Medico-Legal Examination of Sexual Assaulted Victims Unable to Consent in Portugal: Ethical Decision-Making

Abstract

Medical decision-making is a complex task in any field. In the medico-legal examination of victims that have (allegedly) been sexually assaulted there are many specific variables and features influencing the decision. It is essential to complement the clinical intervention with a forensic approach. Clinical parameters such as the victim’s physical and cognitive state along with circumstantial information such as the elapsed time from the event and the type of abuse (described or suspected) grant different levels of priority to the forensic medical assessment. In such cases, forensic medical doctors or other medical doctors responsible for attending to the victim may have to decide whether to perform the examination prior to a judicial analysis of the case if consent cannot be obtained. This implies the need to deliberate about performing the examination and/or reporting the case to legal authorities. This article discusses the forensic medical decision-making process in cases of alleged recent sexual assault of victims who are legally unable to consent or unable to consent for other reasons. We aimed to identify possible ethical problems that can arise in this context and discuss which elements should be considered by medical doctors when making decisions about such cases. The Portuguese legal framework of medico-legal examinations is analyzed. The authors also make considerations about reporting these cases from a legal point of view. The discussion turns to an ethical perspective where possible ethical problems arising from medical deliberation are identified. Issues about legally incompetent victims and incompetent victims due to other reasons are addressed. A decision-making tree, based on the problems identified, is proposed.