When Ms N, a 48-year-old nurse practitioner, heard her name being paged across the hospital’s PA system, she knew why. As one of only a few clinicians on staff with experience with sexual assault victims, Ms N knew that getting paged probably meant that one was being brought in. She was correct.

Two officers were standing in the emergency department with a trembling woman, helping her fill out paperwork. Ms N asked a nurse to put the patient in an examination room while she spoke with the officers.

“We got a 911 call from the victim. She said she had been sexually assaulted by her husband, and that he told her he was going to kill her,” said one of the officers. “When we got there, she was barricaded in the bathroom, clearly upset, dressed only in a towel. She eventually came out but ran out of the house in below-freezing temperatures still wrapped only in a towel. We convinced her to come back inside where she began crying uncontrollably. She said that her husband had physically assaulted her, and that he had choked her with one hand while penetrating her vagina with the other. We have another officer at home with the husband, who has denied everything. We were also called there 2 days ago for a domestic dispute where the wife was the aggressor, so there have been issues in the past.”

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Ms N thanked the officer for the information and went in to see the patient, Mrs B, 31. The
younger woman was still shaking. Ms N spoke to her soothingly and calmed her down enough to get her story.

The patient told Ms N that she had been sleeping in her toddler’s room because she and her husband had been having some problems, but at 5 AM her husband had woken her up and told her to take a shower.

“I knew what that meant,” said Mrs B. “That’s always what he makes me do first…”

Her husband then ordered her out of the shower. He put his right hand against her throat and
used his left hand to reach into her vaginal area to claw and scratch her. Mrs B made a hook shape with her finger and described how it felt like he was trying to “pull out” her uterus.

“I felt a burning feeling … down there,” Mrs B said, “and he was choking me so I couldn’t breathe. When he stopped, he told me that if I told anyone he would kill me and the kids.”

Ms N carefully noted what Mrs B told her. During the sexual assault examination, Ms N noted petechiae and red marks on Mrs B’s vagina, as well as a blood stain on her underwear. Ms N filled out the requisite paperwork for the police report, and Mrs B’s husband was subsequently arrested and charged with sexual assault.

Two weeks after the incident, Mrs B wrote a letter to the prosecutor asking that the charges against her husband be dropped. In her letter, Mrs B stated that she had been diagnosed with post-traumatic stress disorder as a result of being kidnapped and sexually assaulted while fleeing the civil war in Liberia, her birth country. She had recently been having nightmares about the kidnapping, and her husband was in one of her bad dreams; that was what had caused her to call the police. She stated that her husband was a loving, nonviolent person who was innocent of the charges.

The prosecutor, however, declined to drop the charges and took the case to trial. At trial, Ms N testified about her examination of Mrs B, as well as what Mrs B had told her at the time.

Mrs B also took the stand and testified that she had experienced a flashback; she had confused the present with her traumatic past experience, and she stated that any injuries were self-inflicted. After all of the evidence was presented, the jury deliberated and eventually found Mr B guilty. He was sentenced to 12 years in prison.

Mr B immediately appealed his conviction, arguing that the lower court had abused its discretion by admitting Mrs B’s out-of-court statements to Ms N (hearsay), among other arguments.

Legal Background

Although it may be surprising, a prosecutor in a criminal case can press charges against a defendant even if the victim decides she no longer wants to proceed. There is a good reason for this. In domestic relations situations, in particular, there is a chance that the victim might be pressured to drop the charges. Prosecutors have responded to this issue by making their own decisions about whether a case should be prosecuted rather than letting the victim make that decision. So, even though Mrs B no longer wanted to press charges, that decision was now out of her hands.

In his appeal, Mr B argued that his wife’s statement to Ms N was inadmissible hearsay. The court of appeals agreed that such statements are hearsay and thus can only be admitted if they fall under an exception to the rule forbidding hearsay. However, the court concluded that the statements were, in fact, an exception to the hearsay rule because they were made “where the declarant knows that a false statement may cause misdiagnosis or mistreatment” and thus are credible. The court noted that Ms N had testified that she informed Mrs B that she would perform a sexual assault examination, provide medical treatment, and “care for any injuries that may have happened during the assault.” Therefore, any statements Mrs B made at that time were admissible because they are assumed to be true because they were made in the course of medical treatment. The court of appeals upheld Mr B’s conviction. =

Protecting Yourself

Having to testify in court is never fun, even if you are not the defendant. Attorneys from the other side will be trying to impeach your testimony, attack your credibility, and discount the importance of what you have to say. The best way to protect yourself is preparation, and that starts from the very first interaction with the patient or victim. If it is a victim, explain that the examination is for police reporting purposes and that you will be providing medical evaluation and treatment for any injuries. Take copious and detailed notes; they may become crucially important if there is a change in story later in the process. And finally, be sure that the attorney who has called you to testify has properly prepared you for what to expect. A practice run isn’t a bad idea either, especially if you aren’t comfortable with public speaking.

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Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.