Legal Implications

The legal definitions of many jurisdictions, including England and Wales, consider nonconsensual fellatio to be analogous to nonconsensual penile penetration of the vagina and anus (66,67).

7.1.4. Forensic Evidence 7.1.4.1. Method of Sampling

1. After oral-penile contact, the oral cavity should be sampled when fellatio was performed during the sexual assault or in circumstances in which the details of the incident are unknown. There is no current worldwide consensus as to which is the best sampling method.

Possible techniques include saliva collection (ideally 10 mL), application of swabs, gauze pads (68), or filter paper (69), and oral rinses using 10 mL of distilled water (Newman, J., personal communication, 1998). Willott and Crosse (70) reported that spermatozoa are found more often in the saliva sample compared with mouth swabs, but also highlight several cases in which spermatozoa were recovered from swabs taken from specific areas of the oral cavity (e.g., under the tongue, the roof of the mouth, and the lips).

Although no studies have investigated the order in which the samples should be taken, the authors' practice is to obtain 10 mL of saliva as the first sample. Then two swabs in sequence are rubbed over the inner and outer gum margins (with particular attention to the margins around the teeth); over the hard and, where tolerated, soft palate; on the inside of the cheeks and lips; and over both surfaces of the tongue. The mouth is then rinsed with 10 mL of sterile water, which is retained in a bottle as the final sample. The samples can be obtained by a police officer or other attending professional before the arrival of the forensic practitioner, minimizing any delay.

Spermatozoa have also been recovered from dentures and other fixtures that have remained in situ during fellatio. Although the optimum exhibit for the forensic scientist would be the dental fixture itself but, understandably, this may not be acceptable to the complainant. A compromise would be to swab the dental fixture. Interestingly, sufficient spermatozoa for a DNA profile have also been recovered using standard extraction techniques from chewing gum that was retained in the mouth during nonconsensual fellatio (68). In this case, the gauze pad obtained at the scene of the incident and the oral swabs obtained subsequently during the medical were negative.

2. DNA reference sample: Buccal cells are the preferred DNA reference sample from both suspect and complainant. The buccal cells are obtained by firmly rubbing a special swab over the inside of the cheek.

3. Determination of the secretor status: A sample of saliva is used as the reference sample for the secretor status. This sample is no longer a requirement in the United Kingdom.

7.1.4.2. Forensic Analysis

After actual or possible oral ejaculation, the sample is initially examined microscopically to identify spermatozoa (see Subheading 8.5.2.1.) followed by DNA analysis.

7.1.4.3. Persistence Data

Rapid retrieval of the forensic samples from the oral cavity is of paramount importance because of the limited period that spermatozoa remain in this orifice. Even though the maximum persistence of spermatozoa in the oral cavity is recorded as 28-31 hours, only a few spermatozoa are detected unless the sample is taken within a few hours of ejaculation (71). Consequently, the forensic exhibits must be collected as soon as an allegation of nonconsensual fellatio is made, and law enforcement agencies should be instructed accordingly. In the United Kingdom, an early evidence kit is available for use by the first response police officer; this is particularly beneficial in cases where there may be a time delay before a medical examination can occur.

Although rinsing of the mouth, drinking, and brushing of teeth do not necessarily remove all traces of spermatozoa (72), such activities should be discouraged until the samples have been obtained. Spermatozoa have also been recovered from toothbrushes used by complainants to cleanse the mouth after fellatio (forensic scientists, personal communication, 1998). The use of interdental toothbrushes may enhance the retrieval of spermatozoa from the inter dental spaces, and research in this area is currently underway in the United Kingdom.

In acts of fellatio, it is common for the semen to be spat or vomited onto clothing where it will remain until washed. Therefore, any potentially contaminated clothing or scene samples should be submitted for forensic examination.

Beat The Battle With The Bottle

Beat The Battle With The Bottle

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