Making the case against a perpetrator of a sexual assault can prove to be a daunting task in the U.S. criminal justice system. The facts about the incidence of sexual assault in the United States speak for themselves:

  • Every 92 seconds someone in the United States is sexually assaulted, according to the U.S. Department of Justice Bureau of Justice Statistics
  • Every nine minutes that victim of sexual assault is a child
  • Each day hundreds of Americans are impacted by sexual assault

A crucial element in successfully making a prosecutable case is conducting a thorough, comprehensive physical examination of a suspected perpetrator.

Fourth Amendment Protection Against Unreasonable Search and Seizure

The Fourth Amendment to the Constitution of the United States gets tossed around a great deal in television show and big screen films. In basic terms, the Fourth Amendment protects against unreasonable searches and seizures. In order for a search to occur in the first place, what legally is known as probable cause must be demonstrated in two ways:

  • First, there must be probable cause that a crime was committed (probable cause that a person was sexually assaulted)
  • Second, there must be probably cause that a particular individual committed the crime at issue (probable case that a particular person committed a sexual assault or offense)

A person suspected of committing a crime can voluntarily submit to a physical examination. Barring a voluntary agreement to be physically examine, a law enforcement investigator or prosecuting attorney can seek a court order directing the suspect to submit to some type of physical examination. The extent and scope of such an examination will be specifically set out in the court order.

Miranda Rights and Physical Examination of a Suspect

A good amount of confusion surrounds the so-called Miranda rights afforded a person under arrest. The words “under arrest” point to a major point of confusion regarding Miranda rights. They do not apply unless a person is being or has been arrested. In other words, a person doesn’t need to be read his or her Miranda rights unless that individual is being arrested and police want to question that person. In the alternative, if a person is in custody, these rights must be read to that individual if not done so at the time of arrest but because investigators now want to question the man or woman.

The Miranda rights are:

  • Right to remain silent
  • Anything said can be used against a person in custody
  • Right to an attorney
  • If an attorney cannot be afforded, one will be appointed before questioning

Even when appropriately read Miranda rights, a person never has to respond to questions from law enforcement, the prosecutor, or anyone else connected with the justice system.

Miranda rights do not apply to a situation in which investigators desire to collect DNA evidence from a suspect, including a person who has been arrested. As mentioned previously, a suspect can refuse to voluntarily submit to a physical examination. However, an investigator or prosecutor can go to court and seek an order for an exam. The suspect has the ability to appear in court, ideally with a lawyer, to explain why an examination should not occur.

In the end, provided probable cause exists as outlined previously, provided the requested examination is limited in scope and has a direct bearing on the case, and provided that an exam is not unduly invasive, a court is likely to issue an order allowing for it.

A cheek swab for DNA is an example of a type of physical exam that a court will order. A blood draw is also something a court would be likely to permit. Something more physically invasive would be a harder sell to judge.

Physical Examination of a Suspect’s Person

As noted, there can be limitations of the nature and extent of the physical examination of a suspect in a sexual assault case. Examples of the elements of an examination of a suspect in a sexual assault case include:

  • External examination of the suspect’s body to identify any bruises, cuts, or abrasions
  • Taking of fingerprints
  • Hair sample
  • DNA swab (which is discussed in detail in a moment)

DNA Testing

When it comes to a case involving sexual assault, typically the most important piece of physical evidence that is needed to be collected from a suspect is that individual’s DNA. Collecting DNA evidence has become what fairly can be called an easy task in this day and age. Long gone are the days when a blood sample needed to be drawn. Rather, DNA evidence can be collected from a suspect in a sexual assault case by swabbing the inside of the individual’s cheek.

Once this process is completed, the swab and cells collected on it are transmitted to an approved laboratory. At the lab, the suspect’s DNA will be subject to what technically is known as genetic sequencing. This data can then be compared to any DNA collected at the scene of the crime or through the physical (or forensic) examination of the victim of the sexual assault.

Although obtaining physical evidence from a suspect in a sexual assault case can be an important part of the investigation of the crime, protecting the interests of the victim on a broader basis is vital. This includes making certain that a sexual assault victim has access to supportive services as her needs necessitate.


Emily Kil

Co-Owner of Eco Bear Biohazard Cleaning Company

Together with her husband, Emily Kil is co-owner of Eco Bear, a leading biohazard remediation company in Southern California. An experienced entrepreneur, Emily assisted in founding Eco Bear as a means of combining her business experience with her desire to provide assistance to people facing challenging circumstances. Emily regularly writes about her first-hand experiences providing services like biohazard cleanup, suicide cleanup, crime scene cleanup, unattended death cleanup, and other types of difficult remediations in homes and businesses.