58. The medical evidence indicated that there was no permanent trauma to the vaginal area of the victim such as scarring. (U)
59. The female victim, her brother who was kidnapped by the defendant, and the victim's mother received counseling for the psychological stress suffered as a result of the attack.
60. On or about May 30, 1994, the Defendant removed the caulking from around the window in his jail cell at the Snyder County Jail. (U)
61. The Defendant has been charged with attempted escape from the Snyder County Prison; however, there has been no conviction for that offense. (U)
62. The alleged escape attempt involved only the removal of caulking material from the window in the cell of the Defendant. (U)
63. The Defendant had pled guilty to the Federal firearms offense at the time of his arraignment, and had pled guilty for the sexual assault in the state prosecution. (U)
64. The Defendant has an extensive criminal record which has been adequately reported by the Probation Department in their (sic) presentence investigation report. (U)
65. The Defendant was determined to have mental apparitions as to sexual matters in 1977, and the Defendant was incarcerated in the Winnabago Mental Health Institute in Oshkosh, Wisconsin for approximately three years. (U)
66. There are no other offenses either criminal or civil which are not reported in the Defendant's presentence investigation report. (U)
67. The existing presentence investigation report has increased the sentencing offense level by four levels because of the presence of an abduction. (U)
68. Any additional factual statements set forth in the discussion portion of this opinion constitute findings of fact by this Court and are hereby incorporated by reference as though fully set forth herein.
The first matter for consideration is whether the female victim suffered serious bodily injury. Under § 2A3.1 of the sentencing guidelines, a 2-level increase in the offense level is required if such injury occurred. The commentary accompanying § 1B1.1, specifically application Note 1(j), defines "serious bodily injury" as "...injury involving extreme physical pain or the impairment of a function of a bodily member, organ or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation."
In United States vs. Tipton, 11 F.3d 602 (6th Cir. 1993), cert. denied, 114 S. Ct. 2692, 129 L. Ed. 2d 823 (1994), the Court of Appeals for the Sixth Circuit affirmed a district court decision imposing a 2-level increase for serious bodily injury suffered by the victim of a sexual assault. Although the adult victim in that case had no signs of physical injury or trauma, the Court concluded that because the victim required medical intervention in the form of a post-rape examination and was found by witnesses after the assault curled in the fetal position, the district court's finding of "serious bodily injury" and a 2-level increase under the guidelines were appropriate.
Here the evidence of serious bodily injury is more compelling. The victim sustained bleeding after the assault. She suffered lacerations of the vagina and rectum. Her hymen was so swollen from the rape that the doctors decided not to perform a pelvic examination immediately. She experienced pain and difficulty in the most basic bodily functions and underwent counselling and follow-up medical care.
It is important to note that after the rape of the ten year old the pediatrician would not perform an examination of the internal genital area because of the extreme pain which he anticipated she would suffer. Thomas F. Hahn, M.D., testified as follows:
Q Now, in connection with the physical exam that you conducted, was there any kind of internal examination conducted of the -- the internal genital area?