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 impairments face the greatest risk of sexual assault —3 to 4.6 times the risk faced by their nondisabled peers.1 Protecting these children by prosecuting the offenders can be challenging.2
With older children with intellectual impairments, their disabilities often make their cases harder to prosecute because their tendency to comply and acquiesce in social situations can be viewed as consent.
This article addresses how to:
- assess allegations that an intellectually disabled teen consented to sexual activity, and
- determine whether the teen is legally capable of consenting.
Proving Acquiescence Does Not Equal Consent
Because teens with intellectual disabilities can be naive and easily acquiesce, they are vulnerable to sexual assault. When sexual assault cases are brought to a prosecutor’s office, there are often many facts that will support a defendant’s claim that the sexual conduct was consensual. If the child was under the age of consent, a defendant will argue it was statutory rape rather than sexual assault and therefore subject to lesser penalties.
If the child was over the legal age of consent, or if the offender was the same age as the victim, it might not be any crime at all. To protect these vulnerable children, a prosecutor must understand the complex concept of consent by a person with intellectual disabilities.
Carefully assessing consent issues is key since some older children with intellectual disabilities can consent to sexual activity. Many adults with intellectual disabilities not only engage in consensual sex but also have long-term committed relationships. Many have children and raise them with support. It is wrong to conclude that anyone with an intellectual disability is incapable of consenting to sex; rather, each case must be analyzed based on the facts. This is important not just to protect the child, but to avoid an injustice to a defendant.
Get the Facts
All cases begin by fact gathering. These cases require a more extensive investigation. In addition to the normal evidence of what happened in the alleged sexual assault, the investigative team will need to collect:
- all school evaluations and assessments of the teen’s disability during his or her life;
- the teen’s Individualized Educational Plan (“IEP”) from the school;
- evidence of the teen’s knowledge, or lack of knowledge, about sex;
- evidence of the teen’s tendency to acquiesce (or not) in similar social situations;
- other evidence of the teen’s functional age.
Every child with an IEP must be evaluated every three years. The school evaluations are important, as they detail the teen’s disability throughout the child’s life.
The evaluations provide the full scale IQ. Children with IQs below 70 are designated “intellectually impaired,” but there are extraordinary differences between an IQ of 70 and an IQ of 50. A teen with an IQ of 70 will often present with no disabilities at all, whereas the disabilities of someone with an IQ of 50 will be readily apparent. A defendant’s ability to claim with credibility that he was unaware of the teenager’s disability can be affected by the IQ number.
The evaluations also provide evidence of the teen’s functioning age. The fact that a 15 year old is functioning at school on a first grade level is a key fact to know. On the other hand, if the 15 year old is functioning at a sixth grade level, it may suggest something different.
The evaluations also describe key functions. For example:
- Can the child read and write?
- Is the child cooperative at school?
- Does the child have appropriate peer relationships?
- Are there concerns, such as safety, due to the child’s disability?
- Is the child too trusting? Too gullible?
The prosecutor needs to study the evaluations to fully understand the teen’s disability and how it might affect the ability to consent.
Individual Education Plan (IEP)
Reviewing the teen’s IEP will help the prosecutor uncover crucial information about the teen’s social and life skills, in addition to information on academics. The teen’s IEP will detail the special education services the school is providing, and goals for the student’s education in the coming year. IEPs for teens with intellectual disabilities often address issues above and beyond academics, and focus on life skills and the potential for employment. If a student is perceived as vulnerable by the school, the IEP might address safety skills, such as knowing whom to trust. If a student is completely nonassertive and acquiesces in everything, that might also be addressed in the IEP. A student may have social issues, or be the subject of bullying, and may need to learn social cues. In some cases, the IEP might even address the fact that the student is willing to do anything to have a friend. All of these facts can be important.
Teen’s Sexual Knowledge
Consent must be knowingly given, so an essential element in these cases is how much the teen knows about sex.
Learning what the teen knows about sex can be challenging. The prosecution team should interview the student’s family to find out what they know about the teen’s knowledge. Siblings may have information on how much the teen understands. Prior sexual activity, or the lack thereof, is also important. If the teen has had a prior consensual sexual relationship, then it can usually be presumed that the teen knows what sex is.
If the teen has a basic understanding of sex, how much does he or she know? Does the teen understand the risks of sex, such as pregnancy and venereal disease? And does the teen understand the fundamentals of consent, including that it is okay to say no?
If the evidence from the school and family suggests the teen does not have a thorough understanding of sex, the next step is to have an expert who works with children with intellectual disabilities interview the teen at length (detailed below).
Teen’s Ability to Say “No”
One key factor in determining whether someone can consent to sexual activity is whether the person can say “no.” Sometimes these children are so acquiescent that “no” is not a concept they grasp.
Looking at a teen’s day-to-day activities can uncover a tendency to acquiesce. Is this a child who would jump off a cliff if a caregiver told her to? The family and school staff will have ample examples of compliant behavior. The prosecutor should compile as many examples as possible.
Would this child do anything to have a friend? Again, get examples. Perhaps the student gave a treasured item or money away. Sometimes these students do anything when “dared” by other children. Interview teachers from the past few years to see if they remember anything.
Other reasons may explain the teen’s conduct. A teen who, for example, took his/her clothes off may have a problem with clothing in general, as some youth with disabilities are sensitive to fabrics, zippers, elastic or buttons. Ask the family and the school staff whether there have been times in the past where nudity was a problem. Perhaps that issue is being addressed in the student’s IEP.
Meet With the Teen
Finally, the most important fact gathering happens in person. The prosecutor should meet with the teen and make his/her own assessments. An in-person meeting is the only way to determine with confidence whether this teen would have presented as disabled to a defendant, but the prosecutor will also learn much more about the student’s personality. The prosecutor should talk about things that interest the student other than the case, such as school, the Special Olympics or a favorite baseball team. Can the teenager engage in a full conversation? After a few minutes of discussion, the prosecutor will begin to understand whether the teen is generally compliant and likely to acquiesce.
Factors Courts Consider
After collecting all evidence and understanding the full extent of the teen’s disability, the prosecutor can begin to assess whether the teen was capable of consenting to sexual activity.
Many published court opinions have considered whether an intellectually-disabled adult was capable of consenting to sex; those cases can serve as a guide for teens. Courts consider factors such as whether the individual:
- can recognize the risks and benefits of sexual activity,3
- has the information and capacity to make an informed decision,4
- has the ability to express consent,5 and
- is functioning at age level.6
In cases involving adults, the victim usually is assessed by an expert, and the expert’s testimony about the inability to consent plays a key role in the case. Experts can consider these same concepts to determine whether an older child with intellectual disabilities was capable of consenting to sex.
One Boy’s Story
After collecting all evidence, meeting with the teen, and having an expert assess the teen’s knowledge of sex, the next step is to weigh those factors against the evidence that suggests that there was consent. F.’s case shows how this works in practice.
F., a teenage boy with intellectual disabilities, was over the legal age of consent. He also had limited language ability. Only his immediate family and his special education teacher could understand him.
One day, when F. was being watched by a young man who was just a few years older than F., F.’s parents came home to find used condoms. F.’s parents asked F. if the young man had done anything to him, and F. became very uncomfortable. He did not want to talk about it, and he clearly did not want to get his caretaker in trouble. His parents were persistent, and finally he said the young man had “put his weiner in my butt.” The parents called the police.
F.’s Police Interview
F.’s video-recorded police interview was incomprehensible. The officer struggled to understand him, and the process was difficult. In the end, only a few things were clear: (1) F. willingly took off his own clothes; (2) the caretaker put his “weiner in my butt”; (3) F. “did not like it”; (4) the caretaker did not touch F.’s penis; and (5) F. did not put his “weiner” in the caretaker’s butt.
DNA tests proved the caretaker’s semen was in the condoms, and there was no semen from F. anywhere -- not in the condoms and not on the bedding. F.’s story, corroborated by the DNA, suggested the sex was not mutual since F. appeared to have received no sexual gratification.
Evidence Suggesting Consent
There was no evidence of a struggle. F. had no bruises, no internal injuries, and nothing was disturbed in the house. The parents had also recently caught F. looking at pornography on the computer. (Although he was significantly disabled, he loved computer games and he could surf the Web by typing simple words.) Even if the sex was not mutual, could it still have been consensual? If it was consensual, there was no crime because F. was over the legal age of consent and it would be wrong to prosecute the caretaker. Or was this a terrible crime where a young man had taken advantage of a vulnerable teen who was incapable of consenting?
Assessing F’s Ability to Consent
To find out if F. was capable of consenting, we collected his school assessments and IEP. We learned his IQ was in the low 50s and he was functioning largely at the level of a first grader. His IEP had a special provision concerning his potential vulnerability, and we learned that his special educator was working with him on safety issues. An issue the school had identified was that he was too trusting and needed to learn that he could trust some people but not others. They were teaching him about safety when he was assaulted.
We also learned that, as best as anyone could recall, he had never had sex education. Most states require some type of sex education, although families can opt out. However, children who are not mainstreamed in the general curriculum often get no sex education at all. That appeared to be the case with F.
Expert Analysis of F.’s Understanding
Finally, we had a psychologist who works with children with intellectual disabilities assess F.’s ability to consent to sex. F.’s father served as the interpreter, but the psychologist—an expert at working with children with verbal disabilities—was able to communicate with F. without the father’s help. The psychologist interviewed F. at length.
The psychologist’s findings were compelling and revealed that F.:
- had no idea what sex was, what a condom was, or why the babysitter put “something” on his “weiner”;
- did not know how babies were made, or how women got pregnant;
- did not know what an erection or ejaculation was;
- had never heard the word “orgasm” and had no knowledge of the concept;
- denied ever touching himself and could not understand why anyone would touch themselves except in the shower to get clean. [His parents later confirmed they had never known him to masturbate.];
- did not know why the sitter put his “weiner” in his butt or that it might have felt good to the sitter;
- had never heard of sexually transmitted diseases and did not know how they were transmitted;
- had never had any kind of sexual contact, not even kissing, with anyone;
- said the sitter did not ask him if he could put his “weiner” in his butt; rather, he just started doing it; and
- told the psychologist that what happened to him did not feel good, that he did not like it, and he did not want the sitter to do it again.
The psychologist concluded that F. was incapable of consenting to sex because he had no idea what sex was. The fact that F. was functioning in many areas at the level of a six year old was also important to determining he was incapable of consenting to sex.
It would have been easy to dismiss this case because there were so many facts that would, in an ordinary case, have suggested consent. F. was of legal age to consent to sex in Vermont; he took his own clothes off; there was no struggle; he had been caught watching pornography; and he clearly did not want to get the caretaker in trouble when the parents asked what had happened. But after weighing those facts against F.’s functional age (6) and lack of knowledge, it was impossible to believe that F. could consent to sex.
After considering all the factors and the psychologist’s opinion, we brought the charge against the defendant on the basis that F. was incapable of consenting to sex, and the defendant promptly pleaded guilty.
Not All Cases Are Equal
Each case requires a careful analysis of all the facts. The teen’s prior sexual activity, for example, can be important. While prior sexual activity of a victim is generally not admissible in a sexual assault case, prior consensual sexual activity is relevant in these cases to determine whether a teen is capable of consenting to sex. If someone has consented to sex in the past, it would seem, by definition, that that person is capable of consenting to sexual activity. These are some of the important factors that have to be considered in every case.
Once a prosecutor has determined that the teenager with intellectual disabilities is incapable of consenting to sex, there are important considerations to be made at trial. First and foremost, the prosecutor will need to determine whether the teen needs accommodations in the courtroom.
One common problem in these cases is the teen is ashamed by the “mistakes” that were made. Following a sexual assault, families and schools try to teach the teen how to avoid getting assaulted again, and the teens —just like all sexual assault victims —often blame themselves. Children with intellectual disabilities who are ashamed of what has happened may not be able to testify in court and may need to testify by video instead. The teen might also require additional accommodations to get the story out, such as using simple questions or an interpreter.
The prosecutor should work directly with the teen to identify any communication needs before trial to so that accommodations can be arranged.
With proper courtroom accommodations and a well-prepared case with extensive evidence documenting how the teen’s disabilities affect the ability to consent, a prosecutor can bring justice to these difficult cases.
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. Violence Against Adults and Children with Disabilities, available at www.who.int/disabilities/violence/en/index.html; Smith, Nancy & Sandra Harrell. Issue Brief: Sexual Abuseof Children with Disabilities: A National Snapshot. Vera Institute of Justice Center on Victimization and Safety, March 2013, reprinted in this issue, next page.
2. See previous article in this series, “Prosecuting Cases for Children with Intellectual Disabilities,” by Christina Rainville, published in the December 2012 ABA Child Law Practice.
3. State v. Reetz, 2008 WL 680226 (Iowa App.).
4. State v. Angle, 1999 WL 364564 (Ohio App. 9 Dist.).
5. People v. Zemarian, 2002 WL 1293041 *4 (Cal. App. 1 Dist.).
6. Baise v. State, 232 Ga. App. 556, 556 (1998).