Developmental Disabilities Bulletin

Sexual Abuse of Persons With Disabilities: A Law Enforcement Perspective [1]

Walter Coles
Royal Canadian Mounted Police

Sexual abuse affects all walks of life. As a member of the RCMP, I have investigated many cases of sexual abuse. Through experience and contact with professionals, I learned that all the new rules of evidence do not apply to persons over the age of 18. I also found out that the Alberta Child Welfare Act is also age specific. This means that persons over the age of 18 cannot receive assistance from Child Welfare workers. This may not be important to an average person, yet it becomes crucial to a disabled person. Disabled persons are often dependent on society for assistance. As an investigator of sexual assault cases involving disabled persons, I have found that the adult disabled person does not have the same protection as children. Investigating cases of sexual abuse of persons with disabilities is extremely difficult. Before this topic can be addressed, the recent amendments to the Criminal Code involving child sexual abuse are examined.

On the third of January, 1983, the Parliament of Canada removed rape as a specific offence. In its place, they created a new offence called Sexual Assault. Section 271(1) of the Criminal Code of Canada states that "everyone who commits a sexual assault is guilty of a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or b) an offence punishable on summary conviction." This new section is a vast improvement over the old rape section, which had remained unchanged since 1892. This rape law blatantly discriminated against women and read as follows: "A male person commits rape when he has sexual intercourse with a female person who is not his wife a) without her consent [and] b) with her consent if the consent i) is extorted by threats, ii) is obtained by personating her husband, [or] iii) is obtained by fraud."

This rape law explicitly allowed the husband to rape his wife. The following quote from Sexual Assault by Christine Boyle (1984) exemplifies the mind set of the male rule maker who wrote this rape law:

A law maker has seen himself very vividly in the shoes of the accused, and therefore the victim of a false complaint and also in the shoes of a man who is close to the woman assaulted as husband, father, brother and hence, as VICTIM of the assault. It seems to have been extraordinarily difficult for him to cross the sexual barrier and put himself in the position of an assaulted woman. Therefore, our laws have attached little weight to the simple goal of protecting women from assault. Women have been protected indirectly in the process of protecting the male as husband, father, brother. (Boyle, 1984)

From 1983 to 1988, the new sexual assault law proved to be effective for protecting women. Unfortunately, this new section did not protect children. Child activist groups lobbied the Federal Government to introduce new laws that specifically addressed the issue of child sexual abuse. Their efforts culminated with the introduction of Bill C-15.

On the first day of January, 1988, Bill C-15 was proclaimed. This Bill amended the Criminal Code and the Canada Evidence Act, and important changes to sexual assault were made. In addition, three new sections were created that addressed the issue of child sexual abuse. Crucial changes to the rules of evidence were implemented that affected the sexual assault laws, and three new offences dealing with children were created:

1) sexual interference, which relates to touching, for a sexual purpose involving a child under 14 years of age,

2) invitation to sexual touching involving a child under 14 years of age, and

3) sexual exploitation, which relates to sexual touching or invitation to touching of a young person (defined as person 14 to 17 years of age) by a person in a position of trust. (Martins Annual Criminal Code, 1990, pp. 133-136)

The changes in the rules of evidence have greatly helped child sexual abuse investigations. The important Criminal Code amendments are as follows:

1) consent is no longer a defense if the complainant is under 14 years of age,

2) the rules regarding recent complaint are abrogated,

3) if the complainant is at the time of the trial or preliminary inquiry under the age of 18 years, the judge may order the complainant to testify outside of the court room or behind a screen or other device that will allow the complainant not to see the accused,

4) if the complainant is under the age of 18 at the time of the alleged offence, a video made soon after the alleged offence is alleged to have been committed may be admissible in evidence if the complainant adopts the contents of the video while testifying, and

5) if the child does not understand the nature of the oath or solemn affirmation but is able to communicate the evidence, then the child may testify on promising to tell the truth. (Gibson, 1989, p. 44, note)

The Canadian Evidence Act was also amended on the first of January, 1988. Section 4(2) of the Canada Evidence Act states that the Wife or Husband of a person charged with one of the three new offenses regarding children is a competent and compellable witness for the prosecution with the consent of the person charged. This is important because normally a wife or husband cannot be forced or allowed to testify against a spouse. For example, if a man murders his next door neighbor in the presence of his wife, his wife cannot testify, even if she wants to. The only way she could testify would be if she obtained a legal divorce.

Two other amendment of the Canada Evidence Act specifically address issues relating to persons with disabilities:

1) Section 16(1), where a proposed witness is a person under fourteen years of age, or a person whose mental capacity is challenged, the court shall conduct an inquiry to determine:

a) whether the person understands the nature of an oath or a solemn affirmation; and

b) whether the person is able to communicate the evidence. (Gibson, 1989, pp. 43-16-43-17)

This section allows the defense to attack the credibility of a mentally disabled person. It also allows the defense to attack the credibility of a physically disabled person who cannot communicate in a conventional manner. An example of this be a person with cerebral palsy who has extreme difficulty communicating verbally.

The second section of the Canada Evidence Act is Section 16(4). This section states that a person who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify. Many disabled persons are extremely intelligent, yet many cannot pass the scrutiny of this section.

The Child Welfare Act is a provincial statute. Under the provisions of the Child Welfare Act, a police officer must contact Social Services if a child is in need of protection services. If the social worker determines that a child has been sexually abused, protocol dictates that the police should be called. If any person has knowledge of a child who has been sexually assaulted, he or she must call Social Services. Failure to do so could result in that person being charged for not reporting under the Alberta Welfare Act. The social worker is responsible for the welfare of the child. The police officer is responsible for the criminal code investigation. Protocols are now being developed to assure that the police and social workers of Alberta conduct joint child sexual abuse investigations.

If a child sexual abuse case is reported to the police, Social Services must be notified immediately. The child victim is normally interviewed jointly, and this interview can be videotaped. The police officer collects the first hand details from the victim and the social worker gathers important information about the victim's needs. The victim benefits from this process as he or she only has to tell the details once.

Many of these social workers are experienced with child interview techniques, especially when using anatomically correct dolls. They also have access to soft rooms. These soft rooms are interview rooms that have a one-way mirror and are designed to make the child feel at ease.

Nonetheless, when investigating a case of sexual abuse of a mentally or physically disabled adult, the investigator cannot call upon the social worker's expertise. The Child Welfare Act is not mandated to protect persons over the age of 18 years. Consequently, a mentally disabled 35 year old person who functions at the level of a 6 year old child is not afforded the same protection as a child under the age of 18 years, and the reporting obligation no longer applies if the alleged victim is over 18 years old. The reporting of disclosures is left up to the discretion of whomever received the discloser.

The Canadian justice system is patterned after English Common Law, which is based on three fundamental principles:

1) evidence will be upon oath which provides some guarantee of sincerity,

2) the witness will be present, which enables demeanor to be assessed as part of credibility and minimizes the risk of inaccuracy, and

3) the presence of the witness provides a full opportunity for cross-examination which is fundamental to a fair hearing (Robb, see this volume).

The provisions of Bill C-15 have introduced changes to these fundamental principles. The motivation for reform is worthy for it seeks to rid the law of antiquated notions about children, and yet, these reforms tinker with traditional safeguards for the accused. Bill C-15 has been attacked on the grounds that it violates Section 7 of the Charter of Rights and Freedoms. This section states that "everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Only the test of time will decide if Bill C-15 violates Section 7 of the Charter of Rights and Freedoms.

An encouraging situation has developed since January, 1988. The courts are slowly recognizing the competency of child victims to give evidence, and there is evidence that children as young as 3-1/2 years old can give convincing testimony on the stand (Bill C. 15 Update, 1990).

Investigating child sexual abuse cases are inordinately difficult. Bill C-15 made this process more palatable. As with child sexual abuse cases, investigating sexual abuse cases involving disabled persons is very intricate. The major problems are as follows:

1) the victim must be present in court,

2) the victim must give sworn evidence,

3) the victim must give first hand knowledge--no hearsay evidence [2],

4) the victim must be cross-examined--that is a manipulative device,

5) corroboration is required to obtain a conviction, and

6) recent law developments are age specific and do not protect adult disabled victims (Robb, 1989).

The right to a fair trial is guaranteed by the Charter of Rights and Freedoms, and it is unlikely that the fundamental principles of law will be changed. Therefore, the police investigator must be able to use the present legal procedures to deal with the issue of sexual abuse of adults and children who are disabled.

In my view all sex offenders should be charged. This would identify sex offenders to the police, prevent the continuation of the offence, protect the victim, and, hopefully, force the offender to seek help. This policy should also exist for offenders who are disabled themselves. Some people may feel that this would be a cruel policy. However, I feel charges will force parents or guardians to address the issue. Hopefully, the offender will receive counseling. This counseling may reveal that the disabled perpetrator is also a victim of sexual abuse.

When a mentally or physically disabled adult reports sexual abuse, the police must act quickly. The quickness must be tempered with purposefulness and experience.

For best results in sexual abuse cases involving intellectually or physically disabled adults, a team of at least two experienced investigators should be used. Crucial background information must be gathered from all persons who have dealings with the alleged victim. An assessment of the victims capabilities and limitations must be completed before the victim is interviewed. The following should be considered prior to and during the interview:

1) assess the ability of the person to understand and verbalize concepts so questions can be phrased at the correct level,

2) use concrete words instead of abstract words,

3) break down large complex questions,

4) do frequent checks to be sure the person understands, and

5) if the victim has trouble communicating, use a caregiver or professional who knows and is trusted by the victim.

This resource person can be used during the taped interview as long as the person is aware of proper police questioning procedures.

All interviews with adult disabled victims should be videotaped. If the victim is over 18 years, the videotaped interview cannot be used in court. Even so, the tape can be very useful for the investigator and for the professionals who must deal with rehabilitation.

During the interview, the investigator must never ask leading questions. An example of a leading question is ,"Did he put his finger in your vagina?" This type of question restriction turns into a "catch 22" situation when the victim has difficulty communicating, because it is obligatory for the investigator to obtain a legally acceptable disclosure. An interview containing leading questions will not be accepted by the justice system.

Charges can proceed solely on the evidence of the victim; therefore, it is crucial that the investigator determine the validity of the person's accusation. It is the responsibility of the investigator to ensure that the alleged victim has not fabricated the accusation. A validity assessment of the interview is required. The investigator can ask other experienced police officers and professionals to view the taped interview. This process will ensure that an innocent person is not charged criminally.

The next crucial step of a disabled adult sexual abuse investigation is interviewing the suspect. The suspect should not be informed of the investigation until just before he or she is interviewed. This surprise factor may prevent the suspect from fabricating a detailed alibi or influencing the victim.

Interrogation techniques vary from investigator to investigator. Even so, the Charter of Rights and Freedoms sets out procedures that must be followed if a police warned statement is going to be accepted as evidence. The accused must be read a police warning and his charter rights to consult a lawyer. This warning must be read to the suspect at the commencement of the interrogation. If the accused is advised by his lawyer not to talk to the police, then any subsequent confession will most probably not be admitted into evidence. If the accused wishes to provide a police warned statement, then the skills of the investigator will determine if a confession is obtained or not.

The accused can make an exculpatory or inculpatory statement to the police. An exculpatory statement is when the accused denies any wrongdoing. An inculpatory statement is when the accused confesses to the offence. it is important for the investigator to obtain written exculpatory statements from suspects. This may seem counter-productive, yet valuable information can be extracted from exculpatory statements. Statements by the accused may be proven false later, and these false statements may be used to discredit the accused during trial.

The videotape of the victim is often very powerful. During some point in the interrogation, the investigator can ask the suspect if he or she wishes to view the videotape. This process may lead to a confession by the suspect. Also, the videotape may be viewed by the suspect's lawyer. This process could lead to a guilty plea which will save the victim the ordeal of testifying.

The polygraph is a useful investigational aid. Results of a polygraph tests are not admissible as evidence, yet it is still very effective.

The court process can be very difficult for many victims. It becomes doubly difficult if the victim is mentally or physically disabled. It is important that the court process be explained to victim, and a court visit is a very good way to ease the anxiety of the witness. Also, court protocol should be explained in plain understandable language. A victim services unit should be used; unfortunately, many rural areas do not have victim service units. In these situations, the investigator must undertake the added responsibility of court preparation.

The taped interview of the disabled victim can be viewed by the prosecutor, and it is beneficial if the prosecutor has a pretrial interview with the victim. This will enable the victim to become acquainted with the prosecutor, which will ease the witness' anxiety. The victim should view the videotaped interview just before the trial. This will help refresh the memory of the witness.

Court preparation is a crucial facet of the investigation. Everything depends on the ability of the victim to withstand the rigors of cross-examination. If the victim is unable to give evidence, then the charge against the perpetrator will be stayed or withdrawn.

Education is an excellent tool for improving the chances of a successful prosecution. Caregivers, teachers, and other professionals must understand the complexities of investigating these types of crimes. Disabled persons often disclose incidents of sexual abuse to these professionals. The police must be called immediately a disclosure is made regarding the sexual abuse of an adult disabled person. If reporting is delayed, the chances of conducting a proper investigation are reduced. At the time of the disclosure, it is critical that no leading questions be asked of the victim. The victim must communicate the facts using language, gestures, or signing that is self-generated. Once a disclosure has been received, the witness should immediately put the exact words used by the victim into writing. These notes will help the investigator during the taped interview that is conducted as soon as possible after the original disclosure.

The right to a fair trial is guaranteed by the Charter of Rights and Freedoms; however, amendments can be made to the Criminal Code that would not violate the Charter or Rights and Freedoms. Some provisions of Bill C-15 could be incorporated into a new Bill that would offer added protection for disabled adults. The following suggestions would greatly help the police investigator:

1. allowing videotape evidence for disabled adults,

2. allowing disabled adults to give evidence by promising to tell the truth, instead of an oath or solemn affirmation,

3. provisions that will allow disabled adults to give testimony outside the court room or to give their testimony behind a screen so they will not have to look at the accused,

4. developing an offence similar to sexual exploitation which is not age specific so a person in authority can be charged, and

5. provisions that will allow for the unique communication problems faced by disabled persons.

These types of investigations have unique problems that push the investigators abilities to the limit, but all is not doom and gloom. The tools of a successful investigation are available to the investigator, and present day legislation is adequate if proper techniques are used. I have seen an autistic boy give excellent evidence that resulted in a conviction. This boy and others have demonstrated to me that disabled persons can give credible evidence. Disabled persons have the right to be protected, and they have the right to live a life free of sexual abuse.

Note

Request for reprints should be addressed to Walter Coles, R.C.M.P., 913 Ash Street, Sherwood Park, Alberta T8A 2G3, Canada.

References

Bill C. 15 Update. (1990) Institute for the Prevention of Child Abuse.

Boyle, C. (1984). Sexual Assault. Toronto: Carswell Publishing Co.

Gibson, J. (1989). Canadian Criminal Code Offenses. Toronto: Carswell Publishing Co.

Martins Annual Criminal Code (1990). Aurora, Ontario: Canada Law Book Co.

Footnotes

[1] Law enforcement agents and others requiring more information about investigation and enforcement in cases that involve victims with disabilities can contact Corporal Coles directly through email at wcoles@lis.ab.ca