Victoria Donkin, left, and Jacqueline Villeneuve-Ahmed from She Matters, a survivor-focused advocacy group, in Toronto on Nov. 2.Jennifer Roberts/The Globe and Mail
Shortly after Jacqueline Villeneuve-Ahmed launched her advocacy group, She Matters, she received a call from a doctor friend who was working a rotation in a Northern Ontario community.
A young Indigenous woman had been brought to his clinic by police. She needed a sexual assault forensic exam, but the clinic didn’t have any test kits on-site, so they had to send her to a hospital about two hours away. The doctor wanted to know if this was normal.
It was a question that drove Ms. Villeneuve-Ahmed and the team at She Matters to launch a years-long research project, which concluded that sexual assault complainants living in rural and remote communities often don’t have access to the kind of forensic testing that can be vital evidence in a criminal trial.
Now, She Matters is leading a national feasibility study into a novel solution for this problem: self-administered sexual assault forensic swab tests. It’s an idea that has generated interest among survivor-advocacy groups, not just for its potential to improve accessibility, but because complainants may find a self-administered swab to be less invasive.
But the notion of a do-it-yourself forensic test raises thorny legal issues.
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Self-collected samples are already in limited use in some parts of the world, such as Australia. A pilot program was briefly launched in British Columbia about a year ago, although it has since been paused. (After initial consultations, the RCMP decided not to approve the use of the tests, Sergeant Mike Wicentowich of the province’s Trail detachment told The Globe and Mail in an e-mail.)
In Britain, a non-profit group called Enough has made headlines by distributing free do-it-yourself forensic kits to students in Bristol. These tests, which come with an envelope and prepaid postage, can be done at home by a complainant and then sent off to a lab for testing. The company says half of the specimen is then frozen and stored.
Victoria Donkin, a researcher with She Matters, stressed that Enough’s take-home model is not what the organization is considering.
For the Canadian option, these DIY kits would be kept at a designated place within a community, such as a band office or a shelter. With the support of a trained staff member, the complainant would self-swab on-site and then pass off the completed test to the trained individual, who would then give it to authorities.
A central issue for the study, which is being funded by the Department for Women and Gender Equality, is whether this type of evidence would be admissible in court. The research team will consider questions such as whether the support person would need to watch the test being administered in order to preserve the integrity of the sample, or if it would be sufficient to simply be nearby when it’s collected.
“What this project offers is an opportunity to examine a potential protocol to check all the boxes – maintaining chain of custody of the evidence, maintaining the integrity of the evidence – but offering an alternative to where, right now, the survivor has no options whatsoever,” Ms. Villeneuve-Ahmed said.
Jacqueline Villeneuve-Ahmed and the team at She Matters are leading a national feasibility study for self-administered sexual assault forensic swab tests.Jennifer Roberts/The Globe and Mail
But the idea of self-collected evidence raises serious evidentiary questions for legal experts.
Lisa Dufraimont, a professor and associate dean at York University’s Osgoode Hall Law School and an expert in the rules of evidence, said when it comes to physical evidence, the integrity of the evidence is always a major concern.
“Is this item the same item from the scene of the crime?” she said. “That integrity question is whether it’s been altered or changed in some way – intentionally or not.”
There is also the related issue of continuity. Can you account for the evidence at every point as it moves through the system – from collection, to police, to the lab, to the courtroom? Prof. Dufraimont said she would worry that a self-administered test would be vulnerable to challenges from defence lawyers.
However, she said there is no rule against it: “Physical evidence is rarely packaged for investigators in a perfect way. Physical evidence can be found outdoors days later. Someone finds it later in a car.”
Prof. Dufraimont said the more standardized the collection process and the more closely it is supervised by a trained individual, the higher the odds that the evidence will be accepted by the courts.
Defence lawyer Jonathan Shime said he thinks that unless a trained individual witnesses the collection, establishing continuity would be difficult. While the goals of the study are noble, Mr. Shime said, he worries that it could do more harm than good if complainants go through the painful process of a criminal proceeding, only to have the case fall apart because the DNA evidence is ruled inadmissible.
In an ideal world, he thinks the focus would be on ensuring everyone has access to a full sexual assault forensic examination done by a professional.
For Liz Louden, the president of the Canadian Forensic Nurses Association, another problem with a self-administered kit is that it doesn’t include the other aspects of a full forensic exam administered by a trained nurse.
The vast majority of sexual assaults concern an alleged lack of consent – not whether the incident occurred – so DNA evidence isn’t particularly important. In these cases, prosecutors may be interested in other types of physical evidence, Ms. Louden said.
“An examination by a skilled professional may find injuries or internal trauma, which could corroborate a person’s version of the incident,” she said.
Tom Allchurch, the British entrepreneur who co-founded the Enough DIY-forensic kit, said people who are skeptical of self-administered swabs are missing the point. While he strongly believes – and says he has been advised by legal professionals – that there is a path for self-collected evidence to be admissible, that isn’t the only goal.
The Enough team developed their product because the current system is not working, he said. Right now, perpetrators are aware that most complainants won’t go to police, so they have no deterrence.
Mr. Allchurch said they want potential perpetrators to know that if they have sex without consent, their DNA could be easily collected and stored in a data bank in case the complainant ever wants to pursue charges.
“The goal is not necessarily criminal justice. This is for people who don’t want to go into the criminal justice system.”
For a complainant who wants to go through the criminal process, Mr. Allchurch said the non-profit advises individuals to contact police and undergo a full forensic exam.