It hardly seems contentious to suggest that the communicative, social, mobility, emotional, and other requirements of people with disabilities who are victims of crime should be met by the criminal justice system established to serve them.
Such an approach befits an equitable, accessible justice process. But as we found during recent research commissioned by the Irish Council for Civil Liberties (ICCL), for most, the reality is often very different.
At a policy level, victims of crime with disabilities are not strategically identified as a specific victim group with particular needs and concerns. In terms of criminal justice agency commitments, no structured and continuous enhanced service mechanism is provided to such victims as they pass through investigative, prosecutorial and trial stages of the process.
This is striking, particularly given recent research findings on the high levels of under-reporting and attrition rates in respect of persons with a disability as witnesses/victims. For example, the Rape Crisis Network Ireland recently analysed data on incidents of sexual abuse, disclosed by people with disabilities between 2008 and 2010. They discovered that 66 per cent of persons with disabilities who suffered sexual violence and attended Rape Crisis Centres between 2008 and 2010 did not report the abuse to a formal authority.
Another study of rape files received by the DPP between 2000 and 2004 found that 13.1 per cent (78 complainants) of the sample involved a complainant with a history of mental illness. Of these 78 specific cases, only two were prosecuted.
In some instances, rules governing procedure fail to take account of the lived experiences of many victims. For example, the criminal law governing the sexual exploitation of persons with disabilities is provided for under Section 5 of the Criminal Law (Sexual Offences) Act 1993. It covers buggery, intercourse and acts of gross indecency between males, but not unwanted sexual contact more generally.
Such an obvious gap in the criminal law jeopardises the sexual autonomy of persons with disabilities and falls short of establishing a process that punishes all forms of serious sexual abuse against such persons. In a recent case, it was alleged that an accused party forced a woman with an intellectual disability into performing the act of oral sex with him.
Such a sexual act did not come within the scope of Section 5 of the 1993 Act. Given the lack of evidence of an assault or hostile act on the part of the accused, the trial judge directed the jury to acquit the defendant, stating that the judiciary could not fill a “lacuna in the law”.
The test of witness competency in Ireland is currently inadequate to deal with the needs of the vulnerable witness. The intellectual disability organisation, Inclusion Ireland, has argued that many cases involving people with intellectual disabilities are failing to proceed because the victims are deemed incompetent either before, or when they reach, court. The test of competency currently puts too great a focus on recollection and consistency of account.
As in England and Wales, the threshold test should require a witness only to be capable of imparting relevant information to a fact finder.
Discriminatory barrier
The adversarial process itself can also be a discriminatory barrier, given its emphasis on spoken testimony, lawyer-led questioning, observation of the demeanour of a witness, the curtailment of free-flowing witness narrative, confrontation and robust cross-examination. This can be particularly difficult for those, for example, who have difficulty with long term memory recall, with communicating information, with cognitive overload, and with questioning that invites suggestibility, acquiescence and compliance.
The testimony of vulnerable witnesses may need to be elicited carefully, maintaining respect for fairness of process but also accommodating equal access to justice.
The working assumption for all criminal justice agencies should be that victims with disabilities are entitled as a minimum to the same rights of access to the justice system as other victims and witnesses. It is clear in this regard that there is a strong need to mainstream disability awareness within the training programmes of all relevant criminal justice agencies.
Such training should encompass the range of disabilities that may be encountered.
In 2009, the Ryan Report, established to inquire into child abuse in institutions of the State from 1936 onwards, for example, noted that "[C]hildren with a learning disability, physical and sensory impairments and children who had no known family contact were especially vulnerable in institutional settings … Children who were unable to hear, see, speak, move or adequately express themselves were at a complete disadvantage in environments that did not recognise or facilitate their right to be heard". Such distressing findings should act as an emboldening reference point and a powerful impetus to reform "disadvantage" in our current criminal process.
Prof
Shane Kilcommins of the School of Law at the University of Limerick is one of the authors of a recent Irish Council for Civil Liberties (ICCL) report examining supports for people with disabilities who are victims of crime. The research,
An International Review of Legal Provisions and Supports for People with Disabilities as Victims of Crime
, was supported by the Equality Authority and is available at www.iccl.ie.