ll get through it,’ or I’ll apologize that I need more details.”

Investigators are usually also looking for signs of order or organization for an indication that the rape or assault was part of a larger policy. These critical details can lead to charging rape as a war crime or a crime against humanity. But teasing out this kind of information requires specific and detailed questions—What kind of language did the attackers use with each other? Was there a leader giving orders? Did they wear uniforms or carry cellphones or weapons? Did the attackers know the survivor’s father or brother? Was the survivor a member of the opposition and did the attackers know that?

“I’ll ask, ‘Why did they target you?’” Gallagher says. “And many times they’ll know full well.”

Once the survivor has reached the end of her story, Gallagher says, the focus of the interview turns to the impact the attack has had, in terms of an injury or psychological trauma. She says she asks whether anyone knows the survivor is speaking to her. In some cases, if the victim has not yet told her husband or her family, they develop a cover story together so as not to jeopardize her safety or confidentiality.

Gallagher says that at the beginning of an investigation, she will often spend a lot of time meeting with local organizations, hospitals, doctors, nurses, and the like, working to build relationships and trust with these members of the community. She does this because not only are these likely to be the people who will be able to help her identify victims but also so that she knows where she can send a survivor after the interview process is over. 

But most of all, she is careful to take her time. “Talking to me might bring up a lot of memories and flashbacks,” she says. “The ending of the interview is incredibly difficult and incredibly important.”

The importance of good first responders
Naimer says that oftentimes the survivor will first go to the police or a medical facility to report the attack before an NGO or international investigator makes their way toward their city or village. This can very much impact how the pursuit of justice will unfold, she says. “If they go somewhere with good advice, it sets them up to succeed.” Success, in this case, could mean seeing a medical professional who is both knowledgeable and equipped to perform a comprehensive exam, or giving a statement to a police officer who has been adequately trained.

This is why Physicians for Human Rights is doing work in Kenya and DRC to train the types of first responders on which investigators rely. These investigators depend on comprehensive medical exams, thorough data collection, and careful gathering of testimony by doctors, nurses, police officers, and other first responders to ensure that they can adequately investigate the crime. When gathering possible evidence for prosecution, communication across the groups involved—whether medical experts, law enforcement, or civil society—is crucial. “We train them, ensuring they are giving proper care, doing a proper full medical exam, that they are able to identify any injuries, and that they can give a full mental health assessment,” Naimer says.

She emphasizes that there is no one body or single weak link to blame for breakdowns in the slow march toward prosecution, like bureaucratic delays or a lack of proper or functional equipment including rape kits or medical supplies. Even when there are well-trained personnel in place, clinics are often under-resourced, and police often underfunded in a way that impedes their ability to do their work.

“We try to build from the trainings a network of first responders, so that they can communicate with each other on where some of the blockages are happening,” Naimer says. “Without that communication, suspicions start to build, and there’s a failure of trust, and things start to crumble.” 

Suspicion on the part of survivors is perhaps a natural byproduct of a system thoroughly lacking in transparency. Even when initial procedural steps are followed, it is often unclear whether the lack of progress in a case is a result of simple ineptitude or a complete lack of political will. A case could be brought to a standstill without any meaningful explanation, ultimately leaving survivors in the dark—despite the courage it took to come forward.

Naimer says that while PHR trains first responders in using best practices—including conducting complete comprehensive exams and using interviewing techniques that would be admissible at the International Criminal Court and other similar tribunals—they always keep in mind the resources in the communities in which they work. For instance, she says, “we wouldn’t train on using DNA analysis in Democratic Republic of Congo, when they don’t have the means there to do that.” But, she adds, “You don’t need fancy resources to interview a survivor in a respectful, confidential, and private manner, following guidelines like those set out by the World Health Organization. We are very mindful of the resources available in these communities and we train colleagues on how to most effectively deploy the tools they have while meeting international best practices.”

A 2004 joint publication by the WHO and the United Nations High Commissioner for Refugees called “Clinical Management of Rape Survivors: Developing protocols for use with refugees and internally displaced persons” provides a framework for best practices in clinical responses to rape victims of any gender in emergency situations. The document, written for use by health care responders, outlines the steps in performing a thorough physical exam, effectively cataloging the findings, and providing medical care or treatment to a rape victim. It also outlines how to interview survivors, dovetailing with what Gallagher does in her work. 

In terms of collecting forensic evidence, the guide emphasizes that the main purpose of the examination of the survivor is to “determine what medical care should be provided. Forensic evidence may also be collected to help the survivor pursue legal redress where this is possible. The survivor may choose not to have evidence collected.”

And, critically, it says, “Respect her choice.”

In June 2014, an international protocol, the first of its kind, was launched at the Global Summit to End Sexual Violence in Conflict in London, which was co-chaired by then-UK Foreign Secretary William Hague and actress Angelina Jolie, who is a special envoy for UNHCR. The protocol included basic standards of best practice in documenting sexualized violence as a crime under international law. Unlike the WHO/UNHCR guidelines, which are meant for health care providers, the protocol was drafted for use by human rights and justice actors, while also recommending capacity-building “efforts for national and local security, judicial, law enforcement, forensic medicine and science, and investigative institutions aiming to improve their understanding of how to collect and document information on sexual violence as an international crime.”

The protocol makes clear that while the primary responsibility for sexualized violence crimes should belong to the state, it suggests that well-trained practitioners can step in as an alternative when “national institutions are unable, or unwilling, to investigate and document crimes of sexual violence” or “when national definitions of sexual violence are restrictive, or domestic remedies are exhausted.”

Building as strong a case as possible
Beyond gathering the survivor’s testimony, in order to build a legal case, Gallagher says, investigators try to locate witnesses or document evidence—videos, photographs, or any sort of record that corroborates the story. “Another important element is to find insider witnesses,” she says—someone from within the perpetrator group or with inside knowledge of that group, who is in a position to speak to what the group was doing or how it operates. This adds a layer of knowledge that can shore up accusations against a perpetrator.

This is echoed in the 2014 international protocol document, which states that “not only is the site of an attack useful as a potential source of valuable physical evidence, but [it] can help to establish the presence of alleged perpetrators in the area, and be analyzed as part of the pattern of movement of the alleged perpetrators.” The site, it explains, may help corroborate a story or hold other physical data—clothes, bullets, weapons, or other material evidence that a crime took place. The protocol also highlights the significance of documentary evidence such as photographs or video footage, police, military, or prison records, or even reports or data gathered by local NGOs. There are even groups today working with satellite imagery to follow troop movements in a conflict area such as South Sudan, adding high-tech proof to allegations of an attack on a particular village, and on women.

After the case is built sufficiently, there will come an indictment, then an arrest, and then a legal window of time in which the trial should begin. During that period, the investigators must share everything they have collected with the defense lawyers and ensure the victims and witnesses are safe. But while it may seem straightforward, the timeline for this process is far from predictable. And so is the outcome.

In some cases judges are unable to convict due to a lack of good evidence, as DRC’s Colonel Magistrate Freddy Mukendi told WMC Women Under Siege in January. Mukendi tried the country’s infamous Minova rape trial, in which 39 soldiers were charged but only two convicted in the rapes of at least 76 women. “The evidence against those who were brought before us wasn’t enough,” Mukendi said.

With so many hurdles in place—between possible retraumatizing of survivors, a lack of places to go for help, and well-trained people to give that help, it can be surprising that satisfying convictions ever happen at all. Fortunately, however, they do, as in the recent ICC conviction of Jeanne-Pierre Bemba, DRC’s former vice president, who was found guilty in March of having had command responsibility for mass rapes in the Central African Republic in 2002-2003.

Naimer, despite all the obstacles, is optimistic: “I’m so inspired by the people we work with in these countries.”

But still, the process is still painstaking, with people like Gallagher traveling the world to gather one difficult testimony at a time. For many survivors who do come forward and share their stories, there is no guarantee that justice will be quick, happen in their own lifetime, or happen at all.