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Home / Articles / Legal / When You Can't Collect Evidence

When You Can't Collect Evidence

Court cases against abusers are bolstered by evidence from survivors—but what if it’s not safe for you to collect any?

When You Can't Collect Evidence

Ask any survivor, advocate or attorney: Finding justice for domestic violence survivors is an uphill battle. Unlike other crimes, it’s not enough to simply call the police on an abuser in order to put them away. Survivors are required to gather and present their own evidence of abuse, and survivors of nonphysical abuse—verbal, psychological, financial or reproductive—face the conundrum of trying to prove something that doesn’t leave behind an emergency room record. 

If possible, collecting evidence can bolster a survivor’s case in court—whether it’s to obtain a permanent order of protection or secure custody of the kids. In “Collecting Evidence of Abuse Without Danger,” we review some ways in which a survivor can assemble evidence without arousing suspicion from an abuser. 

But even those tactics aren’t 100% risk-free. Survivors may be monitored 24/7 by an abuser. Their phones, computers, iPads, even cars, may have spyware and tracking devices on them, preventing a survivor from so much as doing a simple Google search without the abuser being aware.

In a recent survey of our readers, nearly 50 percent of the 420 people who responded said they were not able to collect evidence of the domestic violence they endured, or they were afraid it would put them in more danger if they did. Another 15 percent said they did collect evidence, but their abusive partner found out and destroyed it.

In cases like this, what’s Plan B?

Get Out Regardless

You can’t collect evidence. Not a shred. If you do, you fear your safety will be in danger. Should you stay with the abuser until you can?

No, says Giugi Carminati, JD, attorney, activist and author of the blog Argue Like a Girl. “The most important thing for a victim to do is to get out of the relationship, to safety. Evidence collection can happen later.”

You don’t need hard evidence to file for an emergency protection order, which usually lasts for three to seven days—long enough to keep the abuser away from you while you find a safe place to relocate, at least temporarily. It may also allow you enough time to secure an attorney (one with experience in domestic violence cases) who can help you secure a permanent order of protection or file for divorce. If this all sounds overwhelming, reach out to your local domestic violence shelter for help with safety planning (coming up with a way to leave safely) and with all the legal stuff. Shelters will often have experts on call to help answer your legal questions and help you secure an order of protection. 

Post-Abuse Evidence

To help protect yourself and your children with a permanent order of protection against the abuser, you’re going to need to build a case. But now that you’re hopefully in a safe place, like a shelter or a friend’s house that the abuser doesn’t know the location of, think of these ways to get evidence after the fact:

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  • Don’t Discount Your Testimony. Your account of the events should be valid as evidence in court. Don’t let anyone discourage you by telling you it’s only going to be a case of he-said-she-said. If possible, find an attorney experienced in domestic violence cases and make sure you request to add your testimony to the evidence. 
  • Doc Disclosure. Find a therapist or physician with whom you feel comfortable making a disclosure to, advises Carminati. Perhaps it’s someone who saw you during the abuse and can attest to your medical history. Even if it’s not, this professional should be able to at least submit a letter of testimony to a court verifying your disclosure, which can be a valuable piece of evidence. Remember: the more details you feel comfortable sharing with this person, the better. Can you remember any dates, times, specific circumstances surrounding abusive episodes? What after-effects (physical or mental) occurred as a result? Are you in fear for your safety or your children’s safety at the current time? 
  • Build a Timeline. Next, says Carminati, consider going to your local domestic violence nonprofit and meet with an advocate who can help you start to piece together a timeline of the abuse. Again, the more details you have, the more likely a judge will be to understand the severity of the abuse you endured. If it’s hard to remember, because our brains can sometimes block out or fragment memories of trauma, try asking friends and relatives what they remember. Think back to holidays, birthdays, anniversaries—did these dates set off the abuser? Is the abuser still threatening you today, either in person or through text messages or social media?
  • Find Witnesses. “Having people being willing to take the stand on behalf of a victim is important, says Carminati. But remember, having them testify that they believe you were abused is not the same as having them testify that they saw you being abused. Did they witness the abuser threatening you, physically harming you, controlling you or abusing the children or pets? Also ask yourself, would having them testify impact your relationship with that person—are they OK with being put in the middle? These are important things to consider. 

For more tips on going to court without evidence, especially in the case of nonphysical abuse, read, “How to Prove Nonphysical Abuse in Court.