December 01, 2012

Prosecuting Cases for Children with Intellectual Disabilities

Christina Rainville

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.

Children with intellectual disabilities1—IQs below 70 combined with other impairments affecting their ability to function—have a high risk of being sexually assaulted. Prosecutors can protect these children by bringing their cases to court.

While all children with disabilities are more likely to be subjected to being violently physically abused than children without disabilities, recent studies show children with “mental or intellectual impairments appear to be among the most vulnerable, with 4.6 times the risk of sexual violence than their nondisabled peers.”2  

Adults with intellectual disabilities in the United States are sexually victimized at rates of 4 to 10 times the general population, and 25% to 85% of adults with intellectual disability have been sexually victimized at some point in their lives. Studies show that adults with this disability are prone to victimization for multiple reasons; the same reasons apply to children with the disability. Many rely on caregivers whom they trust without question; are naive and socially insecure and will do anything to have a friend without understanding what they are doing; and are nonassertive by nature and unable to say no.4

At the Special Investigations Unit in Bennington, Vermont, we regularly have sexual assault cases involving children with IQs of 75 or below. While the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) sets the cutoff for diagnosis of this disability at an IQ of 70, we see little functional difference between children with IQs of 68 and 75. They typically have the same personality traits that put them at risk: naive, trusting, confused about what has happened to them, and nonassertive. As the IQ moves lower, the problems magnify.

Of the cases we handle involving children with disabilities, these can be the most difficult to prosecute. The only way to protect these children is to regularly prosecute their cases, despite the challenges. The prosecution team must adjust its thinking about what makes a case strong enough to take to court.

Acknowledging Reporting Differences

One hurdle in prosecuting cases where the child is intellectually disabled is how the child’s disability affects the child’s report of what happened. There are several significant factors:

  1. These children have trouble overcoming outside influence and will not disclose at all or repeatedly deny that anything happened before they disclose;
  2. They cannot provide supporting detail and instead give simplistic, rudimentary reports; and
  3. They cannot report some facts accurately.

Understanding how to overcome these obstacles is critical.

Denials due to outside influences

The influence of others can affect report accuracy. These children typically place total confidence in their caregivers—adults and older children. Getting them to defy a trusted person to disclose something they have been told not to can be an enormous first hurdle.

D’s case is a perfect example. She was 10 years old with a borderline IQ and a verbal disability. Speaking was difficult and she was usually mute. But she could read and write, and she began writing daily letters to her teacher and school counselor. Her letters described physical abuse and lewd touching, with hints of sexual assault that were happening at home. She feared going home and begged one teacher to let her live at the teacher’s house.

The school made multiple reports to the Department of Children and Families (DCF). But every time the police interviewed D., she said nothing happened. Worse still, she lied and said she never wrote notes to the teachers. We tried everything to get her to communicate: we used different interviewers and approaches. Nothing worked, no charges were brought and, to our horror, she remained in her home because we had no legal basis to remove her.

Then, the offender was arrested for a violent crime on another person and was put in a detention facility. D. told her counselor she was ready to talk to the police, and finally disclosed much of what she had described in her letters. The perpetrator’s presence in the home had created a barrier to her communication with the police. She had felt safe telling her teachers about the abuse, but there was no way she was telling the police and getting him in trouble as long as he was anywhere near her.

Most children delay reporting a sexual assault. In our practice, children with intellectual disabilities almost always delay disclosure -- often for years. Another common problem is that, when questioned, these children generally deny anything happened in the first interview. We had another case where a defendant was charged with sexually assaulting multiple young girls with intellectual disabilities. An additional child, E., who was known to have had contact with the defendant, was interviewed to see if anything had happened to her. Even when directly asked, and even though the defendant was safely away in jail, she denied that anything had happened. She came forward many years later, explaining that she had lied before to the police because she “wasn’t ready” to talk.

Normally, when a child has denied to the police that anything happened, and later changes his/her story, the initial denial may make it impossible to bring charges. With these children, however, initial denials are common and the prosecution team needs to learn to work around them. Before deciding not to bring a case because of an initial denial, we look further. In both D. and E.’s cases, there was ample evidence to overcome the initial denial. As detailed below, we had to look for it.

Disclosures with few facts

Another problem with reports made by children with intellectual disabilities is that their stories of what happened are usually rudimentary and devoid of supporting facts that juries use to determine credibility. While a “typical” child, even in a delayed disclosure case, can be expected to remember important details and give a somewhat-chronological report, children with intellectual disabilities usually cannot. Their reports may be as simple as the sex act that occurred and who did it, with no additional details. They may not remember what room or even what house; they may lack details about what anyone was wearing. They may not recall whether anyone else was in the home or be able to describe how it felt.

D. and E.’s cases are typical. D., the girl who wrote the letters to her teachers but denied anything happened in her first three interviews, provided even fewer details in her final interview. She described one brief act, on a bed, while music was playing; that was the full extent of her report. E., the girl who was assaulted in a bathroom, remembered the sex act, that it was in a bathroom somewhere, and who did it to her. She remembered no other details, and could not accurately remember when it happened.

We had another case, F., whose parents came home to find used condoms. After being questioned by his parents and initially denying anything happened, he said his caretaker had “put his wiener in my butt,” but that was all the detail he could provide until much later in the case.

Rudimentary stories are normal with these children, but that should not affect the prosecutor’s (or the jury’s) assessment of their credibility. The child’s teacher, special educator, therapist, or an expert can explain that the lack of detail is due to the child’s disability. Indeed, that can be buttressed further by a teacher providing examples of similar lack of detail in the child’s school work. Juries need to understand that the child’s inability to provide detail is one thing that makes the child vulnerable to sexual abuse.

Understanding a child’s error

A third problem we routinely see in these cases is the children make mistakes in their reports, especially about important facts, such as the timing of the assault.

In D.’s case, she had been writing to her teacher and counselor for months about the abuse. When she was interviewed, she claimed the abuse happened just weeks before—at a time when the defendant, indisputably, was incarcerated. The investigators asked multiple questions about the timing and she just got more firm in her responses: this assault happened in February, period.

We knew it could not have happened in February. Now what? Why would she lie and say it happened in February? She had given three separate denials that anything had happened, and now this. Was the whole story a lie and she just could not keep her facts straight? Or was something else going on?

We find these kinds of errors are the norm for children with intellectual disabilities. Some facts in their report simply cannot be true, but there is usually an explanation for why they could not get their stories “right.” The key is to analyze the facts carefully to figure out whether the child’s story is false or whether the child’s disability created false facts in an otherwise true story.

In D’s case, we went back to her story to try to understand what happened. We re-read the letters she wrote to her teacher and counselor in the preceding months. She wrote of pain, fear, and wanting to kill herself. She gave assault details that were more specific and matched some (but not all) details she gave the police. The letters were deeply moving—especially those written at the end of the school day, where she was pleading for the teacher to take her home with her. The letters did not seem like she was making this up—and how could she? The writing was simplistic and full of grammar and spelling errors. Could this child with significant intellectual disabilities be a gifted fiction writer? That did not seem likely.

Getting Help from the School

We asked to meet with D.’s teacher and counselor, and her special educator to get a better understanding of her disabilities. The school’s response to our request for a meeting was extraordinary. Every teacher who had worked with her for the past two years attended, along with the special educator, the counselor, and the principal. We learned that D’s situation was affecting just about everyone who worked with her at the school: they knew she was being harmed; they made the mandated reports and yet nothing had been done to make her safe. The situation was very emotional and upsetting for the school staff.

At the meeting, the people at the school all said the same thing. She was a good kid, and they were disturbed by the changes they saw in her: she was becoming less and less verbal at school; was not bathing; was wearing the same dirty gray sweatshirt every day. She had never behaved this way before, and she was losing ground in school. They said they could see the terror in her eyes as the day came to an end, how she held her arms folded against her chest and buried her head. They dreaded her daily letters. They dreaded seeing the look on her face when she walked up to them with a letter, her head always down. She could not make eye contact. It seemed everyone at the school hated watching her get on the school bus. Her teachers could not sleep because they were worried. Several at the meeting offered to have her come live with them. They pleaded with us to do something to keep her safe.

We asked the group whether there were areas of disability that might cause inaccuracies in her report. Her teachers and the special educator almost all jumped at once: “She can’t tell time. She doesn’t know the months of the year. She doesn’t know the seasons. She doesn’t know the difference between last week and last year, or even this morning and last Christmas. We’re working with her on these concepts, but she is not making progress.”

Suddenly, it made sense. Her disability caused her to inaccurately report the timing: she had said the assault happened in February, but “February” meant nothing to her because she did not understand the months of the year. We brought the charge and listed all the school employees as witnesses to testify about how her disability affected the report accuracy, the letters, and changes in her demeanor.

Although this case began with multiple denials to the police and a suspect report in terms of the timing, the defendant admitted the conduct. D. has been safe and thriving ever since. She has started to talk again, is arriving at school clean and well-dressed, and is beginning to make eye contact and hold her head high. The people who worked with her at the school are relieved. We learned an important lesson: children with intellectual disabilities make mistakes in their reports, just as we would expect them to make mistakes in math or writing. Those mistakes do not necessarily affect the overall credibility of the report.

Documenting Timing of Events

E. similarly reported that her assault happened “in fourth grade, when I was three or four.”  She could not understand that age three or four was too young for fourth grade. She explained that she was “bad with dates and numbers” and that she has had difficulty focusing in school ever since this happened. We tried working backwards, starting with her current age and grade, and she quickly became too confused to figure out how old she would have been in fourth grade.

In addition to her confusion about when it occurred, we had the problems with her initial denial to the police and the rudimentary nature of her report. Despite these errors, her story seemed credible. The child also had no reason to lie: the defendant had been in jail for years and she had nothing to gain by making this report. She had a simple, but reasonable, explanation for why she initially denied being assaulted when she had been questioned years before: she “wasn’t ready.” Moreover, we knew the defendant was a serial predator of children with intellectual disabilities, that he assaulted them in bathrooms, and that he had had access to this child before he went to prison.

We got her school records to document her disability to help explain the error and the rudimentary nature of her report. The school records showed she was diagnosed with Attention Deficit Disorder (ADD) in fourth grade. Children typically get diagnosed with ADD before fourth grade and this late diagnosis corroborated her story of not being able to focus after the assault. Although she could not provide a completely accurate report of the timing of the sexual assault, her school records showed the most common symptom of post-traumatic stress disorder in fourth grade: an inability to focus. We concluded the assault happened when she was in fourth grade rather than when she was three or four.

We filed the charges hoping we could educate a jury about her disability to explain her initial denial, the missing details of her report, and the confusion over the timing. We never had to do that: the defendant immediately pled guilty. All it took to bring justice to this child was to simply bring the charge.

Using School Records to Your Advantage

To successfully bring these cases, the prosecutor must dissect the initial denials and errors in the child’s report and determine whether they can be explained by the child’s disability. To understand the full picture, the prosecutor needs to review the child’s Individualized Education Plan (IEP) and educational assessments and talk with the child’s teacher and special educator. It is important to flush out, as best as possible, whether something is simply a lie (“I never wrote those letters to my teacher”), or an honest error caused by the child’s disability. Lies generally require a motive, and the motives for lying are usually obvious and predictable with these children.

Children with intellectual disabilities are typically diagnosed before kindergarten when they fail to reach normal milestones. After being diagnosed, they must, as required by law, be reassessed every three years for their IEP plan. These records can be a treasure trove of evidence that a sexual assault has occurred, and they can even answer the question of when the sexual assault occurred.

The records, as in E.’s case, may show signs of post-traumatic Stress Disorder (PTSD) when a child is suddenly diagnosed with: ADD after never having had problems focusing before; a sleep disorder of sudden onset; or new angry outbursts or generally declining behavior. Children with intellectual disabilities have their IQs assessed every three years; while there is some fluctuation expected in IQ, there may be a sudden drop that is beyond the normal fluctuation for that child. All these factors are consistent with the onset of PTSD if they were not present in the child’s assessments before the assault.

With school records in hand, and teachers and special educators lined up to explain the child’s disability and how it could have affected the report, the case is ready to go despite the obstacles.

Using Courtroom Accommodations

These children often require courtroom accommodations. In some cases, an interpreter may be required due to the child’s speech difficulties. In F.’s case, because only his immediate family and special education teacher could understand him, we listed his teacher as an interpreter. While it is always preferable to use an interpreter who is not a family member, some courts have upheld the use of family members as interpreters.5

Leading questions

Another accommodation that might be required is controlling the form of questioning for the child at trial. Unlike children on the autism spectrum (who may require leading questions to give a verbal response), children with intellectual disabilities may require a different accommodation at trial: no leading questions.6

Studies have shown that these children are susceptible to giving the wrong answer in response to a leading question because of their tendency to acquiesce, either to please the questioner or if the question is too hard to understand. If this is a problem for a child, it may be necessary to file a motion seeking that the cross-examination not be by leading questions and that questions are simple in form and word choice. All courts are required by federal law to accommodate witnesses with disabilities in court proceedings under the Americans with Disabilities Act; the law also applies to children whose disabilities affect their communication skills.7

Alternate testimony

In addition, having children testify outside the courtroom may be necessary. Often they go back to denying anything happened when they see the defendant in court. At a minimum, the court should be informed of the potential testimonial issues.

Conclusion

Cases involving children with intellectual disabilities might seem unwinnable. By understanding the personal challenges these children endure, prosecutors can adjust interviewing and evidence-gathering techniques and seek courtroom accommodations that promote successful prosecutions. Juries will understand when teachers and special educators explain the issues these children face. Prosecuting cases for children with intellectual disabilities can be challenging, but it is important to make the extra effort to protect these vulnerable children.

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.

Stay tuned: This article is one in a series addressing advocacy for abused children with disabilities. 

Endnotes

1. Given how upsetting it is for a child to be called “mentally retarded,” we do not use that term.

2.  Hughes, Karen et al. “Prevalence and Risk of Violence against Children with Disabilities: A Systematic Review and Meta-analysis of Observational Studies.” The Lancet, Online Publication, July 12, 2012. Also available through the World Health Organization at www.who.int/disabilities/publications/violence_children_lancet.pdf .

3. Morano, Jamie. “Sexual Abuse of the Mentally Retarded Patient: Medical and Legal Analysis for the Primary Care Physician.” Primary Care Companion Journal of Clinical Psychiatry 3(3), 2001, 126-135; also available at www.ncbi.nlm.nih.gov/pmc/articles/PMC181173/.

4. Ibid.

5. See, e.g., United States v. Bell, 367 F.3d 452, 463-464 (5th Cir. 2004) (affirming use of sister as interpreter for a deaf-mute sex assault victim who could only communicate with grunts and gestures).

6. Finlay, WM & E. Lyons. “Acquiescence in Interviews with People Who Have Mental Retardation.” Mental Retardation Fed. 40(1), 2002, 14029.

7. State courts are required to provide accommodations to witnesses with communications disabilities pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12132, which holds that: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity. . . .” The United States Supreme Court has made clear that the ADA applies to all state courts, see Tennessee v. Lane, 541 U.S. 509, 532 (2004), and courts across the country have held that the ADA applies not only to parties, but also to witnesses. See, e.g., In re McDonogh, 457 Mass. 512 (establishing a procedure for parties to request accommodations for witnesses, and for interlocutory appeal if the request is denied by the trial court); Blackhouse v. Doe, 24 A.3d 72 (Me. 2011) (reversing the trial court for its failure to consider a plaintiff’s request to testify by telephone due to his post-traumatic stress disorder). If a child with an intellectual disability needs accommodations in order to testify accurately, the court must provide that accommodation under the ADA.