Documenting wife abuse: a guide for physicians
Lorraine E. Ferris,* PhD, CPsych; Margot McMain-Klein, MHSc; Laura Silver,§ LLB
CMAJ 1997;156:1015-22
From *the Division of Community Health, Faculty of Medicine, University of Toronto, Toronto, Ont.; the Clinical Epidemiology Unit, Sunnybrook Health Science Centre, North York, Ont.; the Institute for Clinical Evaluative Sciences in Ontario, North York, Ont.; and §the Ontario Ministry of the Attorney General, Toronto, Ont.
This article has been peer reviewed.
Reprint requests to: Dr. Lorraine E. Ferris, Division of Community Health, Faculty of Medicine, University of Toronto, McMurrich Building, 12 Queen's Park Circle, Toronto ON M5S 1A8
© 1997 Canadian Medical Association (text and abstract/résumé)
See also:
Contents
Abstract
An estimated 12% to 30% of women are assaulted by their male partners at least once during the relationship. Therefore, in their everyday practice, physicians are likely to encounter women who have suffered domestic abuse. The authors define wife abuse, outline epidemiologic aspects and discuss common signs and symptoms. In cases of suspected or confirmed abuse, it is very important for physicians to document the details of the injuries, the patient visit, any treatment and follow-up as well as to screen for associated conditions and ensure that any samples taken are not tampered with. When asked to disclose information by police or courts, physicians need to know when they are obliged to submit copies of their patients' medical records, when patient consent is required, what information should be divulged and how to defend this information in court. The authors present information about the necessary, relevant and appropriate evidence to be collected and documented for both medical and legal purposes. They also discuss the criminal justice system and the role of physicians in legal proceedings concerning wife abuse.
Résumé
On estime que de 12 % à 30 % des femmes sont attaquées par leur partenaire masculin au moins une fois durant la relation. C'est pourquoi les médecins risquent, dans leur pratique de tous les jours, de rencontrer des femmes qui ont été victimes de violence familiale. Les auteurs définissent la violence conjugale, présentent un aperçu des aspects épidémiologiques et discutent de signes et de symptômes communs. Dans les cas d'abus soupçonnés ou confirmés, il est très important pour les médecins de documenter les détails des blessures, les visites de la patiente, tout traitement et suivi, de chercher à dépister des problèmes connexes et d'assurer qu'on n'altère aucun spécimen prélevé. Lorsque la police et les tribunaux leur demandent de divulguer des renseignements, les médecins doivent savoir quand ils sont tenus de fournir des copies des dossiers médicaux de leurs patients, quand le consentement d'un patient est requis, quels renseignements il faudrait divulguer et comment défendre ces renseignements en cour. Les auteurs présentent des renseignements sur les preuves nécessaires, pertinentes et appropriées à recueillir et à documenter à des fins judiciaires et médicales. Ils discutent aussi du système de justice criminelle et du rôle des médecins dans le cadre de procédures judiciaires pour violence conjugale.
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Introduction
Because domestic abuse is associated with many adverse effects on health, physicians are likely to encounter women who have been abused. In fact, studies show that abused women consume a disproportionate amount of health care resources.[1] Day[2] estimates that, in 1992, medical treatment of abused women in Canada cost $1.5 billion.
Wife abuse is not only a health problem but also a crime. Hence, physicians who treat abused women may be required to deal with the legal system, particularly if the perpetrator is charged. The medical and legal systems differ in their approaches to assessing the truth. This may be why there is little information for physicians that combines both perspectives. Physicians are trained to consider the most probable circumstance, the most probable diagnosis, the treatment likely to be most effective and so on. In criminal law, however, "the most probable circumstance" is not enough to prove that a victim was abused. Rather, legal proof is subject to the rigorous standard of proof "beyond a reasonable doubt." This fundamental difference between the 2 professions may affect how physicians and lawyers interact. In practice, however, physicians, lawyers and courts all expect scrupulous preparation of precise, detailed and meticulous medical documentation, regardless of differences in the use of this information. Consequently, legal standards and requirements do not necessarily conflict with the duties and obligations of physicians.
This article provides a medical and legal perspective on dealing with suspected and alleged cases of wife abuse. It gives a definition of wife abuse, an overview of the relevant epidemiologic aspects, an outline of the types of injuries associated with wife abuse and issues in the detection of abuse and the laying of charges. In addition, this article presents a medical and legal perspective on the necessary, relevant and appropriate clinical evidence to be collected and documented in cases of wife abuse. Information about the criminal justice system and the role of the physician in legal proceedings is also provided. Violence by women against male partners and violence in gay and lesbian relationships are not addressed here, but many of the issues are relevant to these situations as well.
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Definition of wife abuse
The Ontario Medical Association Committee on Wife Assault[3] has defined "wife abuse" as "physical or psychologic abuse directed by a man against his female partner, in an attempt to control her behaviour or intimidate her." In this article, we consider "wife abuse" to include physical assault, sexual assault or psychologic abuse directed by a man toward a woman with whom he has or has had an intimate relationship, regardless of the legal status of that relationship. In Canadian law, most forms of wife abuse are a criminal offence. However, psychologic abuse, without accompanying harassment, intimidation, threats or assault, is not an offence.
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Epidemiologic aspects of wife abuse
MacLeod[4] estimates that 1 in 10 Canadian women is assaulted by her male partner at least once during their relationship. In a Statistics Canada survey of 12 300 women over the age of 18 who had ever been married or in a common-law relationship, 3 out of 10 reported having been assaulted by a male partner at least once.[5] In 65% of these cases the women reported that the violence occurred more than once, and in 32% of cases they reported that it happened more than 10 times.
Women are more likely to be assaulted, raped or killed by a current or former partner than by all other types of assailants combined.[6] In Canada, the rate at which women are murdered by their spouse is 0.83 per 100 000.[7]
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Types of injuries and assaults
Abused women are more likely than accident victims to sustain multiple injuries.[8] Episodes of assaultive behaviour typically become more frequent and severe, despite assurances from abusers that the behaviour will never be repeated.[9]
The pattern of injuries in abuse cases typically involves injury to the head, face, neck, breasts and abdomen; this pattern is distinguished from accidental injuries, which usually involve the peripheral parts of the body. Stark, Flitcraft and Frazier[8] reported that victims of domestic violence were 13 times more likely than accident victims to sustain injuries to the breast, chest or abdomen.
Pregnancy is a time of particular concern. Injuries to the breast, chest and abdomen are common during pregnancy and may escalate as a pregnancy progresses.[10,11] A history of abuse is one of the strongest predictors of abuse during pregnancy.[11,12] Physical abuse during the first trimester may also be regarded as a risk factor for postpartum abuse. In addition, such factors as social instability, unhealthy lifestyles and physical health problems have been associated with abuse during pregnancy.[11] Trauma during pregnancy may have significant negative implications including miscarriage, abruptio placentae, fetal loss, premature labour and premature delivery. It may also lead to low birth weight.[13]
The prevalence of sexual assault in intimate relationships is a neglected topic. In one of the first studies of the prevalence of marital rape, it was estimated that 14% of women who had ever been married had been sexually assaulted by their husbands at least once.[14] Women experience more sexual assaults perpetrated by present or former marital partners than by acquaintances, other family members and strangers combined.[6] Sexual abuse occurs most often in relationships in which other forms of abuse are also present; one study found that sexual abuse was reported in 54% of violent marriages.[6]
Women who are abused physically are usually abused psychologically as well. Psychologic abuse includes control through social isolation, excessive jealousy and surveillance, threats of harm, intimidation, verbal denigration, attribution of blame for the abuse to the victim, and an alternating cycle of acute battering with repentance and reconciliation.[15] The term "battered woman syndrome" describes the stress reactions experienced by many victims of wife abuse. The most common symptoms of this syndrome are fear, depression, guilt, low self-esteem and symptoms of post-traumatic stress disorder. Many of these symptoms may help a woman cope with the abuse; however, these coping strategies may also contribute to a paralysis that leads the woman to stay with the abuser rather than leave.[16]
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Abused women and the health care system
Abused women are important consumers of medical care. Determining the proportion of abused women who seek medical assistance is difficult, but studies estimate that between 8% and 39% of abused women seek care.[17,18] Abused women are likely to seek medical assistance for injuries incurred during conjugal violence on more than 1 occasion.[5,19,20]
Detection
Victims of wife abuse may present with a confusing pattern of symptoms. Common complaints include headache, insomnia, choking sensations, hyperventilation, gastrointestinal pain, chest pain and pelvic and back pain. Abused women may also present with anxiety, neurosis, depression, suicidal ideation and substance abuse and may not comply with drug therapy.[2123] McLeer and Anwar[24] reported that 30% of women presenting to emergency departments with traumatic injuries incurred the injuries as a result of domestic violence. Physicians' failure to diagnose domestic violence may result in inappropriate treatment, including prescription of sedatives or antidepressants, which may increase the risk of suicide or place the woman at greater risk of injury from escalating violence.[25]
Despite the large proportion of abused women who seek medical assistance, the rates of detection are low.[8,18] Questioning patients directly about abuse in suspected cases is crucial.[26] If a woman is not asked about abuse, she will probably not bring it to her physician's attention.[27] She may fear reprisal, be ashamed of her situation or fear a breach of physicianpatient confidentiality. For disclosure and discussion to occur, physicians need to create an environment in which the woman feels safe and supported.[28] A large Canadian study involving 963 family physicians and general practitioners[29] and a large provincial study involving 505 family physicians[30] found that the vast majority of physicians believed that they should ask women with suspicious injuries and emotional difficulties about abuse.
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Abused women and the Canadian legal system
Since 1982, all provincial and territorial governments have affirmed that wife abuse is a crime and have directed police forces to lay charges when there are reasonable and probable grounds to believe that an assault has occurred.[31] There is evidence that this approach reduces the incidence of violence. Burris and Jaffe[32] showed that, as a result of the directive to police to lay charges in London, Ont., significantly fewer charges were withdrawn or dismissed. Jaffe and associates[33] found a marked 25-fold increase in assault charges and an overall reduction in all forms of violence during the 12-month period after the directive was issued. In a study conducted in the US, Sherman and Berk[34] found that arresting the abusive partner was twice as effective as other police strategies, such as separating the couple or offering advice, in reducing victim-reported repeated violence during a 6-month period.
The role of a police officer who responds to a domestic-violence call is to restore order, investigate, gather evidence and protect victims of violence. During the investigation, the police gather all relevant information about the assault, including statements from the victim and witnesses, medical records (discussed in more detail later), and other evidence, including weapons that may have been involved in the assault, as well as taking photographs of the injuries and the scene. If the investigation indicates that there are reasonable and probable grounds to believe that a crime has been committed, the officer lays appropriate criminal charges. The officer then prepares a summary of the case for the Crown Attorney. The decision to lay charges may be independent of the complainant's wishes. Should the police choose not to charge the abuser, a private citizen can lay a criminal charge. The complainant must attend the office of a Justice of the Peace and convince him or her that there are reasonable and probable grounds to believe that an offence has been committed.
Violations of the Criminal Code may result in 1 of 3 types of criminal charges. Summary offences include less serious crimes and generally carry a maximum penalty of $2000 or 6 months' imprisonment. Indictable offences are more serious crimes, including assault causing bodily harm, aggravated sexual assault, attempted murder and murder. Hybrid offences are those that could proceed either summarily or by indictment, depending on the facts and circumstances of the crime; these offences carry a maximum penalty of 18 months' imprisonment. Appendix 1 is a glossary of legal terms relevant to wife abuse.
Specific criminal charges that may be laid in a case of wife abuse include assault, criminal harassment, aggravated assault, assault causing bodily harm, assault with a weapon, sexual assault, aggravated sexual assault, sexual assault causing bodily harm, sexual assault with a weapon, threatening to cause death or bodily harm, uttering threats, intimidation, forcible confinement, attempted murder and murder. Other charges may include violation of a court order, breach of a bail or probation condition, and breach of a peace bond.
To charge someone with an offence, the police need only have reasonable and probable grounds to believe that the person has committed the offence. However, to obtain a conviction, the Crown must prove the charges beyond a reasonable doubt. Whereas the police are responsible for investigating the crime and deciding whether to lay charges, the Attorney General's office is responsible for conducting the prosecution. Only the Crown can withdraw the charges once they are laid. Hence, a case may proceed despite the complainant's desire to withdraw the charges.
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Interaction between police and physicians
During their investigations of alleged crimes, police officers may request information from physicians concerning care or services rendered. Physicians may release medical information only if the patient has consented to its release. In the absence of consent, physicians must release information if the police have a search warrant, subpoena, summons or other court order.[35] Police officers have no absolute right to medical information, even when it is needed for the investigation of a crime. A request by the police or a lawyer's letter demanding production of medical documents is not sufficient authority for a physician to release patient records.
Viewed from a regulatory perspective, physicians are required to keep confidential any information gathered from a patient or from a colleague regarding a patient; they may divulge this information only with the consent of the patient, unless otherwise required by law.[36,37] Although physicians may think it is in the patient's best interest to cooperate with a police investigation, a patient's right to confidentiality must be protected. Furthermore, the woman's consent to disclosure of confidential medical information is valid only when the consent is voluntary and informed.[38] When a patient signs a consent form for the release of information, the form should be witnessed and dated. In obtaining informed consent to release patient records, a physician should consider that one of the Crown Attorney's duties is to disclose all relevant information to the lawyer representing the person accused.[38,39] Therefore, he or she should keep in mind that a medical record obtained by the police and subsequently by the prosecution will also be reviewed by the defence lawyers and the accused.
The most common way for the courts to obtain medical documents about patients who do not consent to release of their records is through a subpoena (in a criminal proceeding) or a summons (in a civil proceeding). A subpoena or summons is a document that compels a witness to attend a proceeding on a given date. There are serious consequences for failing to comply with a subpoena: a physician failing to attend court may be arrested and compelled to attend court or face charges for breach of a court order. Subpoenas may also require witnesses to bring to court records or documents in their possession. If a subpoena is received, the documents should not simply be handed over to the lawyer demanding them. A physician who is requested to bring documents to court pursuant to a subpoena should release the documents only in court to the judge. Physicians should photocopy the material to ensure that a complete copy is kept.
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Medical findings and the criminal justice system
The Canadian criminal justice system has the dual responsibility of providing fairness to the accused and protecting the public. The process involves presenting and testing evidence in court.
During a trial, rules of evidence determine what a court may consider when deciding the facts of a case. The onus is on the courts to determine what actually happened through a determination of the facts. The judge or jury must then apply the law to the facts in order to determine the consequences.[38] The evidence -- documentary, real and demonstrative, or oral -- must be deemed legally relevant to the issues in order to be presented in court.[38]
Documentary evidence
Documentary evidence is any piece of evidence in written form, including medical records, reports and sworn affidavits.[38] In the past, courts were reluctant to allow medical records to be presented because such documents were thought to infringe fundamental principles of evidence law, such as the rule prohibiting the admission of hearsay evidence.[40] Hearsay rules prevented the judge or jury from considering out-of-court written or oral statements. The main reason for excluding hearsay was that there was no opportunity to test the evidence through cross-examination.[41] Thus, a medical report was inadmissible if the physician who authored it was not present in court to testify. The strict rule against hearsay has since been modified. Now, it is generally accepted that medical reports by qualified physicians are admissible as evidence without the physician being present.[42,43] In most provinces, medical records from hospitals and physicians' offices are admissible, provided that such records have been made in the usual course of business.[44] However, when the factual assertions in a medical record are contentious or when the opposing party insists on the right to cross-examination, the physician may be called to testify.
Real and demonstrative evidence
Real and demonstrative evidence includes specific objects that illustrate issues of the dispute.[38] These objects may include photographs, weapons, torn clothing and broken objects. To be admissible in court, it must be shown that the evidence has not been tampered with from the time of its original collection until its presentation in court (i.e., it can be traced back to the original source through an appropriate succession). For example, if a specimen was taken from the victim, it must be documented that the item came from her and that the test was administered correctly. Each successive transfer of the evidence should be documented, since any breaks in the continuity of evidence may result in the evidence being inadmissible.[44] (See Best practice for documenting wife abuse.)
Oral testimony
Oral testimony, or viva voce evidence, is given by witnesses who testify in court under oath or its equivalent.[38] The evidence presented by a competent witness must generally involve what he or she has directly perceived or experienced. In cases of wife abuse, physicians may be called as witnesses by either the defence or prosecution lawyers. A physician is most likely to be called by the Crown to corroborate the allegations of the assault. If a physician is called to testify, it is usually to provide information about the injuries or to act as an expert witness. In providing information about the injuries, a physician is not asked to express an opinion or conclusion but may be asked to give testimony about the events surrounding the evaluation and treatment of a patient. Under these circumstances, the physician is required to testify only about matters with which he or she is personally familiar or about which he or she has direct knowledge.[38] Testimony concerning the physical examination, treatment, photographs or diagrams may be used to corroborate or confirm that there was an assault or to prove the nature and extent of the injuries and the degree of pain suffered by the complainant. Physicians may also be asked to provide a history of an assaultive relationship.
Physicians may also be called to provide their expert opinion. Before being permitted to give an opinion, the witness must be qualified as an expert in the relevant field.[45] A witness who has been established as an expert as a result of his or her training or experience (such as a physician) may, for example, be able to offer an opinion on how the injuries were caused.[46] Typical expert opinions elicited from physicians who have treated victims of wife abuse include whether the injury is consistent with the application of deliberate force (e.g., the pattern of injuries rules out an accidental injury), the type of assault (e.g., whether a weapon was used), the degree of force exercised or an estimate of the age of the injury.
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Best practice for documenting wife abuse
Since wife abuse may involve a confusing clinical presentation, appropriate medical documentation is essential to its identification and appropriate follow-up. It is also very important from a legal perspective, since proper documentation may assist the prosecution in proving the charges against the accused. There are several excellent clinical guidelines on the treatment and management of wife abuse.[9,23,47,48]
As discussed earlier, to make an accurate diagnosis and to initiate appropriate management, physicians need to ask the patient about the nature and cause of the presenting injuries. When physical injuries are inconsistent with the woman's explanation of how they occurred, or when a woman presents with continuing complaints that do not have an organic origin, the possibility of abuse must be considered. Once the physician decides that abuse is possible or probable, regardless of whether the patient confirms its existence, he or she needs to be aware that the violence may escalate quickly or continue for a long time. Generally, it is best to raise a question in the medical record about whether the injuries are the result of wife abuse as soon as it is suspected, much as one would document other working hypotheses concerning the cause of an illness.
Abuse is usually a continuing problem. Although it may be emotionally challenging and draining for a physician to see a woman return to her abusive spouse, especially if she has a long history of abuse, documentation of the assaults and the observed sequelae is important. This documentation and attention to detail are an essential component of short- and long-term intervention.
In cases of alleged or suspected wife abuse, a detailed history of the reported cause of the injury, in the patient's words, should be obtained and documented. Physicians should document information about the cause of the injury without recording long descriptions that deviate from the topic. Table 1 provides a list of the information that should be included in the medical record.
The medical record should present the clearest possible picture of all injuries sustained. Therefore, a complete physical examination, including a neurologic examination when appropriate, should be performed in all confirmed and suspected cases of wife abuse. The examination should be carried out systematically, to avoid omissions. Abused women should be questioned about whether they were forced to have sex or to perform sexual acts. If so, and if they consent to be examined, the women should be examined with the use of the sexual-assault evidence-collection kit according to standard policies and procedures. This type of examination may require a referral to a physician who deals with sexual assault cases. Information from this examination should be included in the medical record.
It is also important to document the woman's psychologic state and all sources of information used to support any conclusion that the physician may draw. Physicians should understand the psychosocial sequelae of wife abuse so that they are familiar with the various presentations and the context in which the woman discusses the abuse. When dealing with a suspected case of abuse, the physician should take careful notes of the conversation with the patient and record her psychologic demeanour as well as accompanying behaviour, facial expressions and gestures. Although every effort should be made to interview or examine the woman alone, if this is impossible, this fact should be documented.
Abused women with children should always be asked directly whether their partner ever hits or abuses the children. If the woman confirms this, or if child abuse is suspected, the appropriate child and family authority must be contacted. The woman should be informed that the physician is legally required to report child abuse.
If physical evidence of the assault was obtained during the medical examination, this evidence should be saved and its continuity ensured. As common practice dictates, specimens should be placed in a container (e.g., blood vial, specimen jar, envelope or paper bag) and labelled with the patient's name, her hospital identification number (if applicable), the date of collection, the nature of the sample's content and the initials of the collector. The patient's medical record should then indicate that samples were collected and to whom they were transferred (e.g., laboratory or police officer). If evidence is collected and then saved -- for example, in cases where charges have not yet been laid -- efforts should be made to ensure that its condition is maintained. Containers should be sealed, taped and initialled so that they are tamper-proof, and they should be stored in a safe place.
Photographs are an advantageous way of accurately documenting the exact location and appearance of injuries.[44] However, some physicians may feel uncomfortable offering to take photographs or may find it difficult to do so. From a legal perspective, physicians are not accountable for failing to photograph injuries. If a physician offers to take photographs, the patient's written consent is required.[49] A Polaroid camera, which produces instant pictures, is useful. It is best to take colour photographs and to take photographs before medical intervention. Injuries should be photographed from several angles, and a reference object (e.g., a coin or ruler) should be used to show the size of the injury. To ensure that the woman can be identified, her face or hand should appear in at least 1 photograph. If possible, the injuries should be photographed at a distance and close up, to capture the details of the injury. The following information should be indicated on every photograph: the date, the location of the injury and the names of the patient, photographer, witnesses and attending physician.
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Conclusion
Physicians are often in a unique position to interact with victims of wife abuse when these women seek medical treatment for physical injuries, psychologic distress and somatic complaints. Dealing with wife abuse, unlike many other health concerns, requires an appreciation of both medical and legal issues.
The steps outlined in this article facilitate physicians' interaction with the legal system and enhance the contribution of medical documentation to the prosecution of abusive spouses. Furthermore, relevant and appropriate documentation of wife abuse and its sequelae is an essential component of both long- and short-term health interventions for the victims.
New initiatives to address the problem of wife abuse are needed. For example, physicians could play an important role in advocating continued funding to shelters to allow women to leave abusive relationships. Efforts to ensure that medical curricula emphasize the detection of wife abuse, appropriate interventions and relevant documentation are important. Further work concerning the medical and legal implications of wife abuse is also needed. We are currently conducting research to refine a standardized form concerning wife abuse that will help physicians document the necessary, relevant and appropriate clinical information in the medical record.
We thank Sheila Mawji, the Women's Bureau, Ontario Ministry of Health, for her insightful comments on an earlier version of this manuscript and her support for the project and Katalin Kennedy, Health Canada, for her support, encouragement and valuable input.
This project was funded by Health Canada (grant no. 4887-06-94-024). This research was also supported in part by the National Health Research and Development Program, Health Canada, through a National Health Scholar Award to Dr. Lorraine E. Ferris.
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