How Do Police Find Evidence for Rape?

June 30, 2022 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

If there was an accusation of sexual battery or rape, law enforcement is required to investigate for potential evidence. In some cases, victims of sexual battery will immediately call the police, and get a sexual battery forensic exam. However, this is not always the case. There are instances in which the only evidence is the victim’s statement.

Sexual battery is taken very seriously in Florida, and if convicted can result in harsh consequences. This includes fines, probation, jail time, and even the sexual predator registration if the accuser is under 18-years-old.

If you or a loved one have been accused of sexual battery, your first step should be reaching out to a skilled defense attorney in your area. It is also important to fully understand the type of evidence that can be used against you in a sexual battery case, and how exactly the authorities can obtain it.

Sexual Battery in Florida

Under Florida Statute Section 794.011, sexual battery refers to any “vaginal, oral, or anal penetration, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.”

Charges for sexual battery can range in severity, depending on several factors. If a person over the age of 18 is accused of sexual battery against another person who is 12 years of age or older without any violence or physical force, they can face a second-degree felony.

If the defendant accused of sexual battery was 18-years-old and did not use or threaten to use a weapon or severe force against a victim over the age of 12, it can be considered a first-degree felony. At least one of the following circumstances must also apply for the accused to face the first-degree felony:

• The victim could not resist and was helpless
• The defendant used coercion to force the victim to submit, by threatening use of a weapon or deadly force, and caused the victim severe physical injury
• The defendant used coercion to force the victim to submit by threatening retaliation against the victim or another individual
• The defendant had knowledge that the victim received an intoxicating substance such as a narcotic or anesthetic to mentally or physically incapacitate the victim without their consent or knowledge
• The victim is mentally defective, and the accused has a reason to believe that the victim is mentally defective or has knowledge of the fact. “Mentally defective” under the law means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.
• The victim was handicapped or physically incapacitated
• The defendant was in a position of control – including a police officer, correctional officer, probation officer, or any other person in a position of authority in a community-controlled environment

More severe charges can occur if the victim of a sexual battery case under the age of 12-years-old. If the defendant is 18-years-old and the victim was under the age of 12, then it is considered a life felony. It is also considered a life felony if the defendant uses a weapon or deadly force, regardless whether the victim was below or above the age of 12.

To read more about the various types of sexual battery and its penalties, find our page here.

Types of Evidence in Sexual Battery Case

In a sexual battery case, there can be multiple forms of evidence. The most common and potentially the most useful is biological evidence, such as DNA found in semen. This type of biological evidence can be found if the victim has a sexual assault kit performed by a nurse after the rape.

There are also other forms of evidence that can be used in a sexual battery case. The following is a list of examples:

• Fingerprints
• Impression Evidence (shoeprints)
• Trace Evidence (Hairs/Fibers)

If there is no possible physical evidence or DNA evidence, the police will have to rely on other forms of evidence. It is difficult to just use the common “he said, she said” rule, since it is only putting one person’s story against the other’s. It is helpful if the police can find eyewitnesses, an alibi, or argue the consent of the victim by admitting evidence that establishes a behavioral pattern of the victim which is similar to the conduct during the accused sexual battery case.  

Sexual Assault Kits in Florida

A sexual assault forensic collection (often referred to as a rape kit) is a physical test to gather evidence that has been left in or on the body following a sexual assault. While rape kits cannot help in determining whether or not the sex was consensual or not, the kit can show if the person had been penetrated by another person or object. If the person accused of sexual battery is already in the authority’s system, police can then match the DNA and use it as a prime source of evidence. After a sexual assault has occurred, the victim has up to five days (120 hours) to go get tested and collect such evidence.

Unfortunately for decades, evidence including blood and semen has been collected through rape kits in a physical exam, but gets set aside or lost. This has left many sexual assault cases unresolved. This was until Gail’s Law was passed by Florida Legislature in 2021.

Codified under HB 673, Gail’s Law focuses on the DNA evidence that is collected in a sexual battery case. The new law will now require the Florida Department of Law Enforcement to create and maintain a statewide database for tracking the following:

• Sexual assault kits (rape kits)
• Creating and providing database requirements
• Ensuring that the victims and other persons have access to and are notified of any information regarding the evidence
• Providing the requirements

The bill was named after Gail Gardner, now 73, who had been raped in 1988 but had her rape kit set aside for over 30 years. The kit was never processed and ultimately forgotten. Gail’s rape kit was one of at least 13,435 untested kits that were found in Florida. Now she finally has finally found out the identity of her attacker, and testified before both the House and Senate to push for proper investigation by the police with rape kits.

By 2023, the new database is expected to be fully operational. This will give victims of sexual assault the availability and choice to track the status of their rape kits using a bar code, and will be notified if there is a DNA match.

Defendant’s Right

Even if you have already been arrested and charged with a sexual battery crime, you still have basic rights as a criminal defendant. It is highly important that you protect these rights, and working with an experienced attorney can help you do so. An attorney can file a notice of discovery, which allows the defendant to review, copy, and photograph the following forms of evidence:

• Information of investigating officers, eyewitnesses, alibi witnesses, expert witnesses, and informants
• Any statements provided by the named witnesses
• Any recorded statements given verbally or in writing by the defendant
• Any evidence gathered by electronic surveillance, including wiretapping
• Any documents seized during the investigator’s searches
• Reports or statements from experts, including the results from either scientific tests, experiments, or comparisons; also includes mental or physical examinations
• Any material the police possess that can be tested for DNA

A fair trial is ensured using the point of discovery. If for any reason this has been violated, speak with an attorney immediately.

Florida’s Rape Shield Law

There are several states that use the rape shield law, including Florida. The law prohibits or limits the defendant from introducing evidence in his or her own defense. For example, the defendant cannot bring up the accuser’s past sexual conduct as a defense to his or her charges. Florida Statute Section 794.022 explains that any instances or prior sexual activity between the victim and another person—even consensual—can not be admitted into evidence. However, what can be used in court is if such evidence shows proof that it was not the defendant who was the source of injury, semen, disease, or pregnancy.

Finding a Defense Attorney in Tallahassee, Florida

Getting accused of sexual assault is no small matter. A sexual battery charge has extremely serious consequences in the state of Florida. You could get hit with penalties including fines, jail time, and potentially getting registered as a sexual predator. There is also the social stigma of being accused of a sexual battery crime to consider. You could lose your job, get expelled from school, and lose relationships with family and friends.

If you or a loved one have been falsely accused of sexual assault, not all hope is lost. Seek out the help of a sexual battery defense attorney in your area. Don Pumphrey and his team at Pumphrey Law Firm have represented clients all across the state of Florida. We understand the importance of strategizing a strong defense against a sexual assault accusation. We will work tirelessly to earn you your freedom. For a free consultation call (850) 681-7777 or leave an online message today.

Written by Karissa Key

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