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.
A Child’s Story Unfolds
It started in the sawdust, on the floor in a barn in Northern Vermont. Eight-year-old A. had been living with her beloved aunt and uncle for a few days. They had rescued her from a life on-the-run. She had been homeless and living in a car with her mother.
A. loved to be with her uncle while he worked in his woodshop in the barn. She was sitting on the floor, drawing pictures in the sawdust. She looked up at her uncle, saying nothing.
He glanced at the drawings. He looked at them again, then again. Could it be? A. had drawn stick figures of a child and a man. The man’s penis was going in the child’s mouth, vagina, and anus. A. looked up at her uncle, again, still silent. “She’s trying to tell me something,” he thought. How could an eight-year-old child know about these things?
“Did someone do this to you?”
The uncle sat down on the floor beside her and A. began telling her story, using the sawdust. No words were spoken. A. had verbal communication disabilities and she was on a special education plan at school. She could usually talk at least a little, but right now, she could not speak at all. When she was done telling her story in the sawdust, she had identified 11 people who had sexually assaulted her.
Could this be a crazy, fantasy story? Her uncle asked her about the specifics and tried to catch her in a mistake. But she was consistent. The stories of the 11 people were each different as to who did what to her, where, and how many times. Her stories, told in the sawdust, never wavered.
Her uncle carried her back to the house and called the police.
The case was initially handled as all such cases are: the Department of Children and Families sent an investigator, along with a police officer, to interview the child. In Vermont, all of these interviews are video-recorded.
First Interview: Crimes Unfold
The video of A.’s first interview began like any other. There were introductions, chitchat to get the child comfortable, then questions about telling the truth versus telling lies. A. spoke freely during questions. You can see on the videotape that she was at ease.
When the investigator started asking about her “talk” with her uncle, A.’s demeanor changed. She shrank before the investigator’s eyes. As the questions continued, she slid off the couch onto the floor. Finally, she hid under the coffee table. For the remainder of the recorded interview, as the investigator asked questions, it was impossible to see A. She was hiding, like a terrified child, under the coffee table.
The interview could not possibly support a criminal charge. But the Department of Children and Families and the police knew something troubling that the uncle did not:
- Six of the 11 people A. named in the sawdust—all of whom lived in a distant part of the state—had previously been convicted of sex crimes against children.
- A seventh person had been substantiated of child sexual abuse as a juvenile.
- An eighth person had previously been accused (from an eye witness account) of sexually assaulting A.
- A ninth person was facing charges for molesting a four-year-old child.
In sum, 9 of the 11 people A. had accused had histories of sexual abuse of children, and there was no way this disabled child could have known that. This was real. This was a child with disabilities who had been harmed by multiple serial offenders. But now she was so terrified that she had lost all ability to speak about it.
A Case for Prosecution?
Because the child had been living in southern Vermont at the time of the assaults, her video interview was sent to the Bennington County Special Investigation Unit (SIU) to see if Bennington wanted to do anything with the case.
The Bennington investigator, Detective Larry Cole, had just returned, along with the prosecutor, from a training on protecting children with disabilities against sexual assault. They had learned that children with disabilities were 75% more likely to be sexually assaulted, and that the children whose disabilities limited their ability to speak (and thus limited their ability to report) were most at risk. Yet, no one was prosecuting these cases because of the presumption that you cannot try a case with a child who cannot speak. We wanted to change that.
Detective Cole obtained A.’s special education plan to learn everything he could about how she communicated. He learned that she could speak sometimes, and that she could read and write almost at grade level. He spent a lot of time trying to figure out how to make her feel safe and comfortable communicating.
Second Interview: Evidence Gathering
Detective Cole interviewed A., again on video. He began by telling her that his job was to keep children safe. (Never tell a child who has been assaulted that you are a police officer —many of the abused children have been raised to fear police.) He told her that he knew about her talk with her uncle, and that he was hoping they could talk about just one person, and she could pick whatever one person she wanted to talk about.
“John.” She spoke the word.
John was the man who had charges pending against him for molesting a four year old. A. had lived in a house with John for years.
Detective Cole began to ask her about John, using open-ended, nonleading questions like, “What about John do you want to talk about?”
At first, A. could speak words. But quickly, as the questions stirred traumatic memories, A. lost all ability to speak. Rather than end the interview, Cole was ready. He had pen and paper for her to write. He asked the questions; she wrote the answers. After a while, when the questions got to the actual penetration, she could not bear to write anymore. She put her head down on the table, and buried her face in her arms. She couldn’t speak. She couldn’t write. Detective Cole asked her if maybe she could show him with her hands? Maybe she could use the pen to show him what John did with his penis? A. took Detective Cole’s hands, made them form an open circle, and she thrust the pen in and out of the hole between his hands.
She put her head back down on the table, again burying her face in her hands. Detective Cole asked her if she could show him what John had done to her with his hands? Keeping her head face-down on the table, A. took her right hand and thrust it violently up and down over her head with the index finger pointing straight up.
Although A. could not speak, her video-recorded interview was dramatic and moving. She told the story with her hands better than many children who can speak with words. It was certainly enough evidence to bring the charges.
But how can you possibly go to trial in a child sex assault case with a child who cannot speak? Under Vermont law, A.’s video interview would be admissible, but defendants have a right to cross-examine their accuser. If A. could not speak during cross-examination, she would be deemed unavailable and it would be a mistrial. John would walk. Of course the worry was that John would find another child with disabilities to sexually assault. His history suggested a serial predator who preyed on children too young to report (4 years old) or too disabled (A.).
Giving a Child Her Voice
Vermont permitted depositions of child sex assault victims at the time, so the prosecution had an opportunity for a test run. Someone suggested giving A. cue cards for cross-examination. The prosecution and defendant’s counsel worked together to agree on what the cards would say. In the end, A. was given some 50 cards that had every answer she would need; basic things like “yes”; “no”’; “I don’t know”; “I don’t remember.”
She was given cards with numbers 1-10, and another card which said “more times than I can count.” Additional cards had descriptions like: “it hurt”; “it tickled”; “it felt good.” She received cards with the names of everyone she knew, including “John” and many others, and the names of all of the relevant body parts (using the same terms she had written in the interview). There were also some catch-all cards that said, “I want to write it down,” and “I need another card.” If A. could not speak the words herself, she would have the tools she needed.
We began the deposition by telling her that we knew it was sometimes hard for her to speak and that was okay. We gave her the cards, and explained how she could use them. The deposition was just like the interviews: she could talk in the beginning, but when a question brought back the trauma, she said she wanted the cards. She never spoke another word, but she answered every question with the cards. Her story about John was 100% consistent with the interview; not a single fact changed. The cards empowered her. We could go to trial. We had given her a voice.
But then another issue came up. Because of the trauma A. had endured in her life, she was extremely fragile. She had full-blown post-traumatic stress disorder, and she was terrified of John. The experts who were trying to stabilize her had been telling her that she was safe because John was in jail and she would never see him again. But at the trial, she would have to take the stand and face him. The experts feared this would cause her to spiral out of control and that she might never recover. They told us we could not risk it. Would we have to dismiss the case to protect A. from further harm?
Vermont has a rule that permits children in these cases to testify outside the courtroom, but there was not a single courtroom in the state with the equipment to do it. Evidence display systems are expensive, and the state—which, like all states, was in a financial crisis at the time—had no money to pay for it. The situation was hopeless and we were desperate.
We secured a $20,000 grant from the American Bar Association for a state-of-the-art evidence display system with a live video feed. Now, for the first time, we could try cases like A.’s without the child having to face the defendant.
In the end, we did not need to go to trial on A.’s case because her second video interview and deposition “testimony” were so powerful. John pleaded guilty and was sentenced to 15-20 years. He died in prison, and never victimized another child.
New Approach: Protecting Children with Disabilities
After A.’s case, our SIU reassessed whether we were doing everything we could to protect the children with disabilities in our community. More often than not, when police interview a child in a suspected case of sexual assault, the child never discloses anything. Was it because these children had disabilities that made them unable to talk about upsetting things? We wanted to make sure that that was not the case.
We started a new approach, where the interviewers would focus on the potential that a child had a disability, learn about that disability, and then adjust the interview accordingly. Soon, we developed a disabilities-based practice where the investigators would each:
- Ask the person who made the initial report (often a teacher or relative) if the child had any disabilities before the interview.
- Obtain the child’s school evaluations of the disability and any school plans that addressed those disabilities (IEPs and 504 plans).
- Discuss the disabilities with a parent or teacher to gain an understanding of how the disabilities could potentially affect the interview.
- Modify the approach to the interview accordingly, by, for example, making sure to use especially simple language for children with verbal comprehension disabilities, providing writing materials for children who have difficulty speaking, taking frequent breaks, etc.
(See Best Practices for Interviewing Children with Disabilities for detailed guidance, to be published next month.)
Sometimes, of course, there are emergency situations where a child must be interviewed immediately. In those cases, the investigators would collect as much information as they could, and get the rest of the information after the interview so that the prosecutor could work with the special educators for trial.
This new approach allowed us to identify the following trends.
High disability rates
The first thing we learned when we started asking every reporter about the child victim’s disabilities was that over one-half of the children who are sexually assaulted in our county were disabled. Many of the children had disabilities that directly affected their ability to report, including:
- Autism spectrum disorders
- Cognitive impairments with IQs below 70
- Verbal communication disorders
- Anxiety disorders, post-traumatic stress disorder, and emotional disturbances (conditions that often resulted from the sexual assault and dated back to when the assaults first began)
- ADD/ADHD diagnoses (unlike most children diagnosed in kindergarten or younger, our victims tended to be diagnosed with ADD shortly after the first sexual
Tellingly, one of the diagnostic criteria for post-traumatic stress disorder is the onset of an inability to focus. Our children who had kept their assaults secret because they were afraid to disclose developed PTSD, but were diagnosed at school with ADD because no one knew what had brought on the sudden inability to focus.
Strong evidence means strong cases
The second thing we learned is that our cases became stronger. Because we were asking about these disabilities, we gained valuable evidence that we never would have had. For example, we could prove the onset of PTSD at the age of 10 in a child who was now 13 and just disclosed sexual assaults that began when she was 10. Her special education records showed a sudden inability to focus (wrongly diagnosed as ADD) just a few months after the first assault. Another 15 year-old-child, raped when she was 10, had records that showed that she suddenly refused to sit next to boys when she was 10. Both cases resulted in convictions.
Another sign of PTSD is the onset of sleep disturbances. Many of our children have sleep disturbances that were diagnosed shortly after the assaults. Their medical records show that sleep medication was prescribed because of recurrent nightmares and difficulty sleeping—often right around the same time that the school records reflect that the child could not focus and was diagnosed with ADD. We have had many cases where this evidence played a key role in convincing a jury that the child was sexually assaulted.
The written word is powerful
We also found that a child’s written word—“he put his penis in my vagina” —was often more powerful than any spoken testimony would have been. The written notes go to the jury and sit on the table while they deliberate. The notes often have misspellings, and child’s words in child’s writing. But they are always written with care: little girl writing with circles dotting the “i”s, and careful but unsuccessful efforts to write on the lines speak volumes about a child’s credibility.
Defendants are often serial offenders
As we began to prosecute child sex assault cases for children with disabilities, we learned that many of the defendants who prey on these children are serial offenders of children with disabilities. Many of these defendants had prior reports made against them, but the prior cases were not prosecuted due to the child’s disability or weaknesses in the report that now could be explained by an understanding of the child’s disability.
For example, many children with cognitive disabilities have delayed abilities to determine time. Often, there is only the past and the present, and the child cannot distinguish between seasons, months, weeks, days and even years. Often children with cognitive disabilities will not be able to distinguish between last week and last year. One can learn that by reviewing the child’s IEP and talking to the teacher to find out how hard the teacher is trying to teach those concepts.
We recently had a defendant plead guilty in a case where the disabled child unequivocally said the assault happened when the defendant was incarcerated. The child’s teachers for the past two years, the child’s therapist, and the child’s special education teacher were all prepared to testify that the child had no concept of time. This is just another example of why these children are so vulnerable to sexual assault. Of course, their vulnerability makes it all the more important to take on these cases.
Delayed reporting is common
We started using experts, teachers, and special education teachers in our jury trials to explain the child’s disabilities, and how those disabilities affected the child’s ability to report the assaults. The overwhelming majority of “normal” children delay reporting sexual assaults, often for years, and children with disabilities typically delay reporting as well.
Children often keep assaults secret because they are afraid (the offender often threatens them if they should tell), ashamed, or because they were too young to understand that what happened to them was not okay. Children with disabilities delay reporting for all of these reasons and for many others: often, they simply cannot get the words out.
Inability to speak should not hinder prosecution
Since A.’s case, we have obtained convictions in multiple cases where the child victim could not speak. We have learned there is no reason to let a child’s inability to speak or other disability hinder the prosecution. We’ve prosecuted cases involving deaf children, one of whom was assaulted at home while her deaf mother slept and could not hear her efforts to scream.
For deaf children, you need two interpreters: a Certified Deaf Interpreter (CDI) for the child, and an American Sign Language interpreter for the questioner. CDIs are deaf themselves, and they can interpret far more than an ASL interpreter, especially for young children who are not yet fluent in ASL.
We also successfully prosecuted a man who sexually assaulted a teenage boy who had an IQ in the low 50s and also had a significant speech impediment that made his speech incomprehensible to everyone other than his family and his special educator who had been working with him for years. We listed the special educator as his interpreter for trial, and the defendant promptly pled guilty.
Working with children with disabilities takes time—a great deal of time. The prosecutor must meet with treating therapists, teachers, special educators, and interpreters. Remember, these are the children who are most vulnerable and most need our protection.
Today, well over 50% of our child sexual assault cases involve children with disabilities. For the first time, these children are being protected, and the serial offenders who had preyed on this population for years without repercussions are finally being put away. Most importantly, by giving these children the tools they need to get through the criminal process, they become empowered, their self-esteem flourishes, and they learn the skills to protect themselves in the future and to stop the cycle of sexual abuse.
What has become of the 10 additional people that A. identified? So far, she’s not ready to talk about them, but when she’s ready, we will be there for her.
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 American Bar Association’s Pro Bono Publico Award.