Documenting abuse

It is important to document abuse

Records of abuse by victims and healthcare providers can make the difference between the abuser being convicted or set free. If the abuser has taken illegal charge of the victims finances and/or property, good documentation can lead to the return of money and property back to the victim.

All states have different laws about what is allowed in court. What is unique in cases of domestic violence is allowing the introduction of prior statements of abuse by the victim if unable or fearful of testifying, allowing the admission of prior acts of violence, and considering abusive behavior in child custody cases. Good documentation in medical records help the victims use these exceptions in court.

According to WomensLaw, most states allow evidence such as:

• Pictures with time and date of injuries,
• Medical documents (e.g. x-rays) of injuries from the abuse,
  
• Police reports from when victims and witnesses called for help,
  
• Testimony from victims and witnesses,
  
• A journal of written documentation of the abuse including the time, date, and description of each incident and
  
• Pictures of any objects broken by the abuser.

The WomensLaw website has a drop-down menu that grants access to the laws on Domestic Violence in each state. https://www.womenslaw.org/laws.

Florida and Kentucky
The state of Florida allows the following exceptions for domestic violence victims; use of the victim’s prior consistent statements if unable to testify; admission of prior acts of violence; admission of domestic violence evidence in child custody and visitation cases.

In Kentucky, for a victim to file for an order of protection they need to be prepared to bring the following, which includes the medical records:

• Describe abuse and threats (note use of weapons or dangerous instruments)
  
• Provide photos, medical and police records, if available
  
• Identify safety needs for you and your children, and
  
• Describe what protection and/or other needs you require (i.e. child support, treatment for respondent, etc.)

Documentation in the medical record

According to Burnett (2018) the following information should be included in the medical record to assist the victim in obtaining the best outcome in court.

• Include a description of the abusive event, including present complaints; use the patent's words verbatim (in quotation marks whenever appropriate). Include the patient's domestic violence history.
  
• When indicated (eg, patient presents an inconsistent history suggesting the true problem is being concealed), it is appropriate to include an objective description of the patient's behavior in the medical record.
  
• Include other health problems, physical or mental, that may be related to the abuse.
  
• Include the alleged perpetrator's name, address, and relationship to the patient (and any children).
  
• Detailed descriptions of the patient's injuries, including type, location, size, color, and apparent age.
  
• Thoroughly document injuries via completion of anatomical diagrams and, when possible, color photographs that should be taken before any medical treatment.
  
• When possible, and with the patient's consent (attached to the chart), document all injuries with photographs that allow assessment of their adequacy before the patient leaves the ED.
  
• At least 1 of the photographs should be a full body shot that includes the patient's face (to link injuries to patient). Others include a mid-range photograph to show torso injuries and close-ups of all wounds and contusions. Take photographs from different angles with at least 2 views of each injury, and include an object (eg, a ruler) that indicates the size of the injuries.
  
• Write the name of the patient, medical record number, date and time of the photograph, name of the photographer, location, and names and titles of any witnesses on the back of each photograph before they are attached to the medical record. The photographer should sign the photograph.
  
• Consider indicating on the back of the photograph the part of the body represented and the victim's stated cause of the injuries.
  
• Torn and damaged clothing also may be photographed.
  
• Document any injuries not shown clearly by photographs on a hand-drawn or preprinted body map.
  
• Preserve any physical evidence (eg, damaged clothing, jewelry, weapons) that may be used for prosecution. Preserve the chain of evidence.
  
• With rape or sexual assault, follow appropriate protocols for physical examination and for evidence collection and preservation during forensic examination.

Lentz (2011) has tips for documenting domestic violence in addition to what is described by Burnett (2018).

1. Use quotation marks to denote the patient's own words or use phrases such as patient states or patient reports to indicate information that came directly from the patient. When you use quotation marks, the statement must be an exact repetition of what the patient said, not paraphrased.
   
2. Avoid legalese. Document in a factually neutral manner, avoiding phrases or words such as alleges, which have specific legal meanings.
   
3. Identify the person who hurt the patient as stated by the patient, using quotation marks and recording the identifying information. For example, "my husband," "my stepmother," or "my wife kicked me."
   
4. Do not write your personal conclusions about the situation, such as patient is a battered woman. Document the facts clearly and objectively and let others draw conclusions in the future.
   
5. Do not put the term domestic violence or abbreviations such as "DV" in the diagnosis fields of a patient's medical records. It is up to the courts to determine whether domestic violence has occurred.
   
6. Record your observations of the patient's general appearance or demeanor. For example, Patient crying and seems agitated.
   
7. Record the time of day the patient is examined. If possible, indicate how much time has passed between the incident and the patient's arrival at your facility.

It is important also that the victim keep records of abuse for the court. This record keeping can be dangerous for the abused if the abuser is still living with the victim or has access to his or her living space. The initiation of legal action can be a trigger for increased abuse. Any documentation needs to be collected in a safe manner. Here are some suggestions of what is useful that the victim can record from Lim (2018).

• A copy of a record of abuse events given to a trusted family member, friend, or domestic violence advocate and one copy stored in a safe deposit box.
  
• Record of harassing and threatening phone calls and conversations from the abuser. Some states allow phone calls to be recorded if one party knows that it is being recorded, that is the victim, but other states mandate that both parties know it is being recorded. See below what your state requirements are.
  
• Document number of phone calls by taking a screenshot of the call log that includes the date, time and the number of calls. Take a photo of the caller ID to show it is the abuser calling.
  
• Do not delete threatening and harassing emails and text messages. Print them out and make copies for a trusted person and the safe deposit box. Take screenshots of the emails. Do not forward the emails because it destroys the IP address of the sender.
  
• Because text messages might be automatically deleted due to space usage, screenshot threatening and harassing messages. Make sure the picture includes the abuser’s phone number.
  
• Take screenshots of threatening and harassing posts or messages from the abuser on all social media sites like Instagram, Twitter, and Facebook.
  
• If they have trusted friends, co-workers, and family members, ask them to help document the abuse. For instance, have the co-worker write down how many times the abuser has shown up to the workplace or how many times the abuser calls the victim.
  
• If the abuser is stalking the victim, have the victim write down all the dates, times and descriptions involved in the incidents.

Federal Law about recording phone calls or other conversations

Federal law (18 U.S.C. § 2511) requires one-party consent, which means you can record a phone call or conversation so long as you are a party to the conversation. No one can record a conversation between two or more people without being part of the conversation or having permission from at least one party.

State Laws about recording conversations

Most states have enacted laws that are similar to the federal statute, meaning that they generally require one-party consent to a recording of conversations. Others require all parties to consent to the recording.

One-Party Consent States

Alabama Alaska Arizona Arkansas Colorado District of Columbia Georgia Hawaii Idaho Indiana

Iowa Kansas Kentucky Louisiana Maine Minnesota Mississippi Missouri Nebraska New Jersey

New Mexico New York North Carolina North Dakota Ohio Oklahoma Rhode Island South Carolina South Dakota Tennessee

Texas Utah Virginia West Virginia Wisconsin Wyoming

All-Party Consent States

These states clearly or potentially require consent from all parties under some or all circumstances:

California Connecticut Delaware Florida Illinois Maryland Massachusetts Michigan

Montana Nevada New Hampshire Oregon Pennsylvania Vermont Washington

Reference

Burnett, L. (2018). What should be documented in the medical record of a victim of domestic violence? https://www.medscape.com/answers/805546-157836/what-should-be-documented-in-the-medical-record-of-a-victim-of-domestic-violence

Lentz, L. (2011). 10 tips for documenting domestic violence. Nursing Critical Care: 6(4) 48.

Lim, S. (2018). How to document abuse. BTSADV. https://breakthesilencedv.org/how-to-document-abuse/.

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