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DNA test results spur questions in Kane case

DNA evidence does not confirm a woman’s allegations that Patrick Kane raped her, four sources familiar with the case told The Buffalo News.

DNA tests taken from a rape kit conducted on the woman showed no trace of Kane’s DNA was found in the woman’s genital area or on her undergarments.

The lack of that DNA evidence does not necessarily mean a sexual assault did not occur, legal experts say, and the evidence involved in this type of investigation typically consists of more than just DNA. The investigation continues, and Kane has not been charged with any crime.

Authorities are examining other evidence trying to determine what happened between Kane and the woman at Kane’s lakeshore home in the Town of Hamburg early on the morning of Aug. 2.

“The absence of DNA and semen, in itself, does not prove that there was no rape,” said Florina Altshiler, a Buffalo attorney who worked as a sex-crimes prosecutor in Alaska. “It proves that there was no ejaculation, or possibly, that the perpetrator wore a condom.”

Altshiler said she is aware of cases in which rapists did wear condoms.

Frank J. Clark, the county’s former DA, offered a different opinion.

If none of Kane’s DNA was found on the woman’s genital area or in her undergarments, that information “could be a game-changer” in Kane’s favor, he told The News.

“If the vaginal swabs taken at the hospital show no sign of his DNA, that could very well exonerate him of rape,” Clark said.

The occasion of a rapist using a condom is “extremely rare” in his experience. Clark said.

Like Altshiler, Clark said he has been following the case closely but has no direct knowledge of the DNA results.

Still, Kane’s DNA was found beneath the woman’s fingernails and on her shoulders, according to two of the sources, one of them a member of law enforcement.

Whatever occurred between the two prompted the woman to abruptly leave Kane’s home, call her brother on a cellphone, go to a local hospital to be examined for signs of rape, and to file a crime report with Hamburg Police, claiming that Kane attacked her, according to authorities and sources close to the case.

Representatives of Kane and his accuser are still attempting to negotiate an out-of-court civil settlement between the two parties, these sources said.

“Both parties, Kane and this young woman, feel that they are in the right,” said one source familiar with the situation.

Kane’s attorney, Paul J. Cambria, and the woman’s attorney, Thomas J. Eoannou, both declined to comment on the DNA evidence. So did Erie County District Attorney Frank A. Sedita III, who is overseeing the Kane investigation.

Kane gave samples of his DNA to investigators in the latter part of August, The News confirmed.

Kane on Thursday spoke for the first time since the allegation was made and told reporters that he had “done nothing wrong” and predicted he would be exonerated.

When sources who discussed the DNA evidence were asked about the presence of Kane’s DNA on the woman’s shoulders and under her fingernails, three of the sources told The News that could have come from casual contact.

That could be true, but the DNA found under her nails could also indicate there was some kind of struggle, Clark said.

“It could still be a serious matter for Kane, possibly some sort of assault or sexual misconduct, but that would probably be much less serious than a rape,” Clark said.

In New York State, a person is guilty of felony rape in the first degree if the person engages in sexual intercourse with another person by “forcible compulsion.” A person is also guilty of felony first degree rape if the victim is “physically helpless.”

“Sexual intercourse” is defined in state law as “any penetration” of the victim, “however slight.”

The state’s criminal code also allows for prosecution of numerous other sexual crimes of a lesser degree than rape, including sexual misconduct, criminal sexual act, forcible touching, aggravated sexual abuse and sexual abuse.

“There are different levels of sexual crimes … you don’t necessarily have to show that there was penetration in order to have a sexual assault,” Altshiler said.

When an alleged rape victim goes for examination in an Erie County hospital, a specially trained nurse starts by asking questions to determine what happened to the victim. The nurse asks whether the victim was touched, where the victim might be hurt and where evidence might be collected from the victim’s body.

According to medical experts, swabs are taken from the alleged victim’s body to look for traces of bodily fluids that can be tested for DNA. If the victim reports having been struck, scratched or bitten somewhere, the nurse will take samples from there. The nurse often will comb through hair to look for hairs from the assailant. The nurse almost always scrapes under fingernails to look for traces of skin or other material.

Authorities since early August have been investigating the woman’s allegation that Kane raped her in his lakeside Hamburg home after meeting her at a downtown bar. She claimed Kane invited her to his home. The News learned that she was driven there by an off-duty police officer acting as Kane’s chauffeur. He told The News that he drove Kane, the alleged victim and two other people to Kane’s home.

A grand jury was supposed to convene last week to hear testimony from witnesses, but the presentation was postponed by Sedita.

Sedita declined to comment when asked about the reasons for the delay, but one law enforcement official suggested the delay was necessary because the investigation is continuing and authorities are looking at new evidence.

If Kane does reach a civil settlement with the woman who accused him of attacking her, that settlement would not bar police or the DA’s office from continuing their investigation and potentially charging Kane with a crime.

When Sedita was asked about a potential civil settlement, he responded, “I could care less.”

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