April 01, 2013

Prosecuting Cases for Children on the Autism Spectrum

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 on the autism spectrum are often abused physically and sexually. While there are no formal studies assessing the level of increased risk, a disproportionate number of autistic children are abused in our county in southern Vermont each year. Some are physically abused by a parent or caregiver, usually because the adult cannot control the disabled child’s behavior and resorts to violence in frustration. We also see, year after year, children on the autism spectrum who are sexually abused. Sexual predators target children who cannot speak, a common characteristic for many autistic children.

I once had a defense lawyer tell me, in a case involving the sexual assault of a four-year-old autistic girl, that his client wanted me to know I would never be able to prosecute the case because the girl was autistic and would not be able to speak at trial. It was true that she would not be able to speak at trial, but we knew the defendant had likely targeted her for that reason, so we pressed harder. Because we were determined to go to trial regardless of the child’s disabilities, the defendant pleaded guilty; he is still in jail, years later.

A child does not need to speak to get justice: the child’s disabilities simply need to be accommodated in court. When the only witness to the abuse is a child with autism, the prosecutor needs to know how to help that child communicate to a jury.  

Understanding Autism Spectrum Disabilities

Types of autism

Nationally, one out of every 54 eight-year-old boys has been diagnosed with an autism spectrum disorder; a smaller but significant percentage of girls will receive the same diagnosis.[1] The autism spectrum ranges from “classic autism” where the children have significantly impaired cognitive abilities, low IQs, and qualitative impairments in communication skills, to Asperger’s syndrome (often referred to as “high-functioning autism”) where the children have normal IQs and sometimes have extraordinary abilities, but share many of the same disabilities that are present with “classic” autism.

Social and communication challenges

According to the Diagnostic and Statistical Manual of Mental Disorders, Version IV-Tr (“DSM”), all children on the autism spectrum have qualitative impairment in social interaction. In addition, children on the autism spectrum often have verbal communication disabilities. Many children will not be able to speak at all (nonverbal). Others may be able to speak well at times, but become mute at others (selective mutism). Some may repeat the same word or sound over and over (echolalia). Still others may talk nonstop (hyperlexia).

Regardless of their ability to speak, many children on the autism spectrum cannot engage in normal discourse: the back-and-forth of conversation is problematic, at best, for them. In addition, children on the autism spectrum have difficulty understanding nonliteral language such as expressions (“go jump in the shower” means to jump up and down while bathing). They have limited or no ability to understand sarcasm, body language, and facial expressions. None of this affects their competency to serve as witnesses; these children understand the concept of telling the truth and they report events accurately.[2]

Listening to autistic children

Dr. Dean Mooney is a nationally-renowned child psychologist who specializes in treating children on the autism spectrum. Dr. Mooney serves on a number of boards of national autism organizations, has published a book on the topic, and runs a summer camp for children on the autism spectrum. He is also one of the founders of a prominent child advocacy center in Vermont. Mooney became involved after he learned that sexual abuse cases were not being prosecuted because of a misperception that autistic children were not reliable reporters. As Mooney puts it, the children were not bad reporters, the system was a bad listener. Mooney explains that autistic children can communicate; we just need to know how to listen.

Why Children on the Autism Spectrum Have an Elevated Abuse Risk

Inability to recognize risks

One of the first things a prosecutor must understand is why children on the autism spectrum are victimized. We frequently see children throughout the autism spectrum who are victims of sex crimes; the reasons can be complex. Some predators target autistic children because they cannot call for help or will have difficulty reporting what happened. As Mooney explains, children on the autism spectrum are sometimes victimized because their disabilities prevent them from recognizing risks, understanding social boundaries, and knowing what to do when things go wrong.

Undeveloped social skills

We see autistic children who were sexually assaulted, for example, after the child climbed on the lap of a neighbor or into the bed of a houseguest. This is the kind of typically inappropriate social behavior that children without disabilities intuitively know not to do. Children on the autism spectrum, however, cannot comprehend that it is okay to climb into a parent’s bed but not a stranger’s. They cannot distinguish that while it feels warm and safe in a parent’s bed, it might be dangerous to get into bed with someone else.

Mooney says that many parents soothe their autistic children with touching, and an autistic child may crave touch in the same way a parent rubs the child’s back or strokes the child’s hair. An autistic child will have no ability to comprehend that a different adult will not do the same thing, let alone that the adult might cause harm. Also, Mooney says many autistic children lack the social skills to develop relationships outside their family, and they will do anything to get a friend. All of this puts them at risk.

In one recent case, a 12-year-old autistic girl was repeatedly sexually assaulted by two men on different days. In both cases, the men were visiting her home, and the girl climbed into bed with one, and went to the other’s bedroom and climbed on his lap. It is easy to look at that behavior and draw the wrong conclusion that this was a sexually-reactive child who was looking for sex, or was a case of statutory rape. In fact, the child had no idea what sex was, and she developed a terrible case of post-traumatic stress disorder as a result of the sexual assaults. She had no idea what was happening, or that it would happen again and again. In contrast, the men -- who were both middle-aged -- felt she was coming on to them. Because of her disability, there was a complete social disconnect between her actions and how the men perceived them. This kind of social-disconnect, which is at the heart of autism, increases the risk of sexual victimization.

Poor coping skills

Another problem autistic children face is they do not know what to do when things start going wrong. We had one young autistic child who would pretend to be asleep when he was being sodomized because he did not know what to do. He had been taught to not talk back to adults. Autistic children learn rules and rigidly abide by them. They lack the ability to realize that a rule should not apply in every situation.

Inability to stop abuse

We also find autistic children tend to not be able to stop the adult’s behavior. While many children without disabilities are able to say “no!” after a lewd touch, or run away, autistic children usually end up being sexually assaulted. It seems the assaults stop only at the offender’s choice because the autistic children say nothing and do nothing to stop them. No one has taught them rules to apply in these situations; without rules, they remain frozen.

Inability to regulate behavior

Mooney offers another reason why children on the autism spectrum get abused: their behavior can be perceived as annoying. When a child cannot regulate his/her behavior, and then misses the social cues to understand someone is getting angry, physical and sexual abuse can result.

For these reasons, children on the autism spectrum are especially at risk. This is why, year after year, we have a disproportionate number of children on the spectrum who are physically or sexually abused. In a perfect world, we would expect one of every 88 child sexual or physical abuse cases to have a victim on the autism spectrum. In some years, it has been as high as one out of five in our court system.

Accommodating Communication Styles

 The key steps to prosecuting cases with autistic children are to: (1) learn how the child communicates; (2) try to figure out how that will play out in the courtroom; (3) determine what accommodations will be necessary for the child to testify; and (4) file a motion in advance of trial to raise the issue with the trial judge.

Learn how the child communicates

To protect the interests of children on the autism spectrum, the prosecutor needs to meet with the child’s caregivers, teachers, and special educators to learn how the child communicates and what accommodations are necessary. The prosecutor will need to meet with the child to practice communicating with the child until the prosecutor feels comfortable with the process.

As the Massachusetts Supreme Court stated in In re McDonough,[3] “Because of their vulnerabilities, persons with disabilities may often be crime victims, and their interests need protection no less than other victims. . . . It is incumbent on all judges and judicial staff to ensure that every person with a disability be provided with reasonable accommodation, if available, to ensure that she can be a full and equal participant in our system of justice.”

  • Approximately one-third of Mooney’s autistic child patients communicate with sign language. Unlike deaf children, these children can understand what is said to them, but, because they cannot verbalize a response, they have learned to respond using sign language.
  • Other nonverbal children communicate with body language (head nods and/or hand gestures), in writing, using a letter board to spell out responses (sometimes with someone assisting), or by cues (for one child, touching the red toy means yes, touching the blue toy means no).
  • Hyperlexic children (who cannot stop talking, and therefore cannot maintain a conversation for a different reason) can be directed with leading questions that call for a yes or no.
  • Some autistic children need sensory stimulation to be able to speak: they must be holding something, spinning an object, eating something (chewing gum) or walking around the room.
  • Other children need reduced sensory stimulation. Dimming the lights and quieting noises can help them communicate.

Child psychologists who treat children on the autism spectrum provide these accommodations in treatment, and the courts need to learn to do the same.

In preparing a case for trial, the prosecutor should consider the following:

  • Does the child need to testify outside the courtroom, by video?
  • Does the child need an interpreter or other assistance?
  • Does the child require leading questions?
  • Should the court require that the questions contain no expressions and no nonliteral language?
  • Is there anything else that will make it easier for the child to testify?
  • Does an expert need to explain the child’s communications disability to the jury, or can a caregiver or teacher explain how the child communicates?

File a motion for accommodations

After determining what accommodations the child requires, the prosecutor will need to file a motion requesting them and create a complete record for appeal. Everyone who regularly communicates with the child -- parents and other relatives, teachers, special educators -- can testify about the child’s special communication needs. The trial judge must fully understand the child's disabilities and the difficulties the child may face in the courtroom to address issues at trial as they arise. If the court denies the request for accommodation, an interlocutory appeal may be appropriate.

What Federal Law Requires

Federal law requires all courts to provide accommodations for witnesses with communication disabilities.

Federal Guide to Judiciary Policy

All federal courts are required to provide accommodations pursuant Volume 5, Section 255.20(a) of the Federal Guide to Judiciary Policy (the federal judiciary’s administrative policy manual). The guide holds that: “Each federal court is required to provide, at judiciary expense, sign language interpreters or other appropriate auxiliary aids and services to participants in federal court proceedings who are deaf, hearing-impaired, or have other communications disabilities.”[4]

Americans with Disabilities Act

Similarly, all state courts must accommodate witnesses with communications disabilities under the Americans with Disabilities Act (ADA), 42 U.S.C. §12132. The ADA 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.[5] Courts across the country have held the ADA applies not only to parties, but also to witnesses.[6]  

Courtroom Accommodations

Special accommodations

Courts have allowed witnesses with disabilities in criminal cases to testify by:

  • tapping a pencil (one tap for yes, two taps for no);[7]
  • writing out their answers;[8]
  • nodding their heads;[9]
  • using an “eye-gaze system” permitting the witness to spell out words with an interpreter;[10] or by using assistive devices to spell out their responses.[11]

At least one court has allowed a sister serving as an interpreter for a deaf and mute witness who communicated through a system of “grunts and gestures.”[12] Other courts have affirmed convictions in cases where the victim could only communicate by pointing and gesturing.[13] At least one appellate court has ruled that it may be appropriate for an autistic child to testify in a family court case by spelling words out on a keyboard while a trained teacher supported her hand, if the trial court is “satisfied that the testimony as transmitted by the facilitation is in fact the testimony of [the autistic child] herself, uninfluenced by the facilitator.”[14]

These accommodations may be required for a child on the autism spectrum, and other accommodations will likely be necessary as well. A child who cannot tolerate sensory stimulations (bright lights, crowded courtroom, courtroom noises) may have to testify by video from a quiet room. If an autistic child also has post-traumatic stress disorder, and if seeing the defendant poses a risk of triggering the child’s trauma, testifying outside the courtroom may be required.

Recently, we had a case involving a six-year-old autistic boy whose father was alleged to have struck the boy with a swimming fin, leaving a large welt.  The child's disabilities made it impossible for him to testify in a courtroom setting, or in front of his parents.  He also had great difficulty understanding nonliteral language, words with double meanings, or lengthy questions.  In addition, his disabilities caused him to have major meltdowns, sometimes involving aggression and self-harm.  We filed a motion under the ADA seeking accommodations due to his disabilities.  After an extensive hearing, the court ordered that:

  • his testimony would take place in a quiet setting outside the courtroom;
  • neither of his parents would be present;
  • he would be allowed to have a support person present;
  • all questions would be "short, simple and straightforward"; and
  • his testimony would be limited to 30 minutes total, with each side having 15 minutes.  

Leading questions

A critical accommodation for an autistic child is to permit direct examination by leading questions. This accommodation is imperative for hyperlexic children who cannot stop talking; for children who must spell out their answers (and thus, the delay diminishes their responses); and for all children on the autism spectrum who cannot provide narrative answers or cannot otherwise engage in the normal back-and-forth of a conversation.

While no cases specifically permit autistic children to be questioned with leading questions,[15] there are strong precedents in many courts permitting leading questions with witnesses with communications disabilities generally in criminal cases. For example, in People v. Augustin,[16] the California Court of Appeal affirmed the trial court’s decision to accommodate an assault victim with cerebral palsy and speech disabilities by permitting the prosecutor to ask leading questions on direct examination. The court held that, “A witness’s physical disability is a ‘special circumstance’ justifying a decision to allow counsel to ask leading questions of the witness.”

Similarly, in Trevino v. State, 783 S.W.2d 731, 733 (Tex. App. 1989), the Texas Court of Appeals affirmed the trial court’s decision to permit leading questions by the prosecution of a 15-year-old girl with learning difficulties in a case where the defendant was charged with indecency with a child.[17]

Some states have also enacted rules to permit direct examination by leading questions when the witness has a communication disability.[18] However, regardless of whether a state has enacted a rule to permit accommodations for witnesses with disabilities, all state courts are still required to provide accommodations under the ADA. As one trial judge stated:

Just because a procedure is unusual does not mean that it should not take place in a courtroom. The courts today should make every effort to open their doors to all who seek to come through them. We can no longer take the attitude that if it has not been done in the past, it should not be done in the future. The age old stereotyping of people with physical or mental disabilities or a combination of both should be dispensed with as soon as possible. The courts have come out of the dark ages with respect to the treatment of the deaf and hearing impaired, and we should likewise do so with respect to other physical and mental disabilities….[19]

Preparing the Child to Testify

Once accommodations are in place, the final step is preparing the child to testify in court. Walking into a courtroom to testify can be unnerving for anyone, but it can overwhelm a child on the autism spectrum.

Take the child to court

Mooney suggests making the child as comfortable as possible by bringing the child to court before the trial, and showing the child what the courtroom will be like. This includes having the judge (or at least someone in a black robe) on the bench; adults sitting in the jury box; and the prosecutor and opposing counsel at counsel tables.

Simulate a trial

Mooney also recommends putting the child on the stand and posing a few questions (unrelated to the case), and having lawyers for both sides say “objection!” Children, and certainly children on the autism spectrum, are not used to having adults yell “objection!” when they are trying to answer a question. For autistic children who are already struggling to communicate, this can be destabilizing. The fact that the lawyers will be saying “objection” as the child is trying to answer must be explained to the child and practiced to make the child comfortable.

Conclusion

Protecting the one of 88 children who are on the autism spectrum often requires extensive or unusual accommodations. No child on the spectrum will present in the same way, but all will have unique communication needs that will require accommodations to successfully prosecute their cases. These children greatly need the protection the judicial system provides, and their cases are worth the effort.

 

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.

Endnotes

[1] The figures from the Centers for Disease Control and Prevention are available at: www.cdc.gov/Features/CountingAutism/. Overall, the average is one of every 88 children.

[2] In terms of truthfulness, studies have shown that people on the autism spectrum “have an above average moral conscientious objection against deception.” See Jaarsma, P., P. Gelhaus and S. Welin. Living the Categorical Imperative: Autistic Perspectives on Lying and Truth Telling – Between Kant and Care Ethics. Medicine, Health Care and Philosophy (Nov. 8, 2011). Autistic children, in general, rarely lie.

[3] 457 Mass. 512, 528 (2010).

[4] The Guide to Judiciary Policy is not available to the general public, but this section has been cited by federal courts. See, e.g., Patrick v. U.S. Postal Service, 2010 WL 4879161 (D. Ariz. 2010).

[5] See Tennessee v. Lane, 541 U.S. 509, 532 (2004).

[6] See, e.g., In re McDonogh, supra, 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).

[7] People v. Tan Minh Tran, 47 Cal.App.4th 759 (1996).

[8] Ritchey v. People, 23 Colo. 314, 317-319 (1896).

[9] Trammell v. State, 53 Ala. App. 246, 247-48, 298 So. 2d 666 (1974); Commonwealth v. Brown, 451 Mass. 200 (2008).

[10] People v. Sykes, 341 Ill.App.3d 950, 973-974 (2003).

[11] Commonwealth v. Tavares, 382 Pa. Super. Ct. 317, 327 (1989).

[12] United States v. Bell, 367 F.3d 452, 463-464 (5th Cir. 2004).

[13] People v. Spencer, 119 Ill.App.3d 971, 973, 979 (1983).

[14] Matter of Luz P., 189 A.D.2d 274, 281-282 (N.Y. App.Div. 1993).

[15] Unfortunately, the paucity of cases permitting children on the autism spectrum to testify with accommodations provides further evidence of the need to educate prosecutors and judges that cases involving autistic children can, and should be, brought to trial.

[16] 112 Cal. App. 4th 445, 449, 5 Cal. Rptr. 3d 171, 175 (2003).

[17] See also Lopez v. State, 2012 WL 256103 (Tex. App.) (affirming use of leading questions in case involving aggravated sexual assault of a child where the child was in special education classes, as leading questions are permitted when needed “to develop her testimony”); State v. Rivera, 987 A.2d 887, (R.I. 2010) (affirming decision to permit adult with developmental disabilities to be questioned by leading questions in a sexual assault case); State v. Stewart, 2003 WL 21251642 *11 (Tenn. Crim. App.) (affirming decision to question “mentally challenged” adult by leading questions, noting that the victim “could not express herself as other witnesses can”); Trammell v. State, 53 Ala. App. 246. 247-248, 298 So. 2d 66 (1974) (affirming decision to allow witness who had suffered a stroke to be questioned by leading questions and to answer by nodding her head).

[18] See, e.g., Commentary to Connecticut Code Evidence § 6-8(b)(3) (noting that leading questions are permitted for “a witness who has trouble communicating, by virtue of either a disability or language deficiency); Comment to California Rule of Evidence 767 (noting that leading questions are permitted for “handicapped witnesses”).

[19] People v. Miller, 530 N.Y.S.2d 490, 491 (N.Y. City Ct. 1988).