In Louisiana, rape survivors are denied access to their own medical records
27th December 2021 · 0 Comments
By Julie O’Donoghue
Contributing Writer
(lailluminator.com) — Ten years ago, Yvonne Williams agreed to have her body photographed, poked and prodded as part of a forensic medical exam — or rape kit exam — at the Interim LSU hospital in New Orleans.
Williams hoped the exam would lead to the arrest of the man she was confident assaulted her, but it didn’t make the process less painful. She described it as “shameful and humiliating,” in an interview this month.
During the exam, a nurse found tears in Williams’ sex organs. Her uterus had been damaged and an internal wound was bleeding so much that it required cauterization, Williams recalled. When it was over, she left the hospital with a “bag full of STD medication.”
It didn’t occur to Williams to ask for her exam records at the time. Two days later, she got on a plane headed back to her home in California. She had only been in Louisiana on business for a few days.
Louisiana Illuminator typically doesn’t identify victims of sexual assault, but Williams agreed to publicly disclose her name.
The New Orleans police never arrested the person Williams suspects attacked her, or anyone else in connection with her case. But when she asked for a copy of her medical records in 2018, University Medical Center — which took over Interim LSU hospital — denied the request on the basis that law enforcement still needed them.
Williams found the explanation baffling, especially since her case was seven years old and, much to her frustration, hadn’t gone anywhere. The police had not been in contact with her about it in years.
“Any other hospital that I have ever been at, you fill out a form and they give you your medical records,” Williams said. “If you’re going to go through this process, then by God, you should be able to get your freaking records.”
It took three more years and two attorneys before Williams saw her own forensic medical report. She received a copy only after the police opened and closed her case again. Williams’ second lawyer got the report in June after making a public records request to the City of New Orleans.
In Louisiana, survivors of sexual assault are repeatedly denied copies of their forensic medical exams. There’s no standard approach for releasing those documents to patients. Medical providers, under pressure from law enforcement, are reluctant to give them out.
“In some cases, where [survivors] have been given records, DAs and law enforcement are mad because the records were handed over,” Greg Waddell, vice president of the Louisiana Hospital Association, said last month.
State officials want to improve victims’ access to those medical records and make the process for releasing them more uniform. The Louisiana Sexual Assault Oversight Commission has recommended an update to the statewide protocol on forensic medical exams for more transparency, but some advocates for sexual assault survivors don’t think the commission’s proposal goes far enough.
Advocates think more aggressive action should be taken, like a new state law, that would ensure survivors get to see their exam documents. Other crime victims, such as gunshot survivors, are able to access their medical reports without question. Sexual assault victims should be given the same opportunity, they said.
“They’ve been robbed of their control and their autonomy, and when they try to scratch and claw for information to achieve some measure of justice, they are denied that,” said Sean Cassidy, Williams’ lawyer and an attorney with Louisiana Foundation Against Sexual Assault.
“It is re-traumatizing,” he said.
Is it evidence or medical treatment?
Louisiana hospitals and other medical providers have no consistent policy for handling victims’ requests for their own forensic medical exams, according to a survey by the state sexual assault oversight commission coordinated by Attorney General Jeff Landry’s office.
Where a person goes for treatment after sexual violence could determine whether they can ever get access to their own medical file.
CHRISTUS St. Frances Cabrini Hospital in Alexandria never allows people access to their forensic medical records, wrote Kim Thomas, the sexual assault nurse examiner coordinator for the hospital, in response to the commission’s survey.
Sexual assault survivors in Caddo and Bossier parishes can only get their records from law enforcement directly. Otherwise, they aren’t released, said Olivia Jones, a sexual assault nurse examiner who works for the Forensic Nurse Examiners of Louisiana Inc., a nonprofit which serves Northwest Louisiana.
University Medical Center — which provides sexual assault forensic medical exams for victims in New Orleans and several surrounding parishes — will only release records if a survivor hires an attorney and the hospital is served a subpoena for evidence, wrote Heidi Martin, the sexual assault nurse examiner for the hospital, in response to the survey.
The New Orleans Family Justice Center is an outlier because it does give survivors a copy of their forensic medical exam if requested, according to the survey, but the staff still asks patients to explain how the records will be used.
“If they are just asking for [their medical records] without any concrete plans for them, I will discourage this,” wrote Andrew Mahoney, the coordinator for the center’s sexual assault exams, in response to the commission’s survey. “However, if they insist, I will give them.”
“One patient insisted on having them, and she ended up inadvertently giving them to her assailant’s attorney,” Mahoney wrote.
Louisiana’s sexual assault oversight commission is an 18-member state board that includes advocates for sexual assault survivors, medical professionals, one state lawmaker and prosecutors. It reviews state policy around forensic medical exams, and makes recommendations to the Louisiana Legislature about law changes.
The commission recommended the release of forensic medical exam reports to adult survivors who don’t report their attacks to law enforcement in a letter to state lawmakers this month. The board said this could be done by adjusting the statewide forensic medical exam protocol. It would not require a new state law.
But the commission also recommended forensic medical records attached to ongoing criminal cases be handled differently. It suggested records should be kept from victims when there are “substantial and overriding evidentiary reasons for withholding the reports as determined by District Attorneys.”
Advocates said giving this deference to the district attorneys could mean that little will change about survivors’ poor access to their medical reports. Without a new law, there would also be little recourse for a survivor who is denied their records.
Prosecutors could still try to block the sharing of medical reports with patients who don’t report to law enforcement on the condition that the patients might report at some point in the future. In the case of sex crimes, victims have decades to go to law enforcement with their allegations. The statute of limitations on prosecution doesn’t run out for years.
Prosecutors don’t consider the forensic medical exams comparable to other hospital reports, said Loren Lampert, executive director of the Louisiana District Attorneys Association. Nurses address injuries and prescribe medication to sexual assault victims as part of the process, but prosecutors perceive the exam’s main purpose to collect evidence, not medical treatment.
“It is a forensic examination, which means it is being done in preparation for court,” Lampert said.
District attorneys use medical reports to corroborate the victim’s testimony of an assault at trial. If a victim has seen their records before providing testimony in court, a judge might suspect that the victim crafted their story to match the information in the records, Lampert said. That could weaken a prosecutor’s case against a sexual predator, he said.
“We want to make sure everybody’s testimony is their own,” Lampert said. “We don’t want to give defense attorneys space to pick things apart.”
Even law enforcement agencies have to jump through hoops to get forensic medical reports, according to the New Orleans Police Department.
“Sexual Assault Medical Reports created by hospitals are deemed evidence and are not available for release without a judge-approved search warrant, this includes any inquiries from law enforcement,” said Gary Scheets, New Orleans police spokesman, in a written statement.
Medical professionals on the sexual assault oversight commission also suggested that victims might be too fragile to see their own records.
Randall Brown, a doctor at Woman’s Hospital in Baton Rouge, said victims could react badly to information in a report about whether they appeared drugged or intoxicated. He worried that patients might start to blame themselves for their own attack if they saw that they were described as being inebriated in the exam notes.
Martin, the sexual assault exam coordinator at University Medical Center, said she would be more comfortable handing over exam records to survivors if a medical professional was present to explain the content of the report. Then, the record would be less likely to upset the patient.
But other commission members worried that providing medical staff assistance would make the release of the records cost prohibitive. It would take more resources for hospitals and clinics to make a nurse available every time a survivor wanted to see their record, they said.
A few members of the commission also departed from the consensus of the board about seeking permission from law enforcement before the release of the records.
One pushed back on the notion that releasing medical records could weaken criminal prosecutions. Victims have access to such records in other states, said Morgan Lamandre, an attorney with the Sexual Trauma Awareness and Response organization, which provides services for sexual assault survivors.
State Sen. Beth Mizell, R-Franklinton, questioned whether victims wouldn’t be able to stomach information contained in the records. They have already survived the attacks and exams. It seems odd that reviewing a medical report would be deemed too traumatizing, she said.
“Over and over, I hear that these victims can’t handle what they’ve already lived through,” Mizell said. “That just doesn’t make a whole lot of sense to me.”
In Williams’ case, she began to seek a copy of her forensic medical exam because she thought it would help her start a “healing journey.” She found it traumatizing to look at her medical report — when she finally saw it earlier this year — but she also found it traumatizing to have the medical report kept from her.
“If I would have had [the medical report] earlier, I would have known the truth,” Williams said. “Instead, I was in the dark the entire 10 years.”
Did that really happen to me?
On Oct. 26, 2011, Williams woke up in a Hotel Monteleone room that wasn’t her own. She said she had a black eye, blood on her face and a broken nose. Her lower abdomen and sex organs hurt so much that she had trouble sitting down without pain.
“I can’t even walk,” Williams recalled in an interview this week. “I felt like I had just given birth.”
The hotel room she was in belonged to a man who was attending the same military conference she was in New Orleans, she said. As she put together where she was, she felt certain he was responsible for her injuries.
Williams couldn’t recall much of the night before, but one of her last memories was of the same man holding her drink for her while she went to the bathroom in a bar. Later, when she finished the drink, the room started to warp around her. Then, she blacked out.
Williams had only just met the man. He was one of a small group of conference goers that convinced her to go out to dinner with them. They expressed an interest in doing business with her gluten-free food company. After the dinner, the group went to a bar together, she said.
The morning after that trip to the bar, Williams painfully hobbled back to her hotel room, she said. She had no recollection of how she had gotten back to the Monteleone, let alone into the man’s room, the previous night. In her own room the morning after, she called another colleague attending the conference for help. When he came by and saw her beaten face, the colleague insisted on calling 911, she said.
Williams, then in her mid-40s, eventually ended up at Interim LSU where a nurse trained to treat victims of sexual assault conducted her exam. The process included not just the medical treatment for Williams’ injuries, but drug tests and the collection of fluids and other material that might help build a successful case for a sex crime.
Years later, Williams decided to ask for those medical records at the suggestion of her therapist. News reports of the sexual assault allegations against morning show host Matt Lauer — which were breaking in 2018 — had brought the attack in New Orleans to the forefront of her mind again.
Williams’ lawyer, Cassidy, said some of his clients seek out their medical records in order to confirm what happened to them. As an attorney for the Louisiana Foundation Against Sexual Assault, he’s consulted with hundreds of survivors. Those who go through a forensic medical exam can have a hard time recalling what the nurse told them during the process, which is why they sometimes want a copy of their medical records after the fact.
“They could have been hit in the head, drugged — or just the sexual trauma will mess with your memory,” Cassidy said.
In Williams’ case, she was confident that she recalled her injuries accurately, but she wanted a copy of her medical records to challenge law enforcement’s handling of her case. Williams has lodged complaints with federal and local authorities about the New Orleans police’s investigation into her attack, which she describes as feckless.
“If you have your medical records, you can hold them accountable,” she said.
What if you don’t report to the police?
Forensic medical records have other practical uses for victims who aren’t interested in a criminal case.
Even if they don’t report their assault to law enforcement, victims can use the documents to obtain civil restraining orders against the people who attack them. Medical reports can also strengthen a victim’s Title IX sexual misconduct complaint at a college or university, Lamandre said.
University Medical Center — which performs more forensic medical exams on sexual assault survivors than most other facilities in the state — has released records just three times to survivors in the last three years, said Brandy Sheely, an attorney for the hospital.
The hospital released them to two victims who were seeking “stay away orders,” and a third bringing a Title IX complaint, Sheely told the sexual assault oversight commission this month. The hospital required all the survivors to sign a waiver stating that the hospital was no longer responsible for the reports.
But even when a hospital is willing to turn over the written forensic medical report, survivors may be unable to get the photos taken of their bodies during the exam. University Medical Center would only release exam photos if the hospital was required to do so by a court order, Sheely said at the commission meeting earlier this month.
Those photos are often graphic, taken of naked bodies and genitals, and if victims were able to receive those images, they could fall into the wrong hands, she said. In a hypothetical situation posed to the commission this month, Sheely worried someone might leave those photos in their car and then the car would get stolen and the photos would be shared with people who weren’t meant to see them.
In 2011, Williams recalls photos being taken of her during her own forensic medical exam. She said she signed a waiver at the hospital to have pictures taken of her, but she’s never seen them. The photos weren’t attached to the copy of the medical report released to her.
Victims may not get their medical records, but others do
Sexual assault survivors face barriers getting copies of their forensic medical exams, though that doesn’t mean the hospital doesn’t share those same documents with others.
As part of criminal proceedings, detectives and prosecutors may see the medical reports. Defense attorneys — representing the people accused of the assaults — may also look at copies.
The medical providers also routinely share exam records with Louisiana’s Crime Victims Reparations Board, said Bob Wertz, a staff member to the reparations board. Both the 11-member board and its employees have access to individual medical reports, he said.
Hospitals and medical providers send over the forensic medical records when they are seeking reimbursement from the state for performing the exams. In Louisiana, medical providers are prohibited from charging a sexual assault victim for their exam. Instead, they are supposed to seek funding from the state’s crime victims reparations fund to cover those expenses.
If a hospital feels comfortable enough letting strangers on a state board review those medical documents, victims should also be able to look at them, Lamandre said.
“I don’t see how we get to decide who gets to see their own records,” she said.
Williams wants to push for a change to Louisiana law that would guarantee people like her could access their own medical report after a sexual assault exam. She believes that victims should be able to leave the hospital with a copy of those records, as well as their police report. She also wants every sexual assault survivor to receive information about how criminal and civil prosecution for sex crimes works and what the statute of limitations on each is. She said if she had been given access to that type of information immediately, her case may have had a different outcome.
“Right now, the survivor is not empowered at all — not even to take control of her or his own healing process,” she said.
Louisiana Illuminator (www.lailluminator.com) is an independent, nonprofit, nonpartisan news organization.
This article originally published in the December 27, 2021 print edition of The Louisiana Weekly newspaper.
