The purpose of written reports and oral testimony is to assess claims, document evidence of torture and ill-treatment, and effectively communicate this evidence to adjudicators. The purpose is not to “prove” or “disprove” the individual’s allegations of abuse. The health professional provides expert opinions on the degree to which the his/her findings correlate with the individual’s allegation of abuse. Clinical evaluations are often critical in enabling adjudicators to make accurate and just decisions in medico-legal cases. In addition, each written report and oral testimony represents an opportunity for clinicians to educate adjudicators on physical and psychological evidence of torture.
Expert medical reports and testimony can be of value in an number of different contexts:
- The prosecution in national or international courts of perpetrators alleged to be responsible for torture
- Claims for reparation
- Challenging the credibility of statements extracted by torture
- Identifying the need for further care and treatment
- Identifying national and regional practices of torture in human rights investigations
- Support of allegations of torture in asylum applications.
Medico-legal (or forensic) evaluations should be conducted with objectivity and impartiality, and this should be reflected in written reports and testimony. The evaluations should be based on clinical expertise and professional experience. As mentioned in Module 2, the ethical obligation of beneficence demands uncompromising accuracy and impartiality in order to establish and maintain professional credibility. When gathering information to prepare a report, it is important not to over-interpret the findings and so diminish the quality of the evidence. That is to say, however sympathetic the health professional may be to the individual, the report or certificate should not say more than can be supported by the evidence and the level of competence of the report writer to interpret it, or the case might be undermined.
Clinicians who conduct evaluations of alleged torture victims should have specific essential training in forensic documentation of torture and other forms of physical and psychological abuse. They should also have knowledge of prison conditions and torture methods used in the particular region where the individual was imprisoned and the common after-effects of torture. The written reports and oral testimony should be factual and carefully worded. Jargon should be avoided. All medical terminology should be defined so that it is understandable to lay persons. Many words have a specific meaning in medico-legal reports that differ from their use in everyday speech, such as ‘history’ or ‘laceration’. It may be necessary to append a glossary to the report, so that readers do not misinterpret some of the words by applying their everyday definitions.
The clinician should review the declaration (testimony) and any relevant medical or legal materials that the alleged torture victim has presented to the court, as it generally includes information that may be compared with the clinician’s evaluation. Any discrepancies that may arise should be pursued with the individual and/or the individual’s attorney to a point of clarity. Adjudicators often interpret inconsistent testimony as a lack of credibility on behalf of the alleged torture victim, when, in fact, such inconsistencies are often related to the presence of psychological, cultural, linguistic or other factors.
Effective written reports and oral testimony not only require knowledge of torture and its after-effects, but they also require accurate and effective communication skills. Such skills are not typically part of clinical training. Written reports and oral testimony of clinicians should not include any opinion(s) that cannot be defended under oath or during cross-examination. Furthermore, the quality of any testimony, whether written or oral, can only be as good as the interview and examination conducted.
Physical and psychological evaluations of alleged torture victims may provide important confirmatory evidence that a person was tortured. However, the absence of such physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars. Historical information such as descriptions of torture devices, body positions and methods of restraint, descriptions of acute and chronic wounds and disabilities, and identifying information about perpetrators and the place(s) of detention may be very useful in corroborating an individual’s allegations of torture. In the clinician’s interpretation of findings, he/she should relate various categories of evidence, i.e., physical and psychological evidence of torture, and historical information as well
