By: Heather Lawson, J.D. Candidate 2023
Book Review of Andrea Quinlan’s The technoscientific witness of rape: contentious histories of law, feminism, and forensic science (Toronto: University of Toronto Press, 2017).
The technoscientific witness of rape: contentious histories of law, feminism, and forensic science situates and contextualizes the failure of the so-called “greatest rapist trap”: the Sexual Assault Evidence Kit (SAEK). Sociologist Andrea Quinlan analyzes the history of Ontario’s SAEK from the factors leading to its creation, to its current status in trials for sexual assault. Quinlan masterfully maps the history, controversies, and advancements in forensic science that brought the SAEK to life. This is in service of her overarching thesis: the failure of the SAEK to deliver on its promise is owed to the kit’s design and, ironically, its perceived credibility. The technoscientific witness of rape contributes importantly to two bodies of feminist scholarship: critiquing the effectiveness of SAEKs, or “rape kits”, and challenging the patriarchal assumption that science is neutral and objective, rather than imbued with societal beliefs and biases. Unfortunately, Quinlan’s concluding vision of reforms and alternatives to the kit, and sexual assault trials, are unsatisfying due to the comprehensiveness of her analysis.
Quinlan frames the creation of the SAEK as a response to feminist anti-violence movements of the 1970s, effectively using the kit’s history to illustrate its deficiencies. Given the low rate of convictions for sexual assault compared to other crimes, it is unsurprising that SAEKs have not lived up to their assumed potential. The strength of Quinlan’s contribution lies in her illustration of how the network that created, administers, and interprets rape kits incorporates certain myths about sexual assault. This network includes Rape Crisis Centre advocates, lawyers, politicians, and medical professionals. Interviews with these actors are used to convey the historical controversies surrounding the SAEK, and how it became a credible ‘witness’ of sexual assault in the medicolegal community.
Analyzing the history of Canada’s Criminal Code, Quinlan discusses the rise and fall of the requirement for sexual assault complainants to have corroborative evidence. Technically, corroborative evidence is no longer necessary to establish a sexual offence. SAEKs, however, act almost entirely as corroborative evidence. Overreliance on forensic evidence manifests in the difficulties complainants face when they cannot, or will not, undergo a sexual assault evidence exam. The lack of an SAEK is viewed by investigators and the courtroom as a sign of dishonesty or unreliability. This begs the question of whether the SAEK’s assumed credibility, over that of someone who states that they have been sexually assaulted, effectively revives the corroborative evidence requirement.
The effective revival of such a requirement brings with it the myths of sexual assault that Quinlan describes as built into the design of the rape kit. One of these myths is that sexual assaults are most often perpetrated by strangers. Through scientific advancements in DNA, the kit is able to identify perpetrators through trace fluids and hairs. This evidence, however, is often irrelevant and inadmissible at trial because the identity of the alleged perpetrator is not usually a legal issue. What is left of the kit, then, is solely evidence corroborating the ‘unreliable’, subjective ‘story’ of sexual assault. The book adds that this overwhelmingly works against complainants. For example, inconsistencies between something in the SAEK and a complainant’s testimony are regularly used to target credibility.
A central argument of The technoscientific witness of rape is that the SAEK becomes a witness of sexual assault. Such a witness is deemed necessary to make up for the inherent untrustworthiness of those disproportionately impacted by sexual violence: those marginalized on the basis of their gender, sexuality, race, age, class, and ability. In a courtroom, however, a rape kit is not a witness. It requires human actors to animate the evidence from the time of collection to interpretation. At trial, this is put to the court through expert witnesses. An apparent risk of expert evidence at sexual assault trials is that it will be used to discount, or even exclude, the testimony of the actual witness of the assault. In R v Parrott, for example, a trial judge improperly admitted expert evidence about the testimonial competence of a sexual assault complainant who had Down Syndrome. The judge accepted that the complainant was not capable of describing the events of the alleged assault in a reliable manner, despite the fact that she never answered questions in the presence of the trial judge. On appeal, it was held that the expert evidence was unnecessary. The lower court should have determined the ability of the complainant to testify based on witnessing her answers to questions firsthand and avoided stereotyping those with disabilities. The case demonstrates the inclination to privilege testimony that is ‘neutral’ or ‘scientific’ over that of a seemingly unreliable witness.
An analysis of the dangers posed by expert evidence in sexual assault trials would complement Quinlan’s analysis and critique of those administering and interpreting SAEKS. Quinlan’s interviews with doctors and nurses demonstrate that medical professionals dread administering sexual assault evidence exams due to their arduousness and the concern it will later require testifying at trial. The focus on the flaws of SAEK interpretation at trial in The technoscientific witness of rape is on how criminal defence lawyers question the qualifications of sexual assault nurses. Quinlan could have expanded on the interpretation of SAEKs by focusing on the experts themselves. That is, how does the attitude medical professionals have towards administering the SAEK inform their interpretation?
The technoscientific witness of rape leaves more to be desired in its concluding discussion of potential improvements to the SAEK and the criminal justice system’s treatment of sexual assault. This discussion is informed by the perspectives of Rape Crisis Centre advocates, displaying Quinlan’s deference to their expertise in addressing the SAEK’s problems. The alternatives and reforms posed seemingly succumb to the same inadequacies that Quinlan carefully explains in prior chapters. For instance, Quinlan includes one advocate’s suggestion that the SAEK be performed on alleged perpetrators, rather than victims of sexual assault. The point is fair enough, but it does little, if anything, to improve one of the key flaws that Quinlan takes up: that identity is rarely an issue at sexual assault trials, rendering the kit useless to prosecutors, and helpful to defence attorneys that can exploit inconsistencies. As Quinlan notes, while a kit to be used on alleged perpetrators rather than complainants may shift the practice of collecting evidence, it may have little impact on the sexual assault rate and case outcomes.
Quinlan’s analysis of the SAEK’s frailties is fascinating and thorough because it is situated in a cultural and sociological context. A true service to the depth of this analysis would involve changes that apply to the network and system that created and interprets the SAEK. Quinlan suggests that many of the SAEK’s faults lie in the view that the criminal justice system requires an objective witness to sexual assault; something a complainant is incapable of being. By suggesting mainly incremental, kit-specific reforms, Quinlan succumbs to the very idea she carefully dismantles: that justice for sexual assault complainants hinges on the effectiveness of ‘objective’ forensic evidence.
The technoscientific witness of rape effectively, and systematically, deconstructs the perceived credibility of the SAEK. By documenting the tensions and controversies between advocates and professionals creating the kit, Quinlan unveils how it evolved to work against, rather than for, sexual assault complainants. If Quinlan’s analysis were less sharp, there may be more hope for the reforms she discussed. Quinlan demonstrates that a rape kit is not merely a piece of objective forensic evidence. It is a composite of beliefs held, usually incorrectly, by its creators and interpreters. In light of these findings, it is clear that a better vision for sexual assault trials takes account of the network that creates tools for evidence-gathering. A feminist analysis of the criminal legal system demonstrates how compelling reforms must grapple with the current system’s understanding of neutrality and objectivity.
 Andrea Quinlan, The technoscientific witness of rape: contentious histories of law, feminism, and forensic science (Toronto: University of Toronto Press, 2017) at 107.
 Quinlan, supra note 1 at 134.
 Quinlan, supra note 1 at 36.
 Corroborative evidence is evidence strengthening or confirming existing evidence. In the 1970s, the Criminal Code required that corroborative evidence strengthen or confirm evidence for sexual assault (“rape” at the time) convictions. An absence of corroborative evidence implicated the accused. In the 1990s, the corroborative evidence requirement was removed from the Criminal Code. Section 274 now states that no corroboration is required and a trial judge must not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
 Quinlan, supra note 1 at 164.
 Quinlan, supra note 1 at 80.
 Quinlan, supra note 1 at 166.
 R v Parrott, 2001 SCC 3.
 R v Parrott, 2001 SCC 3 at para 80.
 Quinlan, supra note 1 at 40.
 Quinlan, supra note 1 at 99.
 Quinlan, supra note 1 at 184.