Court Cases on the Vulnerable Victim
605 S.E.2d 740 (N.C. Ct. App. 2004)
Burt had been diagnosed with FAS, mental retardation, conduct disorder, schizo-affective disorder, major depressive disorder with psychotic features, PTSD, impulse control disorder, bipolar affective disorder, and anti-social personality disorder. She had been hospitalized for psychiatric reasons at least 20 times, and was declared mentally incompetent at the age of 18. While being housed in an acute mental health unit, Burt became very agitated and began banging her head. When she was being restrained, she spit in a Sergeant's face, who then immediately and spontaneously hit her twice in the face with a closed fist. Burt suffered injuries and was awarded compensation under the State Tort Claims Act. The Department of Corrections appealed, and the Court of Appeals affirmed the judgment.
209 F. Supp. 2d 703 (E.D. Mich. 2002)
Regan was convicted of torturing and physically and sexually abusing a 29 year old mentally disabled woman. The abuse continued over a two month period while the victim was living in Regan's home. At times, but not always, the victim was kept in chains to prevent her from escaping. She finally ran away one day when Regan left her alone unchained so that she could clean the house.
A physician who examined the victim concluded that her behavioral problems and her small head size indicated that she had FAS, as well as below average intelligence and emotional immaturity. He concluded that these problems "may have caused her to have an unrealistic estimation of the difficulties escaping from [Regan's] home presented." (209 F. Supp. 2d at 707).
127 F. 3d 1292 (10th Cir. 1997)
Allen J. was adjudged to be a juvenile under the Federal Juvenile Delinquency Act, based on an offense committed within the Navajo Indian Reservation. Allen J. was charged with forcing his then eleven-year old victim to engage in sexual contact. Both the defendant and victim were Native Americans
Allen J. challenged the competency of the witness. The witness was thirteen at the time of trial. Allen J. offered evidence that she suffered from FAS or "Fetal Alcohol Exposure." (127 F. 3d at 1294.)
Under federal law children are presumed competent to testify. A party objecting to such testimony must offer compelling reasons for doubting the competency of the witness in order to get a competency evaluation. The trial judge refused to order such an evaluation, and the appellate court agreed.
The courts framed the question as being whether the witness understood the difference between a lie and the truth, and understood she was supposed to tell the truth. (127 F. 3d at 1295.) What the courts apparently did not realize is that an individual with FAS/FAE may understand the difference between the truth and a lie, but may not grasp the difference between reality and fantasy.
This witness did not respond at all when asked "Do you understand what it is to tell the truth?" and "Do you know the difference between the truth and a lie?" She testified she was eleven (she was actually thirteen) and gave some nonsense answers (e.g. she answered "true" to the question "is it good or bad to tell a lie?") The judges assumed that, at worst, the witness would be "at least as capable of testifying as much younger children." (127 F. 3d at 1294). But even a four year old can accurately describe his or her own age.
Individuals with FAS/FAE are especially vulnerable, and could be preyed upon without redress if they were not able to testify. But the circumstances of this case illustrate the difficult problems that such testimony may raise in some instances.
201 F. 3d 1124 (9th Cir. 2000)
Bahe was convicted of sexually molesting two of his female grandchildren, both of whom had FAS. The girls were 14 and 16 at the time of the crime.
72 Fed. 3d 136, 1995 WL 729484 (9th Cir.)
182 F. 3d 928, 1999 WL 369954 (9th Cir.)
Both Ronald and Mary Butterfly were convicted of sexual molestation of four of his nephews, all of whom had FAS. The defendants challenged the competency of the four children to testify. The trial court permitted them to testify, and in 1995 the court of appeals, by a vote of 2-1, affirmed. The defendants were not permitted to put before the jury evidence that the boys' FAS made them unreliable witnesses. Judge Canby dissented.
There were several problems with the testimony: (1) The children testified that there had also been four separate murders, none of which could be substantiated in any way. (2) Other events related by the victims were apparently improbable and contradicted by other uninvolved witnesses. (3) One witness, Brandon, testified variously that he understood the oath to tell the truth, that he had no duty to tell the truth, and that he did not care that he was under oath. Brandon stated he did not know what would happen to him if he lied in court. (4) A therapist testified that Brandon did not know whether his stories of abuse were true or false. 1995 WL 729484 at *3.
In the 1995 appeal the court upheld the convictions. Subsequently all four of the alleged victims recanted. The trial judge refused to hold a hearing about whether the defendants were entitled to a new trial. The court of appeals in 1999 reversed, and directed that a hearing be held. The court quoted from the dissenting opinion in the 1995 appeal, including this statement: "fetal alcohol syndrome . . . often makes it difficult for its victims to separate fact from fiction. Brandon's therapist testified that Brandon did not know whether his stories of abuse were true or false." 1999 WL 369954 at *1.
52 F. 3d 335, 1995 WL 230349 (9th Cir.)
Charles was convicted of being a felon in possession of a firearm, and was sentenced to 100 months in prison. The conviction was based on the fact that he pawned a rifle at a pawn shop for $150.
Charles offered somewhat equivocal evidence regarding FAS/FAE. A psychological report for the defendant concluded "I do not think that he actually suffers from a fetal alcohol syndrome. However, fetal alcohol effect could contribute to the patient's verbal memory deficits." 1995 WL 230349 *2. The report stated that Charles "may not have had the capacity to . . . understand that possession of the rifle under these circumstances was not acceptable." Charles stated that he had pawned an unloaded firearm solely to obtain money for his family. This may be a case in which an individual with FAS/FAE got in very serious trouble because he did not understand the conditions to which he was subject after his release from prison.
The trial judge relied in part on this in imposing a sentence at the low end of the Guidelines range, but declined to exercise his discretion for a (greater) "downward departure" from the Guidelines. The resulting sentence was still severe, and quite inappropriate if Charles in fact lacked the capacity to understand that he was violating the law. The court of appeals held that such an exercise of discretion was not reviewable on appeal.
71 F. 3d 308 (8th Cir. 1995)
Janis was convicted of sexual abuse of a minor. The victim was a 14 year old foster child living with Janis's family.
The trial judge imposed a greater sentence because the victim was particularly vulnerable, since she had FAS, an IQ of about 65, and a learning disability. The court of appeals approved the enhanced sentence.
The victim was also receiving SSI benefits because of her disability.
141 F. 3d 1171, 1998 WL 165722 (8th Cir.)
Lee pled guilty to sexual abuse of a minor. The trial judge imposed a greater sentence under the federal Sentencing Guidelines because the victim was "vulnerable due to . . . mental condition." The court of appeals affirmed.
The victim had FAS, an IQ of 65, and functioned as a 10-year-old.
Lee and the victim apparently had a long-standing relationship and had had a child together.