Keywords

Introduction

Sexual and gender-based violence (SGBV) is a ubiquitous phenomenon [1] affecting people around the world, primarily women and girls [2]. A lifecycle of violence has been described affecting women living in almost every nation and belonging to every ethnicity [3, 4]. While the specific forms of violence may vary, the constant threat can be pervasive. In 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations highlighting equality and special protections for women and girls; however, in the ensuing decades, increasing evidence showed that women and girls faced unique barriers to equality and specific forms of abuse which were not fully enumerated in the UDHR. As a result, in 1979 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the United Nations (UN) with 189 signatories as of 2015 [5]. It is noteworthy that the United States has signed, but never ratified CEDAW.

The UN defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life” [6].

The World Health Organization (WHO) describes SGBV as any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work [7]. Multiple human rights violations fall under these definitions and the spectrum includes a wide array of acts ranging in severity from verbal harassment, to daily physical or sexual abuse, to female genital mutilation/cutting (FGM/C), to rape, honor killing, and femicide [8] (Table 7.1).

Table 7.1 Types of sexual and gender-based violence [9] (Adapted from United Nations. International protocol on the documentation and investigation of sexual violence in conflict best practice on the documentation of sexual violence as a crime or violation of international law. 2017, March. https://www.un.org/sexualviolenceinconflict/wp-content/uploads/2019/06/report/international-protocolon-the-documentation-and-investigation-of-sexual-violence-in-conflict/International_Protocol_2017_2nd_Edition.pdf.)
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When evaluating a survivor for SGBV, it is important to note that such violence is not limited to penetration of sexual organs or the physical invasion of bodily cavities. Additionally, survivors usually report having experienced more than one form of SGBV. Most experience multiple forms simultaneously or sequentially across time.

Settings with increased risks of SGVB include areas with a high prevalence of poverty, conflict and post-conflict zones, natural disaster zones, refugee camps, and areas dominated by gangs and gang violence. [15] At the time of this writing, the worldwide COVID-19 epidemic is raging, and there is abundant evidence that because of enforced social isolation, coupled with long-standing structural inequalities, SGVB is on the rise [17].

Prevalence

According to a 2020 Report of the United Nations Secretary-General [2], “Data on violence against women and girls indicate that it affects women in all countries and across all socioeconomic groups, locations and education levels.” Data from many sources indicate that the most dangerous place for women and girls is in their home [15, 18, 19]. Physical violence may begin as early as infancy, when cultural preferences for male children can result in the withholding of food and education, as well as domestic servitude and corporal punishment. The cycle of violence continues for girls and women as they enter into relationships with male partners. A 2013 report from the World Health Organization reports on data from 106 countries and concludes that approximately 30% of women will experience violence by a partner in their lifetime [20].

SGBV also affects the LGBTQ community, with some important differences, which will be discussed at length in Chap. 8 of this book. For the remainder of this chapter, we will use the terms “women” and “girls” to refer largely to cis-gendered individuals who identify as female.

The Impact of Sexual and Gender-Based Violence

SGBV often has long-lasting physical, psychological, social, behavioral, and spiritual impact on survivors. The physical and psychological effects may include (but are not limited to) those outlined in Tables 7.2 and 7.3 (Adapted from United Nations. International protocol on the documentation and investigation of sexual violence in conflict best practice on the documentation of sexual violence as a crime or violation of international law. 2017, March. https://www.un.org/sexualviolenceinconflict/wp-content/uploads/2019/06/report/international-protocol-on-the-documentation-andinvestigation-of-sexual-violence-in-conflict/International_Protocol_2017_2nd_Edition.pdf.)

Table 7.2 Some physical effects of SGBV
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Table 7.3 Some psychological effects of SGBV
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US Asylum Law and SGBV

The granting of asylum in the United States on the basis of sexual and gender-based violence is a relatively new phenomenon. Case precedent was first established in 1996 with the Matter of Kasinga [21], and grew steadily until 2016. Nevertheless, it is still very difficult to win asylum on the grounds of IPV or SGBV, and the legal landscape often changes. The grounds for asylum on the basis of SGBV was further eroded by the 2020 Department of Justice guidance: Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review [22] in which many of these grounds for relief were explicitly revoked. While these developments are discouraging, they also make the role of the clinician–evaluator even more important in the asylum process [23], and particularly so in sexual and gender-based violence cases.

One of the barriers faced by asylum seekers is documentation of efforts to seek protection through law enforcement or government agencies. This absence of reporting is often seen by the United States asylum adjudicators as evidence that either the abuse did not occur or that it was not severe. There are many reasons for underreporting of SGBV, including fear of reprisal, dependence on the abuser, shame, and stigma. Widespread underreporting makes the documentation of scars/injuries, and long-term sequalae much more critical.

The Evaluation

The evaluation of a survivor of SGBV should follow trauma-informed care [24, 25] guidelines. Special consideration should be given to having a gender-congruent clinician and interpreter. All consent procedures should be strictly followed before and during the evaluation.

History Taking

When interviewing the client, begin with a routine medical, gynecological, surgical, and social history. When inquiring about incidents of SGBV, the evaluator should ask specific questions about the physical acts endured by the client. These include (but are not restricted to) the survivors’ body parts involved (e.g., genital, anal, oral); the perpetrator’s body parts involved in the incident (e.g., penis, fingers); use of foreign objects; the number of perpetrators; use of ligatures or strangulation [26] (can be common with IPV and SGBV); and co-occurring violent acts (e.g., kicking, beating, stomping, pushing). Inquire about any resulting pregnancy or pregnancy loss from the assault, or subsequent sexually transmitted infections (STIs). Document details of symptoms that immediately followed the assault, as well as those which became chronic conditions, such as genital bleeding, discharge, itching, sores, pain, urinary symptoms, anal pain, urinary or fecal incontinence, abdominal pain, etc.

In addition to an assessment of the physical and psychological scars inflicted by the abuser(s) on the client, it is vital to elucidate the cultural context in which the abuse(s) occur. It is incumbent on the evaluator, in cooperation with the attorney, to educate the adjudicator on in-country conditions as they relate to the experiences of the client. With respect to SGBV, clients should be asked about traditional family structure in which they lived, including patrilocal living arrangements, permitted daily activities, ability to leave the home/family compound alone, and polygamous households. History regarding restriction of educational opportunities, arranged and/or forced marriage, child marriage, dowry/ bride price, female genital cutting, and cultural tolerance of intimate partner violence should also be obtained from the client. The credibility of the client’s experience of any of these harmful practices should be supported with scholarly sources on and expert analyses of the prevailing conditions in the client’s home country whenever possible.

Physical Examination

There is a traditional division of the physical forensic evaluation into “medical” and “gynecological” spheres, which is a false dichotomy. When a forensic evaluator performs a physical evaluation, we do not serve our clients if we do not do a full exam of her entire body, including the genitals, when relevant. Furthermore, recognizing that forensic evaluations are often re-traumatizing [27,28,29], it is incumbent to minimize this exposure as much as possible. As such, we encourage “gynecological” evaluators to perform “head to toe” examination of all client, if they feel comfortable doing so, thus eliminating the need for an additional physical evaluation.

Importantly, when it comes to evidence of rape or sexual assault, there is often no remaining sign of genital injury, especially if the incident is not acute. Always ask yourself if a genital examination is necessary. If it is not necessary to further the forensic evaluation, genital exams should not be performed. Of particular concern is the sometimes “expected” examination of the hymen. In some settings, clinicians refer to changes in the hymen to confirm a history of consensual or nonconsensual sexual intercourse. However, an examination of the hymen is not an accurate or reliable test of a previous history of sexual activity, including sexual assault [30].

As described elsewhere in this book, documentation of injuries should be precise and in accord with the guidance offered by the Istanbul Protocol [31]. Photographs should be taken whenever possible after the provision of consent. However, genital injuries/scars should not be photographed. Photographing the genitals for the purpose of the asylum application may be traumatic and humiliating. Furthermore, it is critical to recall that the adjudicator will have the affidavit in front of him/her while they are speaking with the applicant: The inclusion of genital photographs would be highly inappropriate. Instead, the use of illustrations from a variety of sources (e.g., the WHO FGM/C typology or obstetrics and gynecology texts) is preferred (Appendix 2 also includes body diagrams).

The use of a chaperone during evaluations that include genital exams is not universal. On one hand, a chaperone’s presence may offer a sense of safety to the client. On the other hand, it introduces yet another individual into the exam room at a time when the client may feel particularly vulnerable and possibly ashamed. The use of a chaperone should be discussed with clients and their attorneys in advance, with an assessment the client’s preferences and emotional needs prior to the evaluation.

The Affidavit

In addressing SGBV cases, the task before the forensic examiner is somewhat different than those presented by cases which are centered on a basis of political opinion, nationality, or religion [32] because of the complexity and duration of abuse, as well as the cultural context in which the abuse took place. As with other asylum applications, evaluators must consider the nature of injury inflicted, the severity of the harm, patterns of abuse by a perpetrator, and the existence of permanent or serious mental or physical health sequalae. Each of these should be addressed in the affidavit as it relates to the individual applicant’s experience.

In writing this type of affidavit, it is reasonable to assume that the adjudicator is not familiar with the cultural/national behavioral norms experienced by the applicant. Describing the cultural setting for the adjudicator is important because they may not believe that behavior/abuse so different from what they consider “typical” is common or plausible.

Finally, the organization of the affidavit is particularly important in SGBV cases. Because women seeking asylum have often experienced a lifetime of overlapping types of violence in a variety of settings [33], it can be more difficult to describe and document a linear trajectory of persecution and abuse. However, it is incumbent on the clinician evaluator to make clear the co-occurring and extended nature of abuse often suffered by asylum seeking women. This may be best accomplished by dividing the affidavit into sections, with headers indicating each abuse type. This helps to give structure to a possibly complex narrative, and also serves to highlight the types of violence experienced by the applicant.

Special Consideration: Female Genital Mutilation/Cutting

Anecdotal information suggests that hundreds of women every year seek asylum in the US based on FGM/C status [34]. The practice has very specific and unique features that require specialized knowledge both of the sociocultural aspects of the practice, as well as the anatomical and morphological features of the external female genitalia, pre- and post-FGM/C. For this reason, we are providing a separate section dedicated to this type of evaluation.

Background

The practice of FGM/C affects an estimated 200 million women and girls worldwide. Accurate, up-to-date statistics are difficult to obtain because, while widely practiced, most nations have legislation banning the practice, thus making data collection difficult. It is estimated that more than 500,000 women and girls currently residing in the United States are at risk of or have undergone FGM/C [35]. FGM/C has been recognized as a human rights violation under several UN declarations and conventions including the Convention for the Elimination of Discrimination against Women [6], in which FGM/C is considered to be an extreme form of discrimination against women; is both physical and psychological abuse; the Convention on the Rights of the Child [36] (as FGM/C is usually carried out on minors); and the UDHR [37] as a violation of the “rights to health, security and physical integrity of the person, the right to be free from torture and cruel, inhumane or degrading treatment.” Furthermore, FGM/C is associated with child marriage and other harmful traditional practices in many regions [38].

The WHO has described four classes of FGM/C with several subcategories [37]. While there is ongoing discussion about the adequacy of the current classification, it is currently the authoritative standard and should be used in the affidavit to describe and categorize the parts of the external genitalia which have been removed (Fig. 7.1).

Fig. 7.1
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World Health Organization FGM/C classes (Reprinted with permission from [37])

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History Taking

When obtaining history about FGM/C, it is important to document not only the physical and psychological impact of the practice, but also the social history and details of the specific circumstances surrounding the cutting. A full description of the particular sequalae affecting a particular client is critical to the evaluation, as it speaks to the issue of “ongoing harm” as a result of an abuse.

Tables 7.4 and 7.5 describe some common acute and chronic manifestations of FGM/C [39].

Table 7.4 Possible acute health consequences of female genital mutilation or cutting
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Table 7.5 Possible chronic health consequences of FGM/C
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Table 7.6 includes recommended elements of the history when evaluating a client seeking asylum based on FGM/C [40].

Table 7.6 FGM/C evaluation recommended history elements [40]
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It is also important to ask about second cuttings. If the initial cutting is deemed to be unsatisfactory or insufficient, girls may be subjected to a second procedure: This may occur days or years after the initial event. For women and girls who have undergone FGM/C Type III (infibulation), a second procedure may be required to enlarge the vaginal opening in order to allow for sexual intercourse. This is often done by the same practitioners who perform FGM/C is often performed without anesthesia. Finally, some traditions require that women be re-infibulated after childbirth.

Lifelong psychological effects [41, 42] may also be experienced by FGM/C-affected women. Importantly, the degree of psychological distress is not related to the severity of the cutting itself, and some women do not express psychological harm at all. Feelings of betrayal, shame, humiliation, and distrust may manifest shortly after the procedure. Longer-term consequences may include anxiety, depression, and post-traumatic stress disorder. In addition to the psychological effects of their own FGM/C experience, asylum applicants may also experience trauma and distress after witnessing the FGM/C procedure and complications endured by others, including sisters, cousins, and friends.

While the majority of asylum seekers evaluated for FGM/C will be adult women, it is important to recognize that this is, in fact, a pediatric phenomenon [43]. The vast majority of individuals who will undergo the procedure are under the age of 15. Those asylees who have female children often request protection, in part, to prevent their daughters from being forced to undergo the procedure over parental objection. Whenever possible, it is important to evaluate the children in order to attest to the fact that their genitals are (or are not) altered. If the child/children are prepubertal and you are not familiar with pediatric gynecologic exams/anatomy, it is best to request assistance from a local expert in the field.

Conclusion

Significant levels of inequality persist globally, resulting in many women and girls experiencing multiple and intersecting forms of discrimination, vulnerability, marginalization, and violence throughout their life course. Clinicians who conduct medicolegal evaluations are uniquely positioned to provide evidence of many elements of an applicant’s story as well as supporting documentation. Medicolegal affidavits are also an opportunity to educate the immigration judge or asylum officer specifically about the effects of the abuse a particular asylee has suffered, as well as about the more general in-country conditions faced by women and girls from the same region.