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The Law Offices of Kevin J. Mahoney P.C

Death by Drowning
Drowning occurs when liquid enters the breathing passages, preventing air from getting to the lungs. This can take place in
deep water, such as an ocean, or in water as shallow as six inches. Although drowning is sometimes used as method of
homicide, it is very difficult to determine the manner of death when a victim is found in the water.
How Drowning Occurs
When a person is submerged under water, obviously he holds his breath. arbon dioxide increases, and oxygen decreases,
until a breaking point is reached. The person involuntarily inhales, and takes in water. !ome is swallowed, and the person
may vomit. The involuntary gasping for air continues for several minutes. erebral hypoxia continues until it becomes
irreversible, and death occurs.
The irreversibility begins after three to ten minutes in warm water. "owever, children and infants who are in cold water can
be resuscitated after as long as ## minutes. Whatever the temperature of the water, all humans usually lose consciousness
within three minutes. "yperventilating causes a decrease in carbon dioxide, which leads to cerebral hypoxia. Therefore, the
person may lose consciousness before reaching the breaking point. A person is considered a victim of $near drowning% if,
after being rescued from he survives for &' hours after being submerged in water, even if he dies shortly after or suffers
brain damage.
()*(+, of all drownings are considered $dry drownings.% This takes place when a small amount of water enters the larynx
or trachea and causes a spasm of the larynx. The larynx becomes clogged by mucous, foam, and froth, and water never
even enters the lungs. The concept of dry drownings is only a hypothesis, however, and cannot be seen through an autopsy.
After death occurs, the body sinks. -t will not move far unless it is carried by strong currents. The body decomposes and
gas forms, causing it to rise to the surface, where it is usually found. -n very cold water, decomposition is delayed, and the
body may stay submerged for months.
Tests to Determine a
The diagnosis of drowning is based more on the circumstances of the death than on tests. A complete autopsy is done, and
if the person is found in water and no other causes of death are discovered, the examiner presumes the victim has drowned.
hemical tests are non*specific and unreliable. A test that traditionally was used is the .ettler hloride Test, where the
amounts of chloride on each side of the heart were compared to determine if the person drowned in fresh or salt water.
Another test uses the gravity of blood on the right and left atrias to determine if the person drowned. /either test yields
reliable results.
0xaminers also look for the presence of diatoms, which are microscopic algae found in all types of water. This test too is
unreliable as diatoms can be found throughout the environment. -t is not uncommon for medical examiners to find diatoms
in the organs of individuals who had not drowned. 1ne can obtain diatoms by inhaling or digesting them, or by aspiration
of water containing them.
Problems with
Diagnosing a Drowning
Aside from the unreliability of tests, it is hard to diagnose a drowning based on the circumstances of the death alone.
2eople sometimes die of other causes, such as a drug overdose, heart attack, or epileptic sei3ure, then fall into water. Also,
people can dispose of already dead bodies in water, making it difficult to know how the person actually died. 1ccasionally,
there are suicides by drowning as well.
!ymptoms such as hemorrhages, pulmonary edema, $washerwoman% appearance of the hands and feet, and goose flesh
may indicate a drowning. "owever, heart attacks, drug overdoses, and other causes of death can also cause the same
symptoms. Wounds that do not bleed also do not help distinguish the manner of death because they could have been
inflicted post or antemortem. A good indicator that the person was alive while submerged is the presence of vegetation and
stones from the bottom of the water in the hands of the victim. !o difficult is it to determine the cause of death, an innocent
person could be prosecuted for murder for an accidental drowning or a suicide.
Di4aio, 5incent 6. and Dominick. 7orensic 2athology, !econd 0dition, 8 2ress, /ew 9ork, &))(.
.eberth, 5ernon 6. 2ractical "omicide -nvestigation, Third 0dition, 8 2ress, /ew 9ork, (::#.
"Virtual autopsy" performed with multidetector computed tomography (MDCT) can aid forensics teams in determining if a person has drowned,
according to a study published in the June issue of Radiology
MDCT is comparable to con!entional autopsy in demonstrating airway froth and sediment that are indicati!e of drowning
""ur findings show that MDCT can be used either to facilitate or reduce the need for con!entional autopsy when drowning is the suspected cause of
death," said lead author #ngela D $e!y, MD, from the Department of %adiology, &niformed 'er!ices &ni!ersity of the (ealth 'ciences in )ethesda,
The determination of drowning as a cause of death for a body that is found in water is imperati!e in forensic in!estigation because becoming
submerged in water may be a secondary rather than primary e!ent #utopsy findings that support the diagnosis of drowning include but are not
limited to frothy fluid in the airways or lungs, hyperinflated and congested lungs, and fluid in the paranasal sinuses or stomach
There are some ad!antages to !irtual autopsy compared to con!entional autopsy *n cases of suspicious death, the procedure does not damage or
destroy +ey forensic e!idence, as can happen during a con!entional autopsy *n addition, MDCT can be used in situations where autopsy may not be
feasible or is prohibited by religious beliefs (owe!er, in most cases, MDCT would best be employed as an ad,unct to routine autopsy
Dr $e!y and colleagues performed total-body MDCT e.ams on /0 consecuti!e male drowning !ictims and a control group of 1/ men who were
!ictims of sudden death from coronary artery disease 2ollowing MDCT, routine autopsies were performed
MDCT images were e!aluated for the presence of fluid and sediment in the paranasal sinuses and airways, fluid in the ear, frothy fluid in the airways,
obscured "ground-glass" appearance or thic+ening in the lungs, and swelling, fluid or sediment in the stomach *mages were then compared to
autopsy reports and photographs
MDCT indicated that all of the drowning !ictims had fluid in the paranasal sinuses and ears and ground-glass opacity in the lungs Twenty-si. (34
percent) had fluid in the subglottic (below the !ocal cords) trachea and main bronchi 2ourteen (56 percent) had sediment in the subglottic airways
'i. (/1 percent) had frothy fluid in the airways, and /5 (03 percent) had ground-glass opacity and thic+ening in the lungs Twenty-fi!e (03 percent)
e.hibited swelling of the stomach
7o members of the control group had frothy fluid or sediment in the airways or sinuses, 11 (3/ percent) had subglottic airway, tracheal and bronchial
fluid #ll members of the control group e.hibited collapsed stomachs
#utopsy results in these categories were similar to MDCT results for both study groups
"#irway froth and sediment can be demonstrated on MDCT and were specific to drowning, thereby replicating the findings seen at autopsy," said Dr
)ased on this study, MDCT may pro!ide support for the diagnosis of drowning when other causes of death ha!e been e.cluded by a limited autopsy
or e.ternal e.amination of the body *n addition, MDCT !irtual autopsy may be useful as a pre-autopsy triage tool in mass casualty scenarios
"More and more, ad!anced imaging tools such as MDCT are being applied to forensic in!estigations," Dr $e!y said "*n the future, imaging in
forensics may be ,ust as important as imaging in clinical medicine"
Article adapted by Medical News Today from original press release.
Radiology is a monthly scientific ,ournal de!oted to clinical radiology and allied sciences The ,ournal is edited by #nthony V 8roto, MD, 'chool of
Medicine, Virginia Commonwealth &ni!ersity, %ichmond, Va Radiology is owned and published by the %adiological 'ociety of 7orth #merica, *nc
The %adiological 'ociety of 7orth #merica (%'7#) is an association of more than :6,666 radiologists, radiation oncologists, medical physicists and
related scientists committed to e.cellence in patient care through education and research The 'ociety is based in "a+ )roo+, *ll (%'7#org)
"Virtual #utopsy; Two- and Three-dimensional Multidetector CT 2indings in Drowning with #utopsy Comparison" Co-authors of the paper are (
Theodore (arc+e, MD, John M <et=, )', Craig T Malla+, MD, James $ Caruso, MD, $isa 8earse, MD, #letta # 2ra=ier, MD, and Jeffrey %
<al!in, MD
The opinions and assertions contained herein are the pri!ate !iews of the authors and are not to be construed as official, or as reflecting the !iew of
the Department of the #rmy, 7a!y, #ir 2orce or Defense
Contact; $inda )roo+s
%adiological 'ociety of 7orth #merica
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"Medicolegal" is the term, which incorporates the basics of two sister professions i.e. Medicine and Law. Everybody
talks about the law but few, aside from lawyers, judges and law teachers, have more than the vaguest notion of
what constitutes law. The average layman often has about as much accurate information about the law as he has
about medicineor life on !enus. "nd, unfortunately, two professional groups su#er from more ignorance of law
and medicine than is good for them$
lawyers, at least those who do not constantly deal with medical issues in their legal practice, know very little
about the medical profession and its problems% physicians fre&uently comprehend too little about the law and how
it a#ects them in the practice of their profession. Medico legal e'perts can provide a link between these two
professions for their smooth ( e#ective functioning in a scienti)c manner. The physician meets the law at every
turn. *e confronts it when, as the treating doctor, he is subpoenaed as a witness in a personal injury lawsuit% he
meets it when his aid is sought as an e'pert in connection with a claim that another member of his profession has
been negligent and when he is faced in his o+ce or clinic by a narcotic addict, a man with a gunshot wound, or a
young couple seeking a blood test. *e is facetoface with the law when he is re&uired to render an aggravating
array of governmental reports or to preserve physical evidence for the bene)t of a law enforcement agency. The
physician, in fact, )nds a great deal of the law intensely irritating, often because he is not absolutely clear as to its
The following subjects deal with all the above aspects of Law and medicine.
, -orensic Medicine
, Medical .urisprudence
, To'icology
Medical jurisprudence is the application of medical science to legal problems. /t is typically involved in cases
concerning blood relationship, mental illness, injury, or death resulting from violence. "utopsy is often used to
determine the cause of death, particularly in cases where foul play is suspected. 0ostmortem e'amination can
determine not only the immediate agent of death 1e.g. gunshot wound, poison2, but may also yield important
conte'tual information, such as how long the person has been dead, which can help trace the killing. -orensic
medicine has also become increasingly important in cases
involving rape. Modern techni&ues use such specimens as semen, blood, and hair samples of the criminal found in
the victim3s bodies, which can be compared to the defendant3s genetic makeup through a techni&ue known as
45" )ngerprinting% this techni&ue may also be used to identify the body of a victim. The establishment of serious
mental illness by a licensed psychologist can be used in demonstrating incompetence to stand trial, a techni&ue
which may be used in the insanity defense, albeit infre&uently.
"utopsy is the systematic e'amination of a cadaver for study or for determining the cause of death. "utopsy
means "see for yourself". /t is a special surgical operation, performed by specially trained physicians, on a dead
body. /ts purpose is to learn the truth about the person3s health during life, and how the person really died.
"utopsies, also known as necropsies, postmortems, or postmortem e'aminations, use many methodical
procedures to determine the etiology and pathogenesis of diseases, for epidemiologic purposes, for establishment
of genetic causes, and for family counsel. There are many advantages to getting an autopsy. Even when the law
does not re&uire it, there is always something interesting for the family to know. 0ostmortems may be performed
at the re&uest of the authorities in cases of une'plained and suspicious death or where a physician did not attend
death. /n other circumstances postmortem e'amination may be performed only with the consent of the
deceased3s family or with permission granted by the person himself before death. These e'aminations are more
fre&uently being used for the ac&uiring of organs and tissues for transplantation. !aluable medical information can
be learned from a postmortem e'amination. Legionnaire3s disease, for e'ample, was discovered as a result of
autopsies, and improved safety standards have resulted from the e'amination of the bodies of crash victims.
The autopsy deals with the particular illness as evidenced in one individual and is more than simply a statistical
average. Every autopsy is important to e'pose mistakes, to delimit new diseases and new patterns of disease, and
to guide future studies. Morbidity and mortality statistics ac&uire accuracy and signi)cance when based on careful
autopsies. The autopsy procedure itself has changed very little during the 67th century. /t is a detailed
e'amination of a body and each of its part, not only super)cially but also through various tests on tissue in labs.
/ts purpose is to learn the truth about the person3s health during life, and how the person really died. "pparently,
autopsies are being performed with decreasing fre&uently. 8here earlier in the century as many as half of all
bodies had autopsies performed, now only 9:7 percent of corpses undergo the procedure. ;enerally, an autopsy
is only done when there is some cause of doubt as to the cause of death, although the family of the deceased can
always re&uest an autopsy even if the hospital doesn3t think it necessary. The )rst step
is a gross e'amination of the e'terior for any abnormality or trauma and a careful description of the interior of the
body and its organs. This is usually followed by further studies, including microscopic e'amination of cells and
tissues. Then the pathologist proceeds to the dissection, which consists of removing and e'amining carefully all
parts of the body.
DNA ingerprinting:
45" )ngerprinting or 45" pro)ling or any of the several similar techni&ues for analy<ing and comparing 45" from
separate sources are used especially in law enforcement to identify suspects from hair, blood, semen, or other
biological materials found at the scene of a violent crime. /t depends on the fact that no two people, save identical
twins, have e'actly the same 45" se&uence, and that although only limited segments of a person3s 45" are
scrutini<ed in the procedure, those segments will be statistically uni&ue. The 45" samples of the culprit can be
obtained from the scene of crime itself. -or e'ample
blood samples from a scene of murder or samples of seminal =uids deposited on the clothes or furniture or in the
body of the victim of rape can be used to ac&uire a sample of the culprits 45". These samples can be compared
with those taken from a possible suspect in the case.
45" evidence, apart from its use in criminal law to determine the killer or the rapist, is also employed for various
other purposes. "mongst its varied applications, 0aternity testing, 0ersonal identi)cation 1of a mutilated body or
skeletal remains2, study of the evolution of the human population and study of inherited diseases like "l<heimers
disease etc. are included.
The success rate in solving comple' cases in >riminal Law has greatly increased after the discovery and use of
45" evidence technologies. The introduction of 45" evidence in the )eld of >riminal law has particularly
facilitated convictions in the matters involving the o#ence of ?ape.
0rior to the use of 45" evidence, matters involving the o#ence of rape could be solved primarily by circumstantial
evidence only. /t was very di+cult for the victim of rape to prove the o#ence in the absence of either
circumstantial evidence or an eyewitness, which was very rare. @ince, the introduction of the 45" evidence, this
has been greatly simpli)ed. -irst samples of the seminal =uids found at the scene of crime by the investigating
o+cer are analysed. /f this is not available, then samples of the seminal =uid are e'tracted from the victims body
itself. The 45" from this sample is then compared with the 45" sample taken from the accused. /f the report
establishes that these samples match, then this acts as evidence in the court proving rape.
"s regards the o#ence of murder, 45" samples that are collected from the blood, mucous, saliva, skin, hair
samples etc, found on the crime scene are employed to e'tract the 45" sample. This provides for a very e#ective
techni&ue to nail the culprit.
45" testing should be viewed against the fact that the growing citi<en concern over crime is not merely about
mounting statistics. /t is also over the detectives3 inability to solve many gruesome crimes. The &uestion that is
often asked is how far the police are e&uipped to handle investigations using modern science and technology, and
how far does the current law of evidence in the country recogni<e evidence gathered from such tests. There is
more than a trace of popular cynicism over police willingness to spurn third degree methods in favour of scienti)c
investigation. /t is mainly in this conte't that many critics
of police performance raise the issue of 45" pro)ling fre&uently.
"part from its use to nail the culprit, 0ostconviction 45" Testing is also a very e#ective method to e'onerate the
innocent. The sophisticated technology makes it possible to obtain conclusive results in cases in which the
previous testing had been inconclusive. 0ostconviction testing will be re&uested not only in cases in which the
45" testing was never done but also in cases in which more re)ned technology may result in an indisputable
The remarkable feature of 45" is that individuals leave at least traces of it almost everywhere. " few of the
everyday objects handled by us, such as pens, telephones, mugs and keys are some of the things that re&uire
attention from a crime investigator. " variety of o#ences such as murder, rape, armed robbery% e'tortion and drug
tra+cking yield themselves to the application of 45" collection and testing. "ccording to a study by the 5ational
/nstitute of .ustice 15/.2 of the Anited
@tates3 .ustice 4epartment, there are many unusual sources of 45" evidence that need to be e'plored by an
investigator. These include saliva found on the =ap of an envelope containing a threat letter, spittle collected from
the sidewalk where a suspect in a se'ual assault case was under surveillance and blood collected from a bullet
that had injured an assailant himself in a case of murder.
>ollection of samples at a scene of crime re&uires some skill and observance of basic rules of hygiene. There are
two dangers here. Bne is that, as in the case of hand )ngerprints, there is a distinct possibility of several persons
having left their 45" behind in a scene of crime. The need, therefore, is to identify all visitors and collecting their
samples also 1apart from those of the victimCsuspect2. This assiduous process can try an o+cer3s patience.
@econdly, 45" samples are e'tremely susceptible to contamination. /t is essential that the technicians collecting
the sample adopt all precautions that a surgeon would while performing a critical surgery. "ny slackness could
render the entire operation wasteful and susceptible to easy picking of holes by the defense counsel during a trial.
!ene"ts of #edical $urisprudence:
The introduction of medical jurisprudence has immensely bene)ted both the medical and the legal )eld of work. "
better understanding and cooperation has resulted and has facilitated a smoother working of both disciplines.
0reviously unsolvable cases are now solved with ease with the development of the )eld of medical jurisprudence.
/t covers in its ambit the provision of evidence for a wide range and scope of cases. /t can be used to determine
the 0aternity of a child and also be employed in determining the identity of human bodies, which have been
mutilated beyond recognition in accidents like bomb blasts, factory e'plosions etc. /n the )eld of Evidence Laws, it
can be appropriated to solve cases involving murder, rape etc. Medical jurisprudence techni&ues like autopsy can
also be employed to discover important facts vital to the case after the person has died.
*owever, despite their vast bene)ts to the )eld of law, medical jurisprudential techni&ues are not treated as
primary evidence till date. The present /ndian Evidence "ct continues to treat technical )ndings, such as the
results of 45" tests, as e'pert evidence. This situation will continue till a legislation is drafted and enacted by the
Ander section D9 of the /ndian Evidence "ct, :EF6, it has been, inter alia, provided that, when the court has to
form an opinion upon a point of science, or art, or as to identity of handwriting or )nger impression, the opinions
upon the point of persons specially skilled in science or art or any &uestion as to identity of handwriting or )nger
impressions are relevant facts and such persons are called e'perts. The e'pression opinions upon a point of
science of persons specially skilled in science is capable of application to all future advances in science which
enable an e'pert opinion on a point.
4ue to the heavy misuse and lack of knowledge of the courts as regards scienti)c evidence, they are hesitant in
applying these techni&ues. /n order to determine whether scienti)c evidence is admissible, the court may
1:2 whether the principle or techni&ue has been or can be reliably tested,
162 whether it has been subjected to peer review or publication,
1G2 its known or potential rate of error,
1D2 whether there are standards or organi<ations controlling the procedures of the techni&ue,
192 whether it is generally accepted by the community, and
1H2 whether the techni&ue was created or conducted independently of the litigation.
The situation appears hearty only as regards autopsy reports, which have been given the status of documentary
evidence under the /ndian Evidence "ct. The merit attached to them, however, remains subjective and varies from
case to case. The complete bene)t of these medical jurisprudential techni&ues can be enjoyed only by an
enactment recogni<ing these techni&ues as primary evidence, giving it the credit it deserves.
The author can be reached at $sneha%ven&y'
(ome ) *ontact +s ) ,uest !oo& ) -bjective ) Disclaimer ) Add a Lin& ) A . ) /itemap
a!e an" #n"ian Law
"fter having studied the case laws, it is necessary to also study the de)nition of ?ape as given in the /ndian 0enal
>ode, :EH7. "s per @ection.GF9 of /0> a man is said to commit the o#ence of rape with a woman under the following
si' circumstances$
:. @e'ual intercourse against the victims will,
6. 8ithout the victims consent,
G. 8ith her consent, when her consent has been obtained by putting her or any person that she
may be interested in fear of death or hurt,
D. 8ith her consent, when the man knows that he is not her husband,
9. 8ith her consent, when at the time of giving such consent she was into'icated, or is su#ering
from unsoundness of mind and does not understand the nature and conse&uences of that to
which she gives consent,
H. 8ith or without her consent when she is under si'teen years of age.
-urther e'planation provided to the section states that penetration is su+cient to constitute the se'ual intercourse
necessary to constitute the o#ence of rape, whereas the e'ception leaves out marital rape altogether if the wife is
not under )fteen years of age.
Impediments to $ustice:
/n the present circumstances when o#ences against women are on the rise when young girls are raped by their
doctors, by presidential guards in broad daylight, the de)nition of rape to be of any deterrence falls e'tremely
inade&uate. /t does not address forced penetration of objects and parts of the body into the vagina and anus% and
forced oral or anal intercourse.
/t also does not recogni<e other forms of se'ual assaults like protracted se'ual assault by relatives, marital rape etc.
as aggravated forms of rape. This causes grave injustice to many victims. /n many cases of child rape, the child has
been penetrated through )ngers or by objects or been force to perform oral or anal se'% yet this is not considered
rape by the >ourts.
"dding to this is @ection. :991D2 of the Evidence "ct, which allows the victim to be &uestioned of her past se'ual
history which the defense uses to humiliate the victim in the >ourtroom.
Bne of the major obstacles in delivering justice in rape cases is the poor &uality of investigations. The reason behind
this ranges from gender bias and corruption to the general ine+ciency of the police. /n many cases the police have
even refused to lodge the -/? or have lodged incomplete -/?.
The victims are not taken for prompt medical e'amination, because in cases of rape, or attempt to rape medical
e'amination of the victim and of the accused soon after the incident often yields a wealth of corroborative evidence.
Therefore, such an opportunity should not be lost by the police.
The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an
obstacle also. /nspite of @upreme >ourt judgments to the contrary, lower court judges often insist on evidence of
physical resistance or marks of injuries to hold that a woman has not consented. " womanIs evidence without
corroboration is not considered su+cient.
The long time that is taken to complete a rape trial often by allowing senseless adjournments% and the giving of
evidence by the victim in the presence of the accused and the harsh cross e'amination in the >ourt are some other
major obstacles.
"s observed by Jrishna /yer, .. in ?a)&ueIs case:G$
"When a woman is ravished, what is inficted is not mere physical injury but the deep sense of some deathless
shame judicial response to Human Rights cannot be blunted by legal bigotry."
Therefore rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation,
diligent prosecution% and an e'peditious trial. -or otherwise it shall not be the law, that fails, but the applicants, the
process and application.
-ailure of law re=ects the failure of the society to protect and serve huma