Medical Standards for Determining Torture

The international community has established a set of guidelines to be used in evaluating and documenting possible cases of torture. The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the Istanbul Protocol), was presented to the United Nations in 1999.

The Protocol provides methods to assess persons who allege torture and ill-treatment, investigate cases of alleged torture, and report findings to the judiciary or any other investigative body. The manual includes principles for the effective investigation and documentation of torture, and other cruel, inhuman or degrading treatment or punishment. These principles outline minimum standards for States in order to ensure the effective documentation of torture (Introduction, Istanbul Protocol).

One of the expert witnesses in the Burge cases, Dr. Robert Kirschner, was also a key contributor to development of the Istanbul Protocol. Robert H. Kirschner, M.D. was a clinical associate in the department of pathology and pediatrics and a founding member of the faculty board of the human rights program at the University of Chicago. He was an internationally recognized authority on forensic pathology, human rights violations, police brutality, torture and child abuse and an outspoken opponent of the death penalty. He was also a key contributor to the development of the United Nations manual on the effective investigation and documentation of torture, known as the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) -- the first such standards to be developed for international use. Kirschner was widely recognized for his efforts. He served as chairman of the American Association for the Advancement of Science committee on scientific freedom and responsibility, was a member of the board of directors of Physicians for Human Rights and established its international forensic program. He wrote and taught extensively on the diagnosis of abuse and the collection and presentation of medical evidence in court.

In the following excerpt from testimony in People v. Darryl Cannon (November 1, 1999), Dr. Kirschner applied his knowledge of the international norms of evaluating torture to establish the credibility of one of Burge’s victims.

Examination: …Now did you form any opinions with regard to Andrew Wilson and his allegations of police torture by John Burge?

Dr. Kirschner: I think there was no question that the was tortured; that he was given electric shock; that he was burned; that he also did suffer torture at the hand of John Burge and his associates.

Q: All right. That was your opinion at that time?

A: It is my opinion at that time. It is still my opinion today.

Asked to describe in greater detail how the reactions described by the alleged victims “were consistent with someone…who had suffered electric shock torture.”

A: … One of the things that Andrew Wilson described was the fact that he was shocked; his teeth grind together and his gums began to bleed. There is a description that no one would be able to offer unless that had either undergone such a torture or were experts in the diagnosis of torture. I have never found any, either layperson or even medical students who are aware of that type of finding.

Q: …what was the basis for your conclusion that Marcus Wiggins had been electric shock at Area 3 under Burge?

A: At that time when I met with Marcus and his mother, it was based on my interview of him; and his description of what had happened to him, as well as the discussions with his mother to his marked regression, regression of his behavior. And even as I interviewed Marcus, his tearfulness of his – his difficulty in explaining what had happened; what his obvious fear relating again the events that had occurred. He had no physical residual – physical scars or marks from the electric shock injury that occurred to him. I know that also this was found on psychological examination with Doctor Martinez at the time; again found psychological effects that had upon him.

Q: All right. Was it – is it and was it unusual in cases of electric shock to find the absence of any physical in injury?

A: Not at all; actually unusual to find people with permanent scars and even acutely one may or may not see any evidence of injury relating to electric shock.

Q: All right. Is that also true in cases of dry sub-marino or bagging?

A: Well, bagging you don’t see any; you won’t see any evidence of that after you – immediately afterward; that is why it so popular, because it leaves no physical evidence.