The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
The Bennington County, Vermont State’s Attorney’s Office began prosecuting sexual abuse cases for children with disabilities six years ago on a promise to an eight year-old girl who had been repeatedly sexually assaulted by multiple abusers but could not speak about it. We promised her we would prosecute her case and put her offender in jail so she would feel safe, and we moved forward despite the challenges caused by her communications disability. Six years later, what was, at best, a hopeful experiment on behalf of one little girl has become a determined commitment to all our disabled children, and to our community as a whole.
Prosecuting cases for children with disabilities poses unique challenges, but we have learned the disabilities the children were born with are just the beginning of the difficulty. The overwhelming majority of our sexual assault victims develop post-traumatic stress disorder (PTSD), which is a disabling neurological response to trauma.
Inability to focus, sleep disorders (e.g., screaming nightmares), hypervigilence (e.g., constantly checking doors and windows to make sure they are locked; thinking that the defendant is around every corner), and sensory triggers that remind the child of the trauma and make the child feel as though the assault is happening again at that moment, are the classic symptoms. PTSD makes trying these cases extremely difficult, as many children simply cannot appear in court.
In addition, a large percentage of our child-victims who are removed from their homes due to physical/sexual abuse and are placed in foster care develop Reactive Attachment Disorder (RAD), which is another disabling neurological response to trauma. RAD makes a child unable to have normal attachments to caregivers, and makes the child especially difficult to work with for the prosecutor.
By the time we get to trial, it is common for us to be working with a child who has an underlying disabil- ity, and, on top of that, has developed full-blown PTSD and RAD. The efforts required to support these children through the court process can be overwhelming.
Applying a Different Mindset to Cases
We have learned that prosecuting these cases requires a completely different mindset, from the moment that the report comes in until the case goes to the jury. Indeed, as will be discussed below, protecting these children requires systemic changes in our legal system.
Providing accommodations from the first interview
For our investigators, the process starts immediately by getting information about whether a child has a disability. In Vermont, one of the questions asked now, every time a report is made to the state’s Department of Children and Families, is whether the child has any disabilities. As a result, our investigators know before the interview exactly what they are dealing with. They collect additional information if necessary, such as the child’s Individualized Educational Plan (IEP), 504 plan, or input from a caregiver or teacher about whether accommodations might be required in the interview.
Conducting the interviews in a way that enables the child to communicate is only the first step.
Rethinking what makes a case “prosecutable”
Prosecutors who worry about conviction rates need to suspend those concerns. These cases may be difficult, and they may not be the kind of “slam dunk” that a prosecutor wants to take to trial. But they are winnable, if prosecuted with care and with accommodations for the child. The alternative—not prosecuting the case—only makes the prosecutor a participant in the problem and not part of the solution. If prosecutors do not take these cases, or plead them down for a slap on the wrist, the abusers are left to find additional vulnerable victims.
Failure to prosecute leads to more victims
We have one case now where a man in his 40s was accused of sexually assaulting four vulnerable teenage boys in the 1990s. The boys all had significant learning disabilities. The defendant gave alcohol to two of his victims until they passed out in his car, and they both woke up to being sexually assaulted. Two other similar reports came in around the same time, with two more boys. The defendant was charged for the assault on only one of the four boys. He was then allowed to plead nolo contendere—not even guilty—to a misdemeanor lewd act. He never spent a single day in jail. And the state agreed to not prosecute any other cases that were known to the state at the time.
The four victims never had their day in court, and they suffered immeasurably. One of his victims committed suicide. Another became addicted to drugs and has been in and out of jail ever since.
All three living victims will be testifying for the state, though, in a new case. They will finally get their day in court, nearly 20 years later, because the perpetrator has a new victim. We asked the old victims, now men in their 30s, if they wanted to testify about the defendant’s pattern. All three men want to do whatever they can to make sure there are no more victims, and they agreed to testify.
The new case is much like the four cases in the 1990s. The defendant, age 60, was charged with repeatedly sexually assaulting a 14-year-old boy. This boy, like the others, has significant learning disabilities. And now, he has also developed probably the worst case of PTSD we have ever handled. His suffering is immeasurable.
The most tragic thing is that it never should have happened. With four victims in the 1990s, this perpetrator should never have been free to victimize more children.
Every time we have a case with a victim with disabilities, and we think about how challenging the case will be, or we question whether the jury will understand, we move forward. We move forward because we have too many cases where defendants abused disabled children, got a slap of the wrist or no charges at all, and then found more victims. Every time we decide not to prosecute a case because the child is too disabled, we send a message to defendants that they are free to abuse again. And we just cannot be doing that anymore.
As we work to bring justice for these children, we have learned that existing laws can provide barriers, and this needs to change as well. Prosecutors have some political clout in their communities, and improving the laws to better protect children with disabilities has become a focus in our office.
Mandated reporter laws for special education children
We were shocked to learn that Vermont’s mandated reporter laws inadvertently did not cover the schools that serve Vermont’s most disabled children. In Vermont, there are three types of schools for children: public, private, and “independent” (which are publicly-funded schools that are operated privately). Vermont had laws that required mandated reporting and mandated-reporter training in schools, but the law inadvertently excluded independent schools.
Independent schools are where the most severely disabled children are placed in Vermont. Vermont’s school for deaf children is an independent school; and all of the residential programs for the most severely disabled children are independent schools. Unfortunately, by inadvertently excluding independent schools from the mandatory reporting and training requirements, the law eliminated the protections for the children who needed them most.
In our county, in Bennington, there are 10 independent schools where children were not protected by the mandated reporter laws. We changed that.
We worked with our local legislators. We wrote the bill that was presented to the legislature. We put together a team of state police, prosecutors, and victim advocates who testified before the state house and senate committees that were considering the bill.
Our coalition carried the day. The bill passed. The governor signed it. Now our children are all protected, pursuant to 33 V.S.A. § 4913.
This year, we received the first mandated report from an independent school in our county under the new law. The school had informed its staff when the school year started that they were now all mandated reporters, trained its employees on the law, and then followed through.
Extending statutes of limitations
Now we are working to extend Vermont’s statute of limitations for sexual crimes against children. Under the current law, the limitations period expires when the child turns 24, or 10 years after the crime is first reported by the child. Since we have cases with children who report sexual abuse as young as 4, the limitations period can expire when those children turn 14. Clearly, these deadlines need to be extended.
Again, we have put together a coalition of support, including prosecutors, police, victim advocates, and the Vermont Agency of Education. We also are working to bring adult victims whose cases are time-barred to testify before the legislative committees considering our bill. As of this writing, the bill has sailed through the Vermont Senate and will hopefully pass the House.
Setting new legislative goals
We recognize that we cannot ask our legislature to do everything at once, so we have both long- and short-term goals for each year’s legislative session. Future goals include enhancing protections under the criminal laws for children with disabilities.
Judicial System Changes
State and local judicial systems, too, need to take part in the process for change.
Training about common disabilities
All judges should be trained to have a basic understanding of common disabilities and how they can affect a child’s ability to testify.
A child’s disability can affect every aspect of the court process—
- Children with neurological disabilities may have difficulty understanding complex questions, questions that use words with double meanings, expressions, idioms, or leading questions.
- Other children may understand the questions but not be able to respond in a “normal” way due to communications disabilities.
- Children on the autism spectrum may also have sensory issues where they cannot tolerate some aspect of the courtroom, from the lights, to the space, to the people.
- Children with PTSD may require special planning to avoid their triggers.
- Children with RAD may be rude and disrespectful to the judge.
In all of these cases, judges need to understand the child’s behavior is not something a child can control, but rather, a function of a disability.
Training about the Americans with Disabilities Act
The Americans with Disabilities Act (ADA), 42 U.S.C. §12132, requires all courts to provide accommodations for witnesses with disabilities to permit them to testify. Judges should be trained about the ADA, the range of accommodations that may commonly be required, and how to analyze those accommodations against a defendant’s right to a fair trial.
Court systems should also establish procedures for judges to use when considering the need to provide accommodations to witnesses with disabilities, much like the Massachusetts Supreme Court did in In re McDonough, 457 Mass. 512 (2010). There, the court established that witnesses with disabilities have a right to a hearing before the trial court denies a request for accommodation, that such decisions are entitled to interlocutory review, and that the party seeking to use the testimony has standing to seek review.
Investing in Courtroom Technology
A key aspect of eliminating barriers to access for our children with disabilities is technology. These children, much more than their nondisabled peers, need to be able to testify outside the courtroom. Local court systems need to invest in that technology if they have not done so already.
Children with PTSD need to be able to testify outside the courtroom because they cannot see their offender without being triggered, and having to face their offender may make it impossible to testify, or worse. Many of these children may suffer relapses in their treatment by even thinking about having to face their offender in court. This can apply in all cases where the offender has perpetrated abuse on the child, regardless of whether the abuse is sexual, physical, or emotional.
Children with other disabilities may need to testify outside the courtroom for other reasons. Children on the autism spectrum may not be able to bear the sensory overload that a courtroom environment entails. Children with intellectual disability may become similarly overwhelmed; and any child with any disability may simply shut down over the stress of testifying in a crowded courtroom.
In Bennington County, we recognized that we desperately needed the equipment to enable these children to go forward with their cases. But there was no funding available; the entire country was in a recession, and the situation appeared hopeless. So we looked for grants everywhere.
We were fortunate that the American Bar Association’s Center of Children and the Law managed a grant program at that time, which provided us funds to purchase and install courtroom technology. The program, supported by the Bureau of Justice Assistance (U.S. Department of Justice), was designed to enable children to testify remotely in abuse cases, by reducing the trauma of testifying in open court.
Then we hit an unexpected problem: Vermont’s rule required that the technology be set up so the child could see the defendant. That defeated the purpose of getting the technology, and it also completely exceeded our budget. In desperation, we wrote the chief administrative judge and asked the Vermont Supreme Court for an emergency change to the Rule. Just weeks later, the Vermont Supreme Court issued Administrative Order No. 38, granting us permission to install a one-way video system where the defendant could see the child testify but the child would not be able to see the defendant. We are grateful that our Supreme Court acted so quickly.
One amazing thing about having video equipment is it is a powerful tool regardless of whether we actually use it. For our most disabled children in cases where we know we must use the equipment, the defendants have all pleaded guilty because they knew we could go forward. In our remaining cases, the equipment is an option that can be used at the last minute; simply knowing that it remains an option empowers our children to be able to testify in the courtroom. We tell the children they do not ever need to worry about testifying in the courtroom because we have the technology that makes it possible for them to never have to do that. For many children, that is all they need to hear. They feel strong because they know that if it comes to it, it is always an option. The equipment instantly became a powerful tool for protecting our most vulnerable children.
Live writing of a child’s answers
The equipment that enables children to testify live outside the courtroom has an added benefit: the display system can be connected to a computer on the witness stand so children who cannot speak can type responses in real time. If there is a witness who suddenly becomes mute in the midst of testimony, it only takes a moment to set up a computer and switch gears to a written communication method that works better for the child.
Modifying Court Rules
In addition to investing in technology, the judiciary also needs to reassess court rules that inadvertently bar access for children with disabilities. Court rules are based on precepts and concepts that no doubt pre-date the Magna Carta and are therefore viewed as immutable. If we are going to protect our most vulnerable children, some of these longstanding principles must be modified, and some should be set aside entirely in appropriate cases.
For example, rules that require witnesses to “speak” their answers, or favor speech over other communication methods, should be eliminated entirely and replaced with rules that allow witnesses to communicate by any method that can be understood by others.
Rules regarding leading and nonleading questions
Leading and nonleading questions can cause problems for children with disabilities. Most court rules, such as Rule 611 of the Federal Rules of Evidence, allow prosecutors to ask a child leading questions on direct examination when “necessary to develop the witness’s testimony.” Often, a judge may order that intuitively when a very young child is on the stand and struggling to answer questions. The need to ask leading questions can also be important for older children whose disabilities impair their ability to provide narrative responses.
For many children on the autism spectrum, for example, their disability may make it impossible for them to provide coherent narrative responses when they are perfectly capable of responding “yes” or “no” accurately. Judges should be trained about common disabilities and how the disabilities can impair a child’s ability to testify unless accommodations are provided.
An even bigger question is whether children with some disabilities should be asked leading questions at all. For example, in contrast to children on the autism spectrum, children with intellectual disability have been shown sometimes to have particular difficulty with leading questions.
In a criminal trial setting, there is an obvious dichotomy involving the use of leading questions. All forensic examiners who interview children are trained to avoid leading questions when possible. Studies suggest that some children (particularly young children or children with intellectual disability) may provide inaccurate responses if the questions are asked in a leading manner that suggests the answer. Indeed, a forensic interview that contains leading questions will be attacked vociferously by the defense at trial.
Those same children are subjected to vigorous cross-examination by leading questions by defense counsel. What sense does that make? Does a defendant’s right to confrontation include the right to ask questions in a manner that confuses a child with disabilities and results in clearly inaccurate responses?
We once had a trial where a defense expert attacked the credibility of a 10-year-old boy with disabilities because leading questions were asked during the initial interview. The expert went so far as to claim the questions had forever “tainted” the child’s memory. But the same child was subjected to a three-hour deposition with leading questions by defense counsel,1 and an exhausting cross-examination by leading questions at trial.
We recently had a trial where an adult woman with intellectual disability answered nearly every cross-examination question with a “yes”—regardless of whether the leading question contradicted her careful narrative responses on direct examination.2 For some individuals with intellectual disability, leading questions could just as well be in a foreign language.
The right to confront witnesses with leading questions is not mentioned in the Constitution. Judges should be prepared to weigh the right to cross-examine by leading questions against the child witness’s right under the Americans with Disabilities Act to reach a fair result for both the child and the defendant. These are novel issues, with no firm answers, that will undoubtedly require fact-specific analysis and results that will differ from case to case.
Prosecutors, victim advocates, judges, defense lawyers and guardians all need training to learn the common disabilities that affect children in our court system. The federal government and state governments should establish training programs to ensure that the people who work on these cases understand the potential issues and have the flexibility and resources to provide necessary accommodations.
Providing real access to our court system to children with disabilities will require systemic change and a commitment by the entire legal community to accomplish that goal.
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.
This article is the last in a series focusing on disabilities in child abuse and neglect cases. For other articles by Christina Rainville, visit CLP's “Disabilities” article collection.
1. Vermont’s rules at the time, which have since been changed, permitted depositions of child victims in sexual assault cases.
2. The jury fully understood her disability and convicted the defendant of sexual assault and sexual assault on a vulnerable adult despite her contradictory cross-examination by leading questions.