Expert says genital injuries don’t indicate consensual sex

Tuesday, July 11, 2006
Witness: Raquel Fortun, forensic pathologist

An expert witness testified today that injuries on Nicole’s genitalia do not indicate consensual sex.

Forensic pathologist Raquel Fortun confirmed an earlier testimony of Dr. Rolando Ortiz, who had examined Nicole, that the injuries of the complainant were “consistent” with her claim of sexual assault.

As prosecution witness, Fortun was made to render her opinion on the findings of Ortiz’s examination of Nicole, and of the Philippine National Police crime laboratory’s report on the absence of semen in Nicole’s panties and on a used condom.

“Contusions on both sides of the labia minora indicate an injury due to a blunt force… probably the forcible penetration of the opening of the vagina with a blunt object, normally, an erect penis,” she said.

Citing several books and journals that she brought with her to the stand, Fortun said that although getting bruised during consensual sex is possible, it is still “unusual” because a woman usually positions herself to avoid being hurt during intercourse.

Fortun said a “relaxed and not resisting” woman would angle or tilt her pelvis so as to be “receptive to the thrusts of a penis.” Fortun added that a woman’s genitalia would get naturally lubricated, thus easing penile penetration.

Reading off the book “Color Atlas of Sexual Assault,” Fortun said “human sexual responses,” like those mentioned, prepare individuals for “non-traumatic intercourse,” but these are “typically absent in sexual assaults”.

When asked for her opinion about the “unusual tenderness” that Ortiz observed in Nicole’s vaginal walls, Fortun said it could be caused by an internal contusion or injury.

Meanwhile, Fortun expressed doubt about the report of the PNP crime laboratory. She said the test that the lab used for semen detection is “very, very old” and is “no longer used in modern laboratories”.

The PNP crime lab used the Florence test to examine Nicole’s underwear and a used condom, which were both negative for semen.

Fortun explained that modern literature on forensics no longer mentions the said test. Even a book published in 1952 states that the Florence test is “nonspecific and non-sensitive”. It is deemed “unreliable” and sometimes yields “false results”.

A heated debate ensued when defense lawyer Jose Justiniano, counsel for accused Lance Corporal Keith Silkwood, rose and accused the prosecution of “impeaching the PNP crime lab report” and of “suppressing evidence”.

Private prosecutor Evalyn Ursua retorted, saying it was actually the defense that was “suppressing the truth about science”.

Ursua said she just wanted the doctor to explain that the test was “antiquated” so the court would be able to appreciate the significance of the document in question.

Justiniano exclaimed that “it is unfair to the police officer who made the report to be considered an ignoramus just because this doctor (Fortun) says the method he used is already obsolete.”

At this point, Judge Benjamin Pozon of Makati Regional Trial Court branch 139, banged his gavel and ordered a recess.

After the 40-minute break, Fortun continued her testimony and explained to the court why both specimens, the condom and the underwear, lacked seminal stains.

“The semen could really be absent, or it could be that it was just not detected,” she said.

Fortun said factors such as the technique used in collecting and the procedure done to detect sperm could have affected the findings of the report. She added that various transfers and handling could have contaminated and degraded the evidence.

She also admitted that it was difficult to evaluate the lab findings on the condom because “it had no description of the condom, no indication of what part of it was analyzed and the test used was unreliable.”

Fortun further said that ideally, the condom should have been recognized and collected as evidence, properly handled, placed in a clean, sealed and labeled container and refrigerated.

She told the court that sampling must be done both inside and outside the condom, and the test used to examine it must be reliable.

The sample should also be immediately submitted for examination because the cut-off time to test for sperm content is 72 hours. The longer the delay, the more the specimen degrades, she said.

As for the underwear, Fortun said its lack of seminal stains could be explained by the use of a condom by the accused. Seminal ejaculate could have been deposited in the condom.

Meanwhile, Fortun said that based on Ortiz’s description, the bruises on Nicole’s arms and legs were probably caused by a blunt, rounded object such as a “fingertip”. These were “consistent with the alleged circumstances,” she added.

Judge Pozon interrupted Fortun and advised her not to make reference to the alleged crime when interpreting the findings of the medico-legal report of Ortiz.

On cross-examination, lawyer and physician Antonio Rebosa, counsel for accused Lance Cpl. Dominic Duplantis, tried but failed to establish that Nicole’s whitish discharge that Ortiz noted indicated an infection.

In direct testimony, Fortun said that it is normal for women to have a whitish discharge.

Rebosa also asked the Dr. Fortun about the possibility that, having lacerations in the genitalia, Nicole could be in a “non-virginal state” or had had previous sexual intercourse.

Ursua objected, saying that a woman’s virginity does not prove or disprove sexual assault, and that even marital rape is recognized in Philippine law.

Pozon, however, allowed the question.

Fortun answered that doctors do not use the term “virginal state” in their medical findings. She added that the condition of the hymen does not indicate a woman’s virginity.

“Even young children and (sexually) inexperienced women have been found to have notches, which, to an examiner, may be misconstrued as an indication of sexual activity,” she said.

Fortun further said that it is no longer valid to regard the hymen’s condition as indicative of a woman’s sexual activity.

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