Written by Ward Allen, Diana
Faugno, Valerie Sievers, and Brijida Rodarte
IT IS A DIFFICULT PART OF THE PROCESS of serving an abused child: documenting the evidence of abuse to
ensure justice for the victim. That’s why the National Children’s Alliance’s
(NCA) latest edition of its Standards for
Accredited Members mandates that
to achieve this high level of practice in serving children, Children’s Advocacy
Centers (CACs) must collect “diagnostic-quality photographic documentation” of
exam findings, and protect, store, and release these images in a secure,
Here are a few common
questions and their answers informed by our years of working with CACs to
implement our photo documentation systems.
How can I ensure my images are “diagnostic-quality”?How can you meet this
all-important definition, take diagnostic-quality photos, and select a
photo-documentation system that empowers a CAC to build a solid body of evidence
and achieve justice for kids? We have developed some tips for CACs on how to
ensure their evidentiary imaging is up to the Standards—and stands up in court.
1. Know how to tell a good photo
from a bad photoFirst,
make sure the image shown is at 100% (1 screen pixel to 1 image pixel, also
shown as “original size”) and not scaled down to your screen’s resolution on
your secure evidence computer. This is the only way to evaluate the quality of
the image. (Most basic Windows computers offer a photo-viewing program, a free
tool that allows you to view your image at 100% size.) Now, look at the photo
and ask yourself these questions:
If the answer is “Yes”
to all of these, then your images are diagnostic-quality and the photo
documentation system is capable of delivering the image quality you need. If
not, it may be time to examine your practices or find a new photo-documentation
2. Determine whether your
existing or prospective system is easy to useMedical
personnel are obviously patient-centered, so it is important that you can
easily pick up a photo-documentation system and capture diagnostic-quality pictures,
quickly and effectively. It needs to be compact, portable, and easy to operate.
3. Think about a situation when you
bring a JPEG to courtWhat
will happen if the defense team questions the photo’s validity? Think of any way
the defense team might challenge your images and get them thrown out of court. Proving
in court that a JPEG has not been manipulated requires a review of the Federal Rules of Evidence, Article X, Contents of Writings, Recordings, and
Photographs Rule 1003, Admissibility of Duplicates. It states, “A duplicate is
admissible to the same extent as the original unless a genuine question is
raised about the original’s authenticity or the circumstances make it unfair to
admit the duplicate.”
4. Ensure your CAC has saved a
RAW file for each JPEG capturedIf the
defense attorney or their expert witness mathematically proves that your JPEG
is not original—and they can—the court may determine it unfair to admit the
duplicate JPEG image. Smart defense attorneys know this and may use this
argument to have evidence ruled out. So, be sure you are ready with that RAW
Some may wonder what the
differences are between a RAW file, a JPEG file, and their role in forensic
photo-documentation. Simply, a RAW file is a digital negative: a data-file
format, not an image-file format. RAW data cannot be manipulated in any way,
shape, or form because it is technically not an image. RAW files also hold metadata.
Metadata passed along to the JPEG image-file format includes date, time, and
camera-setting details. Digital cameras create JPEGs from RAW data inside
digital cameras. JPEG files can be easily changed and manipulated via image-management
software, whereas RAW files cannot. In order for you to create a RAW file, you
should use a DSLR high-resolution camera. See this link for more information.
Who pays for the photos and video captured during a forensic
medical exam?If your state
accepts STOP Grant Funds—and every state in the U.S. does—then “the state or territory
or another governmental entity incurs the full out-of-pocket cost of forensic medical exams for victims of sexual
Note: The target of the STOP Program is adult
and youth victims. “A person who is 11 to 24 years old” defines a youth.
Title 34 U.S.C. 10449 reads as follows: “A State, Indian tribal
government, or unit of local government shall not be entitled to funds under
this subchapter 1 unless the State, Indian tribal government, unit of local
government, or another governmental entity…
Incurs the full
out-of-pocket cost of forensic medical exams…
Note: Title 34 U.S.C. 10449, Sub-section (A), above, is not limited by a
person’s age. That means that under Title 34 U.S.C. 10449, all living victims
of sexual assault are covered.
The Department of Justice, under 28 CFR, Part 90 – Violence Against Woman,
Subpart A – General Provisions, Section 90.2 – Definitions, is clear on this
subject and states the following:
1) In addition to
the definitions in this section, the definitions in 42 U.S.C. 13925(a) apply to
all grants awarded by the Office on Violence Against Women and all subgrants
made under such awards.
2) The term
‘‘forensic medical examination’’ means an examination provided to a victim of
sexual assault by medical personnel to gather evidence of a sexual assault in a
manner suitable for use in a court of law.
In short, charging or billing a patient for a forensic medical exam
could lead to the loss of DOJ federal funding for your entire state.
The updated October
2017 “FAQs About STOP Formula Grants” published by the United States
Department of Justice, Office on Violence Against Women, repeats the definition
and the specific purpose of a forensic medical examination.
To see how to be reimbursed for
forensic exams, click this link and scroll
to your state.
Are the photos and video captured during a forensic
exam considered forensic evidence or part of the medical record?If photography and
video capture is part of the forensic exam, then the state pays for it and the photos and
video are forensic evidence and part of the forensic record. If your
organization—through a state law, a policy, or a protocol—normally captures
ano-genital photographs/videos of children as part of your everyday medical practice
and your organization charges that patient, their health-care insurance and/or your
organization processes the cost of capturing those photographs/videos through a
“health-care clearinghouse”, then the photos and related video are medical.
How long do we need to keep our photos?If the photos you captured during
the forensic exam were paid for by the state, then State Criminal Statutes of Limitations
apply. See State Criminal Statutes of Limitations in Sexual Abuse Crimes. Any case could go federal. If it does, then photos should be
made available “any time without limitation”.
If medical photos were captured
during a forensic exam, as described above see State Medical Record Laws.
Either way, photos and video
captured during an exam must have a secure, sustainable, and backed-up storage
system to protect the photos and videos.
How can we securely store our photos?Do not store forensic
evidence in a medical record. Medical Break Glass Policy is not compatible with
a Legal Chain of Custody. See the seven-minute video on this specific subject.
Hacking is indeed a big
concern with all the data out there, and rightfully so. In May 2017, it was globally
reported that 150 countries had been hacked. Here in the U.S., the U.S.
Department of Health and Human Services Breach Portal reported over 4.5 million
medical-record breaches in 2017. Between January 1, 2018 and April 25, 2018,
there were over 1.7 million breaches. Both reports only include breaches
affecting 500 or more individuals. Also refer to the Ponemon Institute's Sixth
Annual Benchmark Study on Privacy & Security of Healthcare Data. They report health-care related breaches
constituted $6.2 billion in losses. According to identity fraud experts, more than 140
million individuals in the United States—roughly 50% of the population—have had
their health-care records lost, breached, or stolen. In 2015, IBM noted that
health care had the highest rate of data breaches compared to any other
The safest and easiest
way for you to protect your forensic evidence, including pictures and video—paid
for and belonging to the state—is to sequester your forensic photos and video away
from medical records. Ensure that nested, end-to-end encryption is used, such
as the 256-Bit Advanced Encryption Standard, when you store and release photos.
Beware of the CloudStore encrypted storage volumes
on your own network and on your own network computer—not in the cloud or on a
desktop computer. Neither are a safe place.
Cloud storage, like real clouds, drifts and moves like the wind. Like real clouds
in the sky, computer clouds can dissipate or merge with other clouds that are
located in other countries who do not have the same data protection laws we do.
Using cloud computing means that you do not have control of your data. More
important, if you miss a cloud-storage payment, you may lose all of your data.
When you use cloud
services, like most cellphone and tablet apps do, the service and the app
usually requires your authorization to collect data, including personal data,
usage data, patient data, and your photographs. Do not do it!
Always read your user agreements!Make sure you know what you
are getting into by storing your data with these services. Many cloud services
and apps that utilize secure mobile colposcopes, iPads, iPhones, Android, or secure
storage on major data providers, require user agreement terms that are
untenable for CACs.
Before you sign up for a
service, take the time to read the language and determine whether you are
really willing or able to abide by the terms offered. Below are samples of text
from real consent agreements for “secure” cellphone based colposcopes—with
language that may make it impossible to keep your data secure, sequestered, and
accessible. Some examples include:
“YOU AGREE TO THE TERMS
COLLECTION AND PROCESSING, MONITORING, STORING AND SHARING OF THE INFORMATION […]”
“Each Session may
include the Clinician's name, the patient's ID (actual or made-up), the
clinical image, image date, Clinician's diagnosis, general geo-location of
Clinician's mobile device […]”
“[…] may transfer and
disclose Non-personal Information to third parties at its sole discretion and
“[…] we cannot guarantee
that unauthorized access or use will never occur […]”
“Cancelling your Account
may cause inability to access your Account and/or the loss of certain
information (including, without limitation, the Sessions and/or clinical images
or any Personal Information).”
“We may transfer
information collected about you, including Personal Information, to affiliated
entities, or to other third party service provides[…]across borders.[…]you
consent to such transfer of information.”
Take the steps to ensure
that your patients are not charged for forensic-medical exams and use the
information here along with the references linked in this article to protect
the forensic evidence that is gathered on behalf of your patients.
About the AuthorsWard Allen’s full technical experience spans almost four decades
in both Canada and the United States. It includes the utilization of both
analog and digital photography systems; various computer network communications
systems directly related to the development, introduction, use, and management
of digital photographs; and ongoing development of digital forensic imaging
solutions for CAC, SANE, SART, and SAFE programs.
Diana K. Faugno (MSN, RN, CPN, SANE-A, SANE-P, FAAFS,
DF-IAFN, DF-AFN) is a Founding Board Director for End Violence Against Women
International (EVAWI), is the current president of the Academy of Forensic
Nurses, as well as a retired-fellow in the American Academy of Forensic Science
and a Distinguished Fellow in the Academy of Forensic Nursing. She now works
for Life Safe as a forensic nurse in Marietta, Georgia.
Valerie Sievers (MSN, RN, CNS, SANE-A, SANE-P, DF-AFN)
is a Forensic Clinical Nurse Specialist with more than 35 years of health care
experience as a registered nurse, advanced-practice nurse, educator, and
consultant. She is currently owner of MedLaw Consultants, LLC, editor of
Forensic Nursing Exchange, and serves as a board member of the Academy of
Brijida Rodarte is the Deputy District Attorney for Riverside, California and a member of the Sexual Assault & Child Abuse Team.