Studies show that children with disabilities are far more likely to be sexually abused than their nondisabled peers.1 To protect these children, we have to prosecute their cases. But what do we do about the disabilities at trial? Do we let the jury know that the child is disabled, and, if so, how?
Will a jury be prejudiced against a disabled child and assume the child is incapable of being truthful, or will a jury be more sympathetic?
This article addresses how a prosecutor can present evidence of a child’s disability, focusing on methods that do not humiliate or embarrass the child.
Jurors Sympathize When They Know a Child is Disabled
According to a 2003 study, jurors tend to be more sympathetic when told that a child is disabled. In the study, 160 men and women were shown videotaped testimony from a real trial of a 16-year-old sexual assault victim. The mock jurors were told either that the witness was “mildly mentally retarded” or that she had “average intelligence.” The results were astonishing. When the jurors were told the witness was mentally retarded:
jurors were more likely to vote guilty and had more confidence in the defendant’s guilt; considered the victim to be more credible and the defendant to be less credible as witnesses; and rated the victim as more honest, less capable of fabricating the sexual abuse accusation, and less likely to have fabricated the sexual abuse accusation. Men and women were affected similarly by the disability manipulation, but women were generally more pro-prosecution in their case judgments and perceptions than were men.2
Of course, a prosecutor cannot present evidence of a child’s disability simply because it might make the jury more sympathetic. Rather, like all evidence, it must be relevant to be admissible. When a child witness is disabled, it is almost always relevant. Jurors need a context to judge credibility, and a child’s disability is not unlike telling the jury the child’s age, what grade the child is in, or where the child goes to school. Intellectual functioning and communications disabilities are always relevant considerations when judging credibility. The fact that a child is disabled is often something a jury needs to know.
Deciding if, when, and how to present that evidence at different trial stages can be challenging.
I started prosecuting sexual abuse cases for child victims with disabilities in Bennington, VT seven years ago. I have learned that the process of knowing if, when, and how to present evidence of a child’s disability can be complicated.
The first step is to decide whether the disability evidence helps the case, and, if so, whether to present it. That analysis depends on several factors:
- child’s age;
- any concerns the child has about making disability information public;
- what the disability is;
- how important the evidence of disability is to the case.
Child’s age and privacy of disability information
The first consideration is the age of the child and how the child feels about private disability information becoming public. In a small community like ours, many people know who the victim is, and if the press reports that the child has a disability, that fact will become public for an identifiable child. Accordingly, we proceed with great care.
If a child is very young (under eight) or obviously impaired, the risk of harm to the child by making the disability public is remote, and we usually move forward after consulting the parents or caregivers to make sure they agree with our approach.
For teenagers, it is a different story. They are at an age where they do not want to be identified as disabled; they may fear bullying, and their peers read the newspapers. Do they want the world to know they are intellectually disabled, on the autism spectrum, or suffering from post-traumatic stress disorder (PTSD)? Usually not, at least at the beginning. It is bad enough that they have to testify about being sexually abused; revealing private disability facts, to some children, is even more private. Many children with disabilities work hard to fit in and appear “normal” to their peers. They may fear losing the social progress they have made.
We talk with our teenagers, discuss the pros and cons and how the evidence could affect the case, and we get their permission before going forward. We explain that what we tell the jury is up to them, and we go into detail to explain why we think it might be helpful to the jury, how it will make our case stronger, and perhaps increase the chance of getting a conviction. We are always careful to make no promises about convictions; we explain that juries are unpredictable and the prosecution has a high burden of proof; but we explain why the private information will be helpful. Usually, in the end, the child gives us permission to present the evidence.
Some teenagers have no concerns. As one 14-year-old boy told us recently, “I don’t care. Everyone knows I’m in the PLUS program.” But, for others, we have to be careful not to cause more harm.
Next consider the type of disability and how if affects the case. There are generally two categories: disabilities that resulted from the abuse, and disabilities that the child had before the alleged abuse.
Disabilities caused by the abuse
Disabilities caused by the abuse, such as PTSD, are important because they help prove the child suffered a traumatic event. For example, a child with PTSD will have developed a litany of conditions. These often include a sleep disorder (screaming nightmares), a new inability to focus in school, anxiety issues, and other extreme changes in behavior that are important for the jury to know. On the other hand, a child may be the victim of multiple traumas, and the PTSD may precede the trauma in the present case. It is important to find out when the PTSD symptoms occurred and whether they developed before the trauma in the case.
If, after investigation, the PTSD symptoms are clearly the result of the trauma in the case, this evidence becomes critical and should be presented in great detail (if the child permits).
Disabilities preceding the abuse
Pre-existing disabilities can also be important to the case. Intellectual disabilities, autism disorders, and communications disabilities can help explain errors and inconsistencies in the child’s report about important things like dates, times, and details.
Indeed, evidence of a child’s disability may explain initial denials by the child that the abuse happened. A boy on the autism spectrum who had no friends was worried his perpetrator would kill his dog. Children with difficulty speaking may orally deny the abuse (because that is easier than talking about it), but then write a detailed description.
Evidence of disabilities can also explain the child’s conduct or the child’s tendency to be completely compliant. As just one example, we had a case with a 12-year-old autistic girl who climbed into bed with two different men on two different occasions and was sexually assaulted both times. Absent evidence of her disability, it might be difficult for a jury to find her story credible that she liked sleeping with her parents and she thought climbing into bed with an overnight visitor was the same thing. That case resolved without the need for a trial after we listed an expert to testify about her disabilities.
Disabilities can also help explain why the child was especially vulnerable, and perhaps even targeted, for the abuse. We had one defendant with multiple prior convictions of sexually assaulting young girls with intellectual disabilities. We intended to use his pattern of targeting disabled girls, but the case resolved before trial shortly after we made clear that we intended to present evidence that he had targeted her because of her disability.
Presenting the Evidence
Raising Disability Issues during Voir Dire
Once we know we are going to present evidence of a child’s disability, the next question is how to do that consistently throughout the case. That starts with jury selection.
I raise the disability issue from the moment the trial starts. It is important to find out if potential jurors are prejudiced against children with disabilities, and to remove them from the jury panel. Although I started asking questions in voir dire to bring out any existing prejudice, I have learned that asking the questions in voir dire sets a powerful tone that then prevails throughout the case.
The questions are simple:
- “You will hear that the complaining witness in this case, Johnny, has a disability. Is there anyone here who thinks that, just because a child has a disability, the child is incapable of telling the truth?”
- “Is there anyone here who thinks that, just because a child has a disability, the child is less likely to tell the truth?”
- “You will hear that Johnny’s specific disability is that he has [autism]. Is there anyone here who believes that a child with [autism] would be less credible than any other child, simply because he has [autism]?”
- “Can everyone here listen to Johnny testify, and treat him fairly, the same as you would treat any other witness, without regard to his disability?”
When I ask these questions in Vermont, the jurors look at each other, horrified that anyone would ever suggest a disabled child would not be credible and would not be treated fairly. I have yet to have a single juror answer yes to any of those questions.
Getting off to a good start during voire dire is extremely important. Sympathetic questions set the tone. The jury knows there is something special about this case because the child has a disability. And they have promised to treat the child witness fairly.
Play Down the Disability in Opening Statement
When it comes to an opening statement, I will address PTSD at great length, but I have learned to play down the disability if it existed before the trauma. I have had many cases where a child with significant disabilities appeared completely “normal” on the stand, so I am careful to never overstate my case. I might simply say, “You will hear that Johnny is in special education at school,” or “You will hear that Johnny is on the autism spectrum.” I do not detail the disability during opening.
One time, the result was such a surprise that it was difficult to overcome. We had an expert on autism testify about a 10-year-old boy on the spectrum and all the quirky things we expected to happen when he was on the stand. In his interview, in his meetings with us, and in school, the boy always engaged in unusual behaviors that made it difficult to understand him. He began every sentence with the same phrase, “The thing is….” He was constantly spinning anything and everything.
But on the stand? He engaged in none of those behaviors, and I learned that, regardless of a child’s disability, one cannot predict how disabled the child will appear on the stand.
Presenting evidence of the child’s disability
Once we have a child’s permission to present evidence of a disability, we discuss with the child just how that evidence will come in. Should the child testify about it? A parent? A teacher? Should we hire an expert? Depending how important the disability evidence is, we consider many options, and we may end up doing a combination of things or nothing at all. The child’s input in this process can be essential.
Children who are comfortable with their disabilities
Some children are comfortable talking about their disabilities, and for those children, the decision is easy.
Recently, in a case with a 14-year-old boy who was the victim of sexual abuse, we explained that it would be important for him to mention that he was in an all-day special education program at school because it was important background information for the jury to know. He said he had no problem with that because all his friends already knew he was in that program.
We put his mother on first. She testified that he had some learning disabilities (she did not describe what they were), and that he had been in an all-day special education program since he was little, but was working toward being mainstreamed. Then the boy testified, in the introductory part of his testimony, that he attended the local high school, what grade he was in, and that he was in a special program and he gave the name of the special education program. He said it matter-of-fact, with no drama, but that was all the jury needed to hear to understand what the case was really about. After hearing all the evidence, the jury convicted.
Children who refuse to allow evidence of their disability
On the other hand, some children may simply refuse to share information about their disability.
In a current case, a student who is years behind academically mistakenly told the police the abuse had only been going on for a few months. We have phone records and photographs showing the abuse went on much longer. The student does not want us to bring in his disabilities. Instead, he wants to testify that he did his best to remember, that he’s really bad at dates, and that he was mistaken about the timing he first provided. Because the evidence in that case is so strong, that testimony should be more than adequate and we need not go into his learning disabilities. We did not pressure him to go any further.
On the other hand, the same boy has a terrible case of PTSD. He has agreed to let us present everything relating to PTSD. He, his parents, and his teachers will testify about the dramatic change in his behavior after the events; and an expert will testify that, after reviewing the records, his behavior is consistent with PTSD.
In addition to the child’s testimony, it may be important to call corroborating witnesses about the disability. Parents (if there is a functioning parent) can describe the disability in terms that the jury can understand. We often also list teachers and special educators who can talk in specific terms about the diagnosis and how it affects the child in school.
We often also call experts, with the caveats discussed in the next section.
Never have an expert evaluate the child in person.
Absent extraordinary circumstances, never have an expert evaluate a child to determine the nature and scope of the disability, even in cases involving PTSD.
As soon as an expert meets with the child, the prosecutor opens the door for the defense to retain its own expert to conduct an independent evaluation of the child. No child victim should ever be required to endure an independent examination of the child’s disabilities by a hostile expert retained by defense counsel. It is critical not to open that door.
Instead, when we retain experts, we are careful to show them only documents. We will provide special education and academic records from the school, and we provide copies of depositions where family members and others talk about the disability. If we do not have depositions, we get written statements for the expert to review. By limiting the expert’s work to the review of documents, we protect the child from an independent evaluation. The defense can retain an expert who can review the same documents.
So far, using this practice, no child in our county has ever been subjected to an independent evaluation by the defense.
Never use a treating therapist as an expert in the case.
Similarly, absent extraordinary circumstances never use the child’s treating therapist as an expert in the case. If a prosecutor uses a treating therapist as an expert, there is a significant risk that it will result in a waiver of the child’s patient-client privilege. All therapy records will be opened by the defense; the child will feel completely violated; and a successful therapy relationship may be permanently destroyed. For very young children, this may not pose a problem; but for older children, it can be devastating.
In addition, therapists are required to take notes of each therapy session. Those notes could be damaging, taken out of context, or otherwise harmful to the case. Although that therapist may have crucial information (indeed, the therapist may be the person who diagnosed the child with PTSD), a prosecutor can accomplish the same result by retaining an independent expert who is never given access to the therapy records.
For example, for children with PTSD, we collect evidence of changes in behavior from the child, the child’s caregivers, and the child’s teachers. Because PTSD takes time to develop after the trauma, we usually have these conversations a few months after the abuse occurred.
We ask the caregivers whether they have noticed any changes in behavior, and then we make a detailed list of everything that the caregivers have noticed. We make sure to cover all symptoms listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV-TR). If the caregiver does not mention, for example, nightmares, we will specifically ask whether the child has experienced nightmares. When the caregiver’s list is complete, we present that information to the expert, either in a written statement or a deposition transcript.
We then go through the same exercise with the child. Sometimes, the most important evidence comes from the child at this point in the case. The details of the nightmares, for example, may never have been shared before. The parents know only that the child wakes up screaming at night; the child knows why. The nightmares, in particular, can be powerful evidence. After getting a list from the child, we share that list with the expert. If the child tells us that there have been changes in school, we speak to teachers and get a list from the teachers of what they have noticed, and provide that to the expert.
In all of these discussions, we are careful not to put ideas into their heads, but rather, just to get a truthful and accurate list of the changes in the child’s behavior.
When we are done getting lists from everyone, we have powerful evidence for the expert. This evidence is in a form that can be shared with the defense without waiving the patient/client privilege or subjecting the child to an independent examination.
The expert cannot testify that the abuse occurred or that he/she would diagnose the child with PTSD, because an in-person evaluation is necessary for a formal diagnosis. But, we have the expert go through the DSM IV-TR list of PTSD symptoms, and for each symptom, we ask the expert if he found any evidence of that symptom. The expert can then testify to his opinions that: (1) all of this evidence is consistent with a diagnosis of PTSD; and (2) it would be unlikely for a child to have these dramatic changes in behavior absent a traumatic event.
Making Your Closing Argument
When we get to the closing argument, we take the disability evidence into consideration much like any other evidence, and argue about when it is appropriate.
When we have evidence of PTSD, that evidence is always powerful, and PTSD will be a key focus of the closing argument. Juries understand that children do not suddenly develop extreme changes in behavior—the equivalent to our soldiers who experience war trauma—unless something very serious happened to the child. Accordingly, the evidence of PTSD is often the strongest corroborating evidence we have.
In contrast, the importance of arguing about pre-existing disabilities depends on whether it is necessary to explain the child’s errors in testimony, lack of memory of details, apparent complacency or “freezing” during the sexual abuse, the reasons for a delay in disclosing the abuse, or other relevant factors. If there are no errors or behaviors that need to be explained, and the child did well on the stand, it might not be necessary to mention the disability at all. But usually, the defense has picked out some “holes” in the story or things that the child could not recall, and it is easy to confront those claims by reminding the jury of the child’s disabilities.
In addition, I often argue that it would take an incredibly smart person, and a gifted actress or actor, to tell a series of lies, remember them in explicit detail, and keep the story straight for months (or years) while the case is pending. I tell the jury that lies are really hard to remember. I then remind the jury of the child’s disability, and explain that it would not be possible for this child to remember those details and keep the story straight unless it was the truth. Jurors often nod in agreement
Presenting evidence of a child’s disability at trial is a process that takes thought, care, and preparation. With proper planning, a prosecutor can use that evidence to strengthen the case without causing harm or embarrassing the child.
Christina Rainville, JD, is the Chief Deputy State’s Attorney for Bennington County, Vermont, where she heads the Special Investigations Unit. She is also a former recipient of the ABA’s Pro Bono Publico Award.
1. Studies funded by the World Health Organization in 2012 reported that children with disabilities are nearly four times more likely to experience violence than nondisabled children, and 2.9 times more likely to be victims of sexual violence. The WHO report is available here: www.who.int/disabilities/violence/en/, and the studies are as follows: Jones, Lisa, Mark A. Bellis, et al. “Prevalence and Risk of Violence against Children with Disabilities: A Systematic Review and Meta-analysis of Observational Studies.” The Lancet 380(9845) Sept. 8, 2012, 899-907; Emily M. Lund and J. Vaughn-Jenson. “Victimization of Children with Disabilities.” The Lancet 380(9845), Sept. 8, 2012, 867-869. See also, Nancy Smith and Sandra Harrell. “Sexual Abuse of Children with Disabilities: A National Snapshot.” Vera Institute of Justice, Issue Brief, March 2013.
2. Bottoms, Bette L., Kari L. Nysse-Carris, Twana Harris and Kimberly Tyda. “Jurors’ Perceptions of Adolescent Sexual Assault Victims Who Have Intellectual Disabilities.” Law and Human Behavior 27(2), April 2003, 205-227.