Never Court Disaster: Navigating The Legal System For Victims Witnesses With Disabilities

1. Never Court Disaster: Navigating The Legal System For Victims & Witnesses With Disabilities Robert D. Laurino Chief Assistant Prosecutor Essex County Prosecutor’s Office Newark, NJ robert.laurino@njecpo.org

2. Victims & Witnesses With Disabilities:  Taking A Closer Look

3. Statistics Children & adults with disabilities experience abuse and violence at least 2X as often as non-disabled peers Study of psychiatric inpatients found 81% were sexually/physically assaulted & individuals with mental illness were 24X more likely to be raped Sobsey & Doe, 1991. Jacobson & Richardson, American Journal of Psychiatry, 1988 Sobsey & Doe, 1991. Jacobson & Richardson, American Journal of Psychiatry, 1988

4. Statistics (Cont.) Those individuals with developmental disabilities are up to 3x more likely to be subjected to sexual abuse >97% of those individuals who abuse persons with developmental disabilities are know to their victims 3% of the abuse cases involving victims with developmental disabilities will ever be reported Canadian researcher found >90% within an institutional setting 2. 3. Valenti-Hein & Schwartz, 1995 Canadian researcher found >90% within an institutional setting 2. 3. Valenti-Hein & Schwartz, 1995

5. Vulnerability - Least Able To: Recognize danger React to danger to protect self Obtain assistance 1. Sensory/cognitive impairment 2. Physical impairment; impaired judgment 3. Dependency on others (e.g., personal needs, economic needs, etc.) - lifeline1. Sensory/cognitive impairment 2. Physical impairment; impaired judgment 3. Dependency on others (e.g., personal needs, economic needs, etc.) - lifeline

6. Are We Too Quick To Judge? Lack of eye contact Memory deficits Language deficits Responding to stimuli Evasive Inattentive Withholding info Uncooperative Remember that people with cognitive disabilities may be very good at masking their disability - don’t want to be stigmatized Remember that people with cognitive disabilities may be very good at masking their disability - don’t want to be stigmatized

7. Understanding Victims & Witnesses With Developmental Disabilities

8. What Is A Developmental Or Intellectual Disability? Severe mental and/or physical impairment Affecting major life activities Language Mobility Learning Receptive & expressive language Self-care Independent living Economic self-sufficiency IT DEPENDS ON WHO YOU ASK!IT DEPENDS ON WHO YOU ASK!

9. What Is A Developmental Or Intellectual Disability (Cont.)? Manifest before age 22 Likely to continue indefinitely

10. What Classifies As A Developmental Or Intellectual Disability? Mental Retardation Autism Cerebral Palsy But it could also include: Epilepsy Spina Bifida Down Syndrome Fragile X Syndrome Fetal Alcohol Spectrum Disorder Hearing Loss Vision Impairment IT DEPENDS ON WHO YOU ASK! 1. 2. 3. Neuro-muscular disorder, but 33% cognitively impaired 4.a. b. c. Genetic & chromosomal disorders (extra chromosome) d. Genetic & chromosomal disorders (expansion of sequence on gene – CGG repeat) e. f. Physical - Centers for Disease Control & Prevention g. Physical - Centers for Disease Control & Prevention IT DEPENDS ON WHO YOU ASK! 1. 2. 3. Neuro-muscular disorder, but 33% cognitively impaired 4.a. b. c. Genetic & chromosomal disorders (extra chromosome) d. Genetic & chromosomal disorders (expansion of sequence on gene – CGG repeat) e. f. Physical - Centers for Disease Control & Prevention g. Physical - Centers for Disease Control & Prevention

11. Mental Retardation Significant impairment of intellectual functioning Significant limitation in adaptive functioning Onset before age 18 Wechsler Adult Intelligence Scales (WAIS); Wechsler Intelligence Scales for Children (WISC); Stanford-Binet Vineland Adaptive Behavior Scales >age 18 is dementiaWechsler Adult Intelligence Scales (WAIS); Wechsler Intelligence Scales for Children (WISC); Stanford-Binet Vineland Adaptive Behavior Scales >age 18 is dementia

12. Degrees Of Mental Retardation Mild: IQ of 50-55 to 70 Moderate: IQ of 35-40 to 50-55 Severe: IQ of 20-25 to 35-40 Profound: IQ of <20-25 + or – 5 points + or – 5 points

13. Prevalence Of Mental Retardation Mild: 85% Moderate: 10% Severe: 3-4% Profound: 1-2%

14. The Bell Curve Of IQ 2 standard deviations below the mean2 standard deviations below the mean

15. DSM-IV-TR On Vulnerability “Individuals with mental retardation may be vulnerable to exploitation by others (e.g., being physically and sexually abused) or being denied rights and opportunities.” DSM-IV-TR at 44-45.

16. Reasons For Vulnerability Lack understanding of what constitutes abuse Overly compliant View everyone as friend Limited social opportunities Low self-esteem Lack of assertiveness 1. 2. Haven’t developed skills for independent judgment 3. Trusting 4. Little opportunity to develop real friendship/intimacy 5. No sense of power over own lives – others run lives 6. Inability to say NO1. 2. Haven’t developed skills for independent judgment 3. Trusting 4. Little opportunity to develop real friendship/intimacy 5. No sense of power over own lives – others run lives 6. Inability to say NO

17. So What Do I Say?:Using People First Language

18. Recognizing The Person, Not The Disability DON’T SAY: “Retarded 17 year old” “A developmentally disabled person” DO SAY: “A 17 year old with mental retardation” “A person with a developmental disability” Celebrating the person, not emphasizing the disability Celebrating the person, not emphasizing the disability

19. Addressing Unique Legal Issues

20. Who Can Speak For The Victim?Consent: Legal Vs. Medical Issues Consent to the act Understanding the nature & consequences of the act Consent to treatment Parents Legal guardian Self-advocate Public/private residential facility staff Court order DISPARITY BETWEEN LAW & MEDICINE LANGUAGE WE USE ISSUE OF CONSENT BOTH LOOK TO WHETHER THERE IS AN INFORMED CONSENT 1. 2. a. b. c. d. e. Statutory/regulatory authority for administrator of developmental center/licensed group home, pre-signed consent forms 3.DISPARITY BETWEEN LAW & MEDICINE LANGUAGE WE USE ISSUE OF CONSENT BOTH LOOK TO WHETHER THERE IS AN INFORMED CONSENT 1. 2. a. b. c. d. e. Statutory/regulatory authority for administrator of developmental center/licensed group home, pre-signed consent forms 3.

21. Explore Statutory Protections Statutory offenses Bias/hate crime legislation 1. Consent is irrelevant 2. Enhanced penalties1. Consent is irrelevant 2. Enhanced penalties

22. Rape Sword Or Rape Shield? Enacted to prevent admission of a victim’s prior sexual history at trial Introduction of past sexual history through expert witness Show victim does not meet a mental impairment criteria by using past sexual history to demonstrate: Victim’s understanding of the distinctive sexual nature of the act Victim’s ability to consent

23. Preparing For Court APPLIES TO ADVOCATES/LAW ENFORCEMENT/SANES/HUMAN SERVICE WORKERS APPLIES TO ADVOCATES/LAW ENFORCEMENT/SANES/HUMAN SERVICE WORKERS

24. Learn As Much As Possible About The Victim Caretakers Counselors Educators Friends/neighbors Employers Be aware that caretaker can be abuser. Education records IEP (Individualized Education Plan) 4. 5. >>>>>Consumer to consumer abuse<<<<<Be aware that caretaker can be abuser. Education records IEP (Individualized Education Plan) 4. 5. >>>>>Consumer to consumer abuse<<<<<

25. Maintain A Welcoming Environment Accessible location Ensure privacy Consider using a child advocacy center

26. Create Lines Of Communication Limit distractions Adjust language to level of individual Be concrete, not abstract Communication impaired Recollection not impaired 1. 2. Use simple, direct language. Question victim’s definition of terms like “rape.” >Leslie: big fish1. 2. Use simple, direct language. Question victim’s definition of terms like “rape.” >Leslie: big fish

27. Use Aids To Communication Drawings Dolls Easier to demonstrate than to verbalize

28. The Issue Of Competency FRE 601 - “Every person is competent to be a witness…” Witness should be able to: be understood understand duty to tell the truth Rule of inclusion Disqualification of a witness is the exception

29. Assess Competency Meeting the legal basis Truth vs. Lie Punishment if lie

30. Assess Competency (Cont.) Use alternative means to distinguish truth from lie Colors Clothing Weather Faith-based beliefs

31. Utilize Truth Seeking Questions Use non-leading, open-ended questions Be aware of the false positive “yes” response Desire to please questioner Desire not to look foolish Allow victim to explain answer Be non-judgmental 1. Creates problems on cross-examination. 2. Don’t accept “yes” at face value. Paris story 3. 4.1. Creates problems on cross-examination. 2. Don’t accept “yes” at face value. Paris story 3. 4.

32. Memorialize InformationProvided Allocate sufficient time Obtain statement Video >1 interview necessary Consider using child advocacy center.Consider using child advocacy center.

33. Familiarize Victim With Legal Process Take victim to empty grand jury room Have victim sit in on a trial “Practice” in an empty court room

34. Lend Encouragement To Mitigate Fears Develop a safety plan to address general safety concerns Utilize legal protections Restraining orders Orders of protection No contact orders Child-like fears (Philip) 1. Removed from offender? Abuser may be caretaker 2. Build a relationship of trust Child-like fears (Philip) 1. Removed from offender? Abuser may be caretaker 2. Build a relationship of trust

35. Advocating In Court For Victims & Witnesses With Developmental Disabilities APPLIES TO ADVOCATES/LAW ENFORCEMENT/SANES/HUMAN SERVICE WORKERS APPLIES TO ADVOCATES/LAW ENFORCEMENT/SANES/HUMAN SERVICE WORKERS

36. Make Accommodations For The Disability Legal system often overwhelming to the developmentally disabled Fundamental right of access to the courts by the disabled [Tennessee v. Lane, 541 U.S. 509, 533-34 (2004)] Be accommodating in a non-accommodating system Mystique/psychology of the courtroom; physically limiting. Title II of Americans w/ Disabilities Act – prohibits exclusion of disabled from services of public entity 3. Utilize court administrative offices. Mystique/psychology of the courtroom; physically limiting. Title II of Americans w/ Disabilities Act – prohibits exclusion of disabled from services of public entity 3. Utilize court administrative offices.

37. Demonstrate Competency General presumption of competency Not incompetent to testify merely because individual is developmentally disabled, has a mental illness or communication impairment

38. Demonstrate Competency (Cont.) “Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial.” Atkins v. Virginia, 536 U.S. 304, 318 (2002)

39. Demonstrate Competency (Cont.) Show the individual’s ability to distinguish between correct/truthful and incorrect/false responses Have Prosecutor assist Court in conducting voir dire of witness

40. Limit Distractions Individual may have multiple disabilities, including attention deficit disorder, that hinder maintaining focus Limit courtroom movement Limit courtroom noise 1. Dual diagnosis: MR & mental illness. 2. 3. Open windows, noisy fans, rustling papers, cell phones, pagers, etc.1. Dual diagnosis: MR & mental illness. 2. 3. Open windows, noisy fans, rustling papers, cell phones, pagers, etc.

41. Prevent Intimidation Adjust physical layout of courtroom Give witness appropriate “space” while on witness stand Moderate tone of voice Prevent bullying of witness. Prevent bullying of witness.

42. Foster A Sense Of Security Individual’s concerns for personal safety Defendant’s right of confrontation Closed circuit video Appropriate use of court personnel Limit out-of-court contact between the parties Childlike fears. Though like children, unable to use closed circuit due to chronological age. No contact orders, use waiting room for witness ( if available), etc. CA Evid. Code § 352.1 - exclude from evidence victim’s address & telephone # in specified sexual offense cases Childlike fears. Though like children, unable to use closed circuit due to chronological age. No contact orders, use waiting room for witness ( if available), etc. CA Evid. Code § 352.1 - exclude from evidence victim’s address & telephone # in specified sexual offense cases

43. Maintain An Unhurried Atmosphere Don’t expect rapid question & answer Be aware of witness fatigue Unfocused Request breaks as appropriate Rest Personal comfort Nourishment Medication 1. Time management: limit time waiting to testify. 1. Time management: limit time waiting to testify.

44. Use Appropriate Language To Assure Comprehension Speak on the level of, but not down to, the witness Be concrete, not abstract Use simple, not compound, questions

45. Be Aware Of The Need To Facilitate Communication Witness with a disability may have a communication impairment Vocabulary limitations to express thought Speech deficit/defect Allow for intelligible communication Communication boards Voice enhancement Interpreter services 1. 2. Augmentative & Alternative Communication – communication boards, interpreters, voice enhancement, etc. 1. 2. Augmentative & Alternative Communication – communication boards, interpreters, voice enhancement, etc.

46. Be Aware Of The Need To Facilitate Communication (Cont.) Need for demonstrative evidence Anatomical dolls Anatomical drawings Demonstrations Replica evidence >>>>>Grease story<<<<< >>>>>Ha, Ha/Grease Stories<<<<< >>>>>Grease story<<<<< >>>>>Ha, Ha/Grease Stories<<<<<

47. Be Aware Of The Need For A Support Person Victim may seek comfort/support in person known to victim

48. The Conundrum Of Leading Questions Necessary to focus witness Danger of false positive response Need to distinguish State’s form of questioning from that of the defense Give the witness the opportunity to explain on re-direct

49. Utilize An Expert Explain nature of disability Possible use of lay opinion testimony Compare cognitive ability of victim to that of non-disabled person Mental age Grade level Consider witness order

50. Keys To Success Resolve issues pre-trial Keep the focus on the offender Competency. Offender focused prosecution. - predators; violate confidence & trustCompetency. Offender focused prosecution. - predators; violate confidence & trust

51. Where Do We Go From Here?

52. Breaking Down The Barriers Fostering a multi-disciplinary approach Educating our communities