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IntroductionIt is well documented that people with intellectual disability experience higher levels of sexual assault than the rest of the population (Johnson, Andrew & Topp, 1988); Carmody, 1996; McCarthy and Thompson, 1996). Studies have estimated that between 50%-99% of people with intellectual disability experience sexual exploitation by the time they reach adulthood (Finkelhor, 1979, cited in Mulder,1996, p.19; Hard, 1986; Sobsey and Doe, 1991). This high level of vulnerability to sexual assault has been attributed to several factors including: emotional deprivation; social isolation; a dependent relationship with a carer; feelings of helplessness and powerlessness; ignorance about violence; repressed sexuality and susceptibility to coercion, incentives and bribery (The Roeher Institute, cited by Cattalini, 1993); Carmody, 1990). Despite the overwhelming evidence that people with intellectual disability regularly become the victims of sexual assault, few cases are prosecuted in New South Wales, Australia. As statistics about sexual assault of women with intellectual disability are not consistently collected by the police, the court system or sexual assault services in New South Wales, it is difficult to determine where women ‘drop out’ of the prosecution process, and why this occurs. In this study, we looked at the point at which a woman with intellectual disability decides to provide a statement to police because it is the crucial first step towards prosecution of a complaint. Identification of barriers that arise at this point, may provide critical information about why so few complaints result in successful prosecution. Background InformationSOCIAL FACTORS Myths about women with intellectual disability and sexual assault abound in the general community, and in the police service. A study conducted by Cockram, Jackson and Underwood (1991) found that police views “were closely aligned to community stereotypes of people with intellectual disability” (cited in Cockram, 1999). Other studies concluded that criminal justice personnel treat people with intellectual disability differently from other complainants of sexual assault (Balkin, 1981, Luckasson, 1992, cited in Cockram, 1999). Three myths that impact on the process of making a statement are: the belief that women with an intellectual disability lie (Mulder, 1996; Intellectual Disability Rights Service, 1998); that they are sexually promiscuous (Mulder, 1996); and that they cannot be reliable witnesses (Sobsey, 1997; McNulty et al, 1995, cited in Cockram, 1999). COMMUNICATION The primary evidence of a victim of sexual assault is prepared by police in the form of a statement following an interview/s with the victim. The way an interview is conducted has a big impact on the success of the statement. The literature identifies three significant barriers to effective communication in interview settings. These are a) memory, b) recall and c) suggestibility. A) Memory There is a small body of research that suggests people with mild intellectual disability (as measured by the researchers, using IQ scales) have greater difficulty acquiring, retaining and retrieving information from memory than people without intellectual disability (Glidden & Mar, 1978, in Fisher, 1990). This highlights the significance of developing techniques to elicit information from people with intellectual disability. Several studies have investigated ways to elicit information during interviews. Dent found that general questions prompt the most accuracy in recall for children with intellectual disability (Dent, 1986, cited in Feben, 1988). Fisher (1990) noted that using pictures to support questioning seemed to assist the recall of children with intellectual disability. He inferred that the pictures diminish the need to hold parts of questions in short-term memory. B) Suggestibility People with intellectual disability are more open to suggestion, acquiescence (the extent to which subjects confirm statements and their logical opposites) and confabulation (the extent to which subjects report imaginary experiences they believe to be true) than others (Tully & Cahill, 1984; Sigelman et al, 1981; Clare & Gudjonsson,1993). Leading or closed questions are particularly likely to produce errors in interviews with people with intellectual disability (Clare and Gudjonsson, 1993). C) Recall Pear & Wyatt (1914) concluded that the unprompted recall of children with mild intellectual disability was reliable, but that prompted recall was far less reliable than the recall of other children (Pear & Wyatt, 1914, in Fisher, 1990, p13). More recently, Dent (1986) studied how different interview techniques influence the responses of children with mild intellectual disability. She posited that some prompting is required for children to be able to retrieve stored information but that prompting should be general to avoid suggesting a response (Dent, 1986 in Fisher, 1990, p13). OPTIMUM INTERVIEW TECHNIQUES We know little about optimum methods for interviewing people with moderate to severe intellectual disabilities. Discussion on interview techniques, therefore, is limited to people with mild intellectual disabilities. Cognitive psychologists Fisher and Geiselman (1992) developed an interviewing model for police interviews which was designed to improve recall and accuracy. The model, called cognitive interviewing, seeks to elicit a narrative description of an event from the interviewee using only open questions and few interruptions from the interviewer. The interviewer encourages the interviewee to contextualise the event by “reliving” the incident, then the interviewee is invited to recall the incident in full from different points in the chronology related to the incident. Finally, police probe important aspects of the incident using open questions (Fisher and Geiselman, 1992, in Savidge, 1996, p. 7). Fisher and Geiselman claimed the technique elicited up to 65% more relevant crime data than traditional interrogatory techniques when tested by US police officers. A study in the UK, where the technique has been adopted by the Home Office, indicated an improvement of 14%-55% (Fisher and Geiselman, 1992, cited in Savidge, 1996, p.7). Investigative and cognitive interviewing are models of interviewing recommended in the new training course provided by the NSW Police Academy (School of Investigation and Data Management). However, police interview practice does not yet generally employ them. POLICE PROCEDURES Police procedures for responding to complaints of sexual assault are detailed in the NSW Police Services Handbook (1999) (“Handbook”), and the NSW Police Service Policy and Standard Operating Procedures for the Investigation and Management of Adult Sexual Assault (1999) (“Policy and Standard Operating Procedures”). The Policy and Standard Operating Procedures were launched at approximately the same time as the interviews for this study were taking place. Typically, the complainant’s first point of contact will be an initial response officer, who informs a duty officer. The duty officer must record details of discussions with the complainant and notify the investigations manager of the complaint. The investigations manager must allocate the complaint to a criminal investigations officer immediately. The criminal investigator will interview the complainant for the purpose of taking a statement. People with intellectual disability are entitled to have a support person present during the interview. If, following the investigation, there is sufficient evidence to charge someone, the criminal investigator will make the charge and then either prosecute directly or refer the complaint to the Office of the Director of Public Prosecutions (DPP) for committal and prosecution. The more serious types of sexual assault are prosecuted by the DPP in higher courts, the less serious ones by police in local courts. PROSECUTION GUIDELINES In determining whether to charge a person, the police have endorsed as a good practice the DPP’s Prosecution Policy and Guidelines. These guidelines indicate that ‘public interest’ is paramount in determining whether a matter should be prosecuted. ‘Public interest’ is assessed according to whether:
The discretionary factors include:
These guidelines are meant to provide police and the DPP with guidance about whether or not to proceed to prosecution. Specific guidance about how to measure ‘maturity’, ‘intelligence’ or ‘special disability’, is not provided. THE REQUIREMENT TO REPORT In cases where a person with intellectual disability has been sexually assaulted, the Handbook and the Policy and Standard Operating Procedures require police to report decisions not to take a statement from the complainant to the Senior Manager, Court Unit, Court and Legal Services. MethodologyCONDUCT OF STUDY The goal of this study was to identify barriers facing women who have an intellectual disability when making a statement about sexual assault to police. The methodology was developed and agreed upon by staff at the Intellectual Disability Rights Service (IDRS), a community legal centre in New South Wales, and the Operational Programs Branch of the NSW Police Service (Operational Programs). The format and conduct of the interviews with police personnel were also approved by Operational Programs. A qualitative in-depth interview style was selected. Semi-structured face to face interviews (individual and in small groups) were conducted with police officers and sexual assault workers in the greater Sydney area. Ten police Local Area Commands (LACs) were selected to participate in the study because services for people with an intellectual disability were located in their area. Sexual assault services in the same areas were identified and contacted for interviews, as a way of cross-referencing responses. All interviews were conducted by IDRS staff. In total, 27 sexual assault workers and 13 police officers in 7 LACs were interviewed for this study, either individually or in small groups, depending on the preference of the interviewees. Of the police, 5 were men and 8 were women. All identified as having experience in taking a statement from a woman with intellectual disability, and some had received relevant training. They were investigators, although their experiences with women with intellectual disability were not limited to their role as investigators. Of the sexual assault workers, two were men and the rest women. Several had worked in disability services in the past, and had undertaken training that related to sexual assault and people with disability, including intellectual disability. Information was also gathered from structured telephone interviews with four staff members from the predecessor of Court and Legal Services, Prosecuting Services, all of whom were male. Prosecuting Services/Court and Legal Services provide advice to police as to whether to proceed to prosecution and how to conduct the prosecution. LIMITATIONS OF THE STUDY Women with intellectual disability were not interviewed about their experience of making a statement about sexual assault because we lacked the resources to provide counselling and support in the likely event that this caused trauma. This means that the study does not identify barriers from the perspective of the women who actually encounter them, it only infers barriers from practice shortcomings, formal legal limitations and the observations of stakeholders. A study, with appropriate ethical safeguards, based directly on the experiences of women with intellectual disabilities would provide valuable insight into those barriers that deter them from persevering with complaints. Interviews were not conducted with general duties police officers, usually the first point of contact for a complainant. While investigators spoke of their experience prior to working as an investigator, and of procedure in their stations generally, interviews with initial response officers may have provided valuable additional information. Women with intellectual disability were the focus of this study, rather than people with intellectual disability. This was to keep the size of the study manageable, as gender and age differences would require additional information and analysis. Also the existing literature focuses on the experience of women. Sexual assault workers are not usually present during police interviews and have no formal training in police procedure. Thus, their input is based on second-hand information from their clients and direct experience of the investigation process. INTELLECTUAL DISABILITY In this study, we have used “intellectual disability” as it is defined in the AAMR Definition of Mental Retardation. That is, a significant sub-average intellectual functioning (2 standard deviations below the mean) (ie below 70) existing concurrently with limitations in two or more adaptive skill areas. The assessment of adaptive is based on a score at or below the second percentile of people in the same age and cultural group as measured on a standardised adaptive behaviour scale (eg Vineland). The disability must manifest itself before the age of 18. SEXUAL ASSAULT ‘Sexual assault’ is used in this study to denote all sexual offences under the NSW Crimes Act 1900. These include: indecent assault, assault with intent to have sexual intercourse, acts of indecency, sexual intercourse procured by intimidation, coercion and other non-violent threats and incest. TAKING A STATEMENT “‘Successfully’ completing a statement” does not simply mean being interviewed or having a statement signed off, though this can be difficult. It means providing a statement that would have forensic value if the matter were to proceed to prosecution. Findings and DiscussionPRE-EXISTING FACTORS Pre-existing factors identified by police and sexual assault workers included, a) the officer’s ability to recognise and respond appropriately when a woman has an intellectual disability, b) the officer’s beliefs about a complainant’s credibility, sexual practices and capacity, and c) how the officer views his/her role in relation to victims of sexual assault. RECOGNITION AND RESPONSE TO WOMEN WITH INTELLECTUAL DISABILITY All but one of the LACs that took part in the study identified the issue of sexual assault of women with intellectual disability as a problematic aspect of their work. Sexual assault workers agreed that the legal process facing women with intellectual disability is a more challenging one than that confronting other women. Whilst the specific difficulties raised varied from situation to situation, there was a general sense of powerlessness to address them. There is confusion about what constitutes an intellectual disability, how it impacts on the victim, and how police can alter their approach so as to provide the complainant with a fair chance to make a statement that has forensic value. While police felt confident they were identifying complainants who have intellectual disability, they tended to look for “objective proofs” such a physical disability, a disability pension card, or confirmation from a support person. Most of the cases of sexual assault cited by police and sexual assault workers occurred in group home or boarding house settings, or where the complainant had higher support needs and could easily be identified. Police did not indicate any specific methods used to identify women with mild intellectual disability. We’ve dealt with a lot of women who didn’t have intellectual disability, but who had trouble communicating... who spoke in very basic terms. It is extremely important that people with intellectual disability are identified, even if their disability is mild. The interviews also indicated confusion about how to respond appropriately when a complainant has an intellectual disability. When police officers recognised a person had an intellectual disability, the way in which the statement was then taken varied greatly, with some officers going to great lengths to accommodate the woman’s needs, and others not adapting the procedure at all. I have interviewed people with a slight, slight mental disability... and you can do an interview with [them] in a normal manner just like you would with anyone else. They understand what’s going on even though they may have a disability pension (Police Officer). It can be said that people with intellectual disability, no matter how low their support needs, will require support and some adjustment to the interview process. It is not unusual for a person with intellectual disability to present in a manner that does not accurately reflect their support needs. A person may give the impression they have understood what was said because they respond appropriately. Uniformity in the way police interviews proceed is not a goal, as officers need to respond to individual needs and the situation. However, it is important to ensure that all people with intellectual disability have an equal chance to have a statement successfully taken. In order to do so, officers require additional skills, or access to qualified services for advice on how to proceed. Such services are limited in New South Wales. MYTHS ABOUT WOMEN WITH INTELLECTUAL DISABILITY They seem to get sexual very young, and have a high sex drive. Maybe they have something to prove? This makes it difficult when the cases are fair dinkum (Police Officer). The interviews revealed that, in common with the rest of the community, police officers tend to stereotype people with intellectual disability. Two myths, in particular, emerged consistently: women with intellectual disability are promiscuous; and the complainant’s story is not a credible account. The myth of sexual promiscuity, was referred to widely in the interviews. The police officer kept referring to [the victim] by the disability, and made global statements that were incorrect, like that they were highly sexed (Sexual Assault Worker). These notions cast doubt on the credibility of the complaint and suggest that any incident that occurred was a natural consequence of the complainant’s disability. The first thing the police asked me was “Do you believe her”? The impression was that she was making it up to get attention (Sexual Assault Worker). Some police appeared to be reluctant to take the matter seriously, or assumed that the report was either fabricated or had elements of fabrication in it. There was also consistent reference to exaggeration in stories, especially when repeat assaults were being reported. ... because of her exaggeration of things - we interviewed everyone else she had spoken to as well...mainly family, girlfriends (Police Officer). Sometimes police are unable to take an investigation any further due to a lack of evidence or other valid reasons. We are concerned, however, that the impact of myths about women with intellectual disability results in cases of sexual assault not being thoroughly investigated, or being deemed too outrageous, or exaggerated, to merit investigation. ...credibility does arise because some victims’ statements raise concern [and sometimes they] indicate false complaints in the past. This applies generally but we have seen it in a number of cases involving people with intellectual disability and more often than with normal people (Prosecuting Services). The interviews clearly indicated that police’ assessments of complainant credibility influence their decision to take a statement and to proceed to prosecution. [She had] no idea of what evidence is needed, and it’s just too difficult to ask the questions. They don’t understand. As a result the police can’t do anything, and the women can’t be a witness because they are not credible (Police Officer). Courts distinguish between evidence about credibility and about the substantive issues. The police, however, take credibility and the substantive elements into account together when weighing how to proceed. Police use their assessment of credibility to determine the time and resources, if any, to be allocated to taking a statement and investigating a complaint. If complainant credibility is used to prioritise complaints, it is easy to see how complaints by people with intellectual disability will routinely fall to the bottom of the list. While it is unrealistic to expect that police will not be influenced by their assessment of credibility, it is important that their assessments do not systematically disadvantage complainants with intellectual disability. OVER-PROTECTION OF VICTIMS It’s like sending a lamb to the slaughter: even if what was said was cut and dry, six months down the road it might not be that clear (Police Officer). One of the most frequently cited reasons for not completing a statement or proceeding to prosecution was concern that the court process would lead to excessive trauma for the complainant. Police felt that securing protection for the complainant from further sexual assault was a greater priority than prosecuting the suspect. Police, staff at prosecuting services and sexual assault workers demonstrated almost no confidence in the ability of the courts to deliver an acceptable outcome for people with intellectual disability. As a result, police frequently felt obliged to protect the woman from the trauma of the court process. None of those interviewed suggested that complainants with intellectual disability expressed a desire not to proceed with the prosecution. The decision that it was not in their interest to proceed seemed to come from the police without any exploration of complainants’ attitudes. This is inconsistent with the Prosecution Policy and Guidelines, which permit the attitude of the victim to be taken into account in determining whether to proceed to prosecution. Police need to present the range of options available to the woman, together with a clear explanation of the court process, so that she, with her support person, may make informed decisions on how to proceed. When determining whether or not to take a statement, protecting the woman from the possible trauma of going to court should not be the primary concern. Reticence to put forward cases filters the number of cases proceeding to trial, thus limiting the extent to which courts are exposed to and are forced to cater for witnesses with intellectual disability. FORMAL FACTORS Some police cited technical impediments as reasons for not taking statements. ASSESSMENT OF CAPACITY TO GIVE EVIDENCE We always explore why a statement wasn’t taken... it is always entwined with competence and credibility issues (Prosecuting Services). Many of the police officers indicated that some people with intellectual disability lacked capacity to make a statement. Police are directed to evaluate the degree of the victim’s handicap and to ascertain whether the victim is capable of giving a statement. This is usually achieved by direct discussion with the victim and/or any medical practitioner who is responsible for the victim’s health (Prosecuting Services). Police saw complainant capacity to give evidence in court as relevant to whether they would take a statement, proceed to prosecution or refer the complaint to the DPP. Some assessed capacity by reference to whether the person could cope with the court process and stand up to cross-examination. Others assessed capacity by reference to whether the complainant could understand the oath. The officer would have to assess whether the person was able to give evidence in court and be cross-examined. To do this [they] would have to understand the oath (Prosecuting Services). It is premature to consider whether a person has capacity to give evidence in a court at the point of deciding whether or not to take a statement or to charge the accused. A complainant is entitled to give her version of the complaint and to have it fully investigated, irrespective of whether the complaint proceeds further. Indeed, whether or not the complaint proceeds to prosecution may be influenced by the complainant’s statement. The methods for assessing capacity described to us were either irrelevant or far more exacting than those used in a court. ...coming across condescending, or with disbelief... this may be an intentional step to see how the person would stand up in court when they are cross examined (Sexual Assault Worker). Sometimes the characteristics of the complainants’ disabilities were weighed as considerations when determining whether a statement would be taken. The police felt unable to take a statement because of the client’s language skills, even though that officer had been known to take statements from women with intellectual disability before (Sexual Assault Worker). Historically, to give evidence, a person needed to be able to recognise God and the divine sanctions for being untruthful. This led to the exclusion of evidence from children and people with intellectual disability, not because they were untruthful, but because they did not understand such abstract and ethereal concepts. I tell them to use the Cheers v Porter [(1931) 46 CLR 521] test, which is the one magistrates give kids.... I ask them about the bible and religion, who god is, to get a gut feeling as to whether they’ve got enough reasoning to understand the seriousness of the statement. (Prosecuting Services). The New South Wales Evidence Act 1995 provides that people are presumed to be competent to give evidence. A person is not competent to give sworn evidence only if they cannot understand the obligation to give truthful evidence, and, even then, they may give unsworn evidence if they understand the difference between the truth and a lie and undertake not to tell lies. The Evidence Act 1995 also recognises that people may be partially competent, in that they can give rational replies to some questions but not others. Our research suggests that police still assess capacity by reference to the old common law on competence. Police also use medical reports to assess capacity. Such reports may have been prepared for other purposes or at other times and may not be relevant. In addition, the professional writing the report may not be qualified to comment on a person’s capacity to give evidence in court. People usually have a doctor who knows a lot about them: a GP or a psychologist or psychiatrist; many already have reports done... (Prosecuting Services). CONTAMINATION OF EVIDENCE Contamination of evidence is a problem...people need to be aware it is important their evidence is not contaminated...one service took the person through the allegations in front of the offender; they need to get the police straight away. We need a protocol with the care places saying if there is a complaint, this is what to do (Prosecuting Services). One of the concerns expressed by police and reiterated by sexual assault workers was that information obtained from women with intellectual disability was often contaminated by the influence of third parties, such as family members or service providers. Indicators of this were the use of language not in keeping with the complainant’s usual vocabulary, or the inclusion of words having a technical or abstract meaning that the complainant could not have understood. Evidence being corrupted is a big problem. You have to be very careful that the statement is in the person’s own words, not what the doctor or the family have said (Police Officer). It is important police do not automatically assume that evidence is contaminated simply because the language of the complainant indicates they have gone through the story with somebody else. Anyone who repeats a story may change the language they use and even adopt the language of a third party where it more clearly expresses what they meant to convey. The fact that a person with intellectual disability may reveal the intervention of a third party does not mean that the complaint is fabricated or that the statement has no forensic value. Rather, an effort must be made to identify the extent of external influence and its ramifications for the criminal investigation. The police stressed the importance of calling them promptly following a disclosure and not going over the incident(s) with the complainant. Because the women have to talk so much to get someone to believe them...when they tell someone though, they are not believed, so they have to tell more people. They consult with friends, support workers, family - lots of people get involved (Sexual Assault Worker). In other words, police may be hindered because of the difficulties a woman experiences in gaining the support she needs to make a statement to police. REQUIREMENT OF THE JUSTICES ACT The Justices Act 1902 provides, with some exceptions, that prosecution evidence in committal proceedings must be made in written statements. It also provides that a statement is not admissible unless it contains the endorsement: “This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.” (s48C(1)(a)(i)). One interviewee noted that some police do not take a statement if the complainant does not understand the endorsement, while another said that the complexity of the endorsement did not present a practical barrier to taking a statement. The endorsement is written in complex language and it is likely that many people could not understand it, not just those with intellectual disability. There would be merit in simplifying it so that it is understandable by anyone making a statement. The current endorsement should be recognised as a barrier to the provision of evidence by a person with intellectual disability. INTERVIEWING TECHNIQUES They can’t get a clear picture of chronological order - no idea of time, days or date.... When you ask, “tell me what happened”, you get back “he did it” to describe a period of six hours. They have no idea what evidence is needed and it’s too difficult to ask the questions (Police Officer). Our interviews demonstrated that techniques used by police to interview complainants with intellectual disability were not consistent. Police tended to work intuitively and on the basis of previous experience with people with intellectual disability. This produced different results. Some used the same communication strategies they employed for children or with people of non-English speaking backgrounds. Others were intentionally harsh to test whether the person would be able to stand up to cross-examination. Still others bypassed the person with intellectual disability and relied on the statements of carers or other witnesses. Research into techniques for interviewing people with intellectual disability demonstrates the damage that inappropriately framed questioning can have on recall. Obtaining sufficient and accurate evidence is an extremely difficult task requiring skill and planning. Police generally valued the contribution of support people during interviews as interpreters and supports for complainants, when available. The input of sexual assault workers was also regarded highly. Our research suggests that police may rely on others (witnesses, support people) to the exclusion of the complainant. It’s much like dealing with children - actually you have to deal with a parent or a guardian (Police Officer). This is inconsistent with the NSW Charter of Victim Rights. Police should try to involve the complainant in the investigation and prosecution of the complaint. This can be done with the assistance of a support person, if one is available. EXTERNAL FACTORS Police indicated that their approach to taking a statement was influenced by some factors over which they had no control. INAPPROPRIATE COMPLAINTS PROMPTED BY SERVICE PROVIDERS A man had said to one of the women [with an intellectual disability] ‘rub my groin’, and the worker had to report it. They just aren’t using discretion (Police Officer). Police expressed frustration at the policies of some disability services that require staff to report all sexual incidents. Police regarded complaints as inappropriate if they were minor or if they involved consensual activity. They reported that service providers did not discriminate between these and serious incidents and seemed to regard reporting to police as a “butt-covering exercise” (Police Officer). Some complaints appeared to be motivated and pursued by service providers rather than the purported complainant. There is some inconsistency between police concern over possible contamination of evidence and their desire for service providers to vet potential complaints. There is also a danger that service providers may not be equipped to determine whether a complaint should be reported to the police. A balance needs to be found, where service users are not subjected to excessive police oversight and the Police Service is not used to the exclusion of proper service management. CHARACTERISTICS OF THE ACCUSED I heard things such as “we are not going to record this statement in the data base, because the offender also has an intellectual disability, and then they referenced Section 38 of the Crimes Act, or something.” (Sexual Assault Worker). A sense of resignation, or a belief that little legal redress is available, was noted when the accused had a disability. The assaults were happening in a privately run boarding house, with one of the residents assaulting another. It went to the police. The woman was quite clear what happened but the police did not take action, citing the reason that they couldn’t, as the offender also had an intellectual disability (Sexual Assault Worker). Police assumed that prosecution would be unsuccessful because of legal technicalities and because of the sympathy or incredulity of the jury. A number of women with intellectual disability were complaining of sexual assault by a man living there who also had an intellectual disability and cerebral palsy. It was initially assumed that he could not physically get into their rooms to assault them, even though the two women gave very similar statements. It was felt by the police that the man was in all likelihood the offender, especially as he had been found crawling across the floor into another woman’s bedroom. The case was dropped because the police felt that the jury would sympathise with the offender and not convict him. (Sexual Assault Worker). The offence was also regarded as less grave when the accused had an intellectual disability. In several cases, police felt the accused could not be held accountable for their actions. A lot of the assaults are by offenders with intellectual disability. These are matters that should be dealt with internally (Police Officer). It is appropriate that sexually offending behaviour in people with disabilities be addressed by disability service systems, either in conjunction with or as an alternative to criminal sanction. The law recognises the role of service supports by providing for the diversion of people with intellectual disabilities from the criminal justice system in appropriate cases (eg s32 Mental Health (Criminal Procedure) Act 1990 and the defence of not guilty by reason of mental illness). The prosecution guidelines applied by the Police Service confer on police considerable discretion in pursuing prosecutions. It would not be appropriate to circumscribe that discretion to prevent regard being had of a suspect’s intellectual disability. However, it is important to recognise the limitations of disability services in responding to sexual assaults by service users. First, disability services will usually have a conflict of interest. This arises as a result of having responsibilities both to the complainant and the suspect and also out of potential negligence claims if the assault occurred within the service. Second, most disability services are poorly resources and have high staff turnover. Few have the ability to manage offending behaviour effectively. If the police took the statement any further, it was seen as “creating problems for everyone else”. There is the sentiment that “ We’ll just make sure it won’t happen again” (Sexual Assault Worker). Not taking a statement or not recording the complaint has serious ramifications. If the assault is repeated, there is no formal record of earlier incidents and a disincentive for police to reveal that earlier incidents occurred, even if they remember them. Assaults cannot be tracked and may escalate without being addressed. Also, any claim by the complainant for victims compensation or funded counselling will not be supported by police records. PERCEPTIONS OF THE DPP A lot of work goes down the toilet when the DPP won’t take the case on (Police Officer). Many police were pessimistic about the likely outcome of an investigation into a complaint made by a person with intellectual disability. Overwhelmingly, there was an expectation that the DPP would not prosecute cases of sexual assault when the victim has an intellectual disability. Police were more inclined to pursue AVOs or other ways of protecting the victim. This attitude is consistent with research that suggests police are reluctant to investigate and report cases involving people with intellectual disability because they do not feel they can be successfully prosecuted (Sobsey, D, 1994). The prosecution rate of complaints of sexual assault by women with intellectual disability is certainly very low. It is worrying that this perception may dissuade police from taking statements and investigating complaints, as this only compounds the problem. ABSENCE OF SUPPORT The chances that a matter will be pursued seem to be directly linked to the level of support around that person, most notably the family members (Sexual Assault Worker). The interviews suggest that a person with intellectual disability who presents at the police station without is unlikely to have his or her statement taken or the complaint investigated. This may relate to the initial response officer’s difficulty in eliciting information about the complaint and the lack of endorsement from another person. Police may seek the input of another person, note the complaint in an incident report or do nothing at all. Whether or not you take a statement is left up to your discretion - you can create an incident report as well (Police Officer). This is unacceptable since people who do not have a support network are extremely vulnerable to sexual assault and rely on police protection and response. Procedures for the internal review of decisions not to take statements are included in the Handbook and it is necessary that data on the number of complaints that are not pursued is collected. It is also necessary to have qualified support people available for the police to contact, when necessary. RESOURCE CONSTRAINTS - TIME AND MONEY Everyone knows that if you put something on the bottom of the pile it eventually goes away (Sexual Assault Worker). A constant theme was the pressure that a lack of time and resources places on police, and its impact on their ability to adequately take statements and investigate complaints. This is a negative cycle, in that if time and money are not allocated to taking statements from people with intellectual disability, the chances for success decline, making it less likely that sufficient resources are allocated in future. ConclusionThis study demonstrates that women with intellectual disability face barriers in successfully making statements to police following a sexual assault. Although there are policies and procedures for police to follow, our research suggests that the level of awareness and implementation of these policies has been low. The launch of the new Policy and Standard Operating Procedures is encouraging, and it is hoped they will assist in raising awareness, once they are widely distributed and training is provided to investigating officers. The barriers do not rest with the NSW Police Service alone but are inextricably linked with the social environment in which women with intellectual disability live, and the nature of the criminal justice system. Co-operation between the NSW Police Service, government and non-government disability service providers, the DPP, courts and the Attorney General’s Department is essential. ReferencesBRENNAN, M. and BRENNAN, R. (1994) Cleartalk: Police Responding to Intellectual Disability. Charles Sturt University, Wagga Wagga, Australia. CARMODY, M. (1990) Sexual Assault of People with an Intellectual Disability. New South Wales Women’s Coordination Unit. Final Report. CARMODY, M. (1996) New Directions in Reducing Violence Against Women. Forum Held in Sydney, 15 April 1996. CATTALINI, H. (1993) Access to Services for Women with Disabilities who are Subjected to Violence, (Department of Prime Minister and Cabinet, Office of the Status of Women, National Committee on Violence against Women), Australian Government Publishing Service, Canberra. CLARE, I. and GUDJONSSON, G. (1993) Interrogative suggestibility, confabulation and acquiescence in people with mild learning disabilities (mental handicap): Implications for reliability during police interrogations, British Journal of Clinical Psychology, 32, 295-301 COCKRAM, J. (1999) Police Reactions to Crimes Involving People with Intellectual Disability. Paper Presented to the 35th National Conference of the Australian Society for the Study of Intellectual Disability, Sydney, September, 30.9.1999. DENT, H. (1986) An experimental study of the effectiveness of different techniques of questioning mentally handicapped child witnesses, British Journal of Clinical Psychology, 25, 13-17/ FEBEN, D. (1988) The Right to be Heard: Obtaining Evidence from Intellectually Disabled People. A Discussion Paper. Office of the Public Advocate and Attorney General’s Department, Victoria. FISHER, G. (1990) Interviewing mentally retarded children, in BARKER, P. (Ed.) Clinical Interviews with Children and Adolescents. Norton, New York. FISHER, R. and GEISELMAN, E. (1992) Memory Enhancing Techniques for Investigative Interviewing The Cognitive Interview, Charles C. Thomas, Springfield. HARD, S. (1986) Sexual Abuse of the Developmentally Disabled: A Case Study. Paper presented at the National Conference of Executives of Associations for Retarded Citizens. Omaha, Nebraska. JOHNSON, K., ANDREW, R. and TOPP, V. (1988) Silent Victims: A Study of People with an Intellectual Disability as Victims of Crime. Victoria: Office of the Public Advocate. INTELLECTUAL DISABILITY RIGHTS SERVICE (1998) Opening the Doors: Court Support for Women with an Intellectual Disability. Redfern Legal Centre Publishing, Sydney. MCCARTHY, M. AND THOMPSON, D. (1996) Sexual abuse by design: An examination of the issues in learning disability services. Disability and Society. Vol. 11, No. 2, pp. 205-217. MULDER, L. (1996) Reclaiming our Rights: Access to Existing Police, Legal and Support services for Women with Disabilities or who are Deaf or Hearing Impaired who are Subject to Violence. Department for Women, Sydney. NEW SOUTH WALES POLICE SERVICE (1999) Police and Standard Operating Procedures for Investigation and Management of Adult Sexual Assault. NSW Police Service, Sydney. NEW SOUTH WALES POLICE SERVICE (1999) New South Wales Police Service Handbook. NSW Police Service, Sydney. OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (1998). Prosecution Policy and Guidelines. Office of the Director of Public Prosecutions, Sydney. PEAR, T. and WYATT, S. (1914) The testimony of normal and mentally defective children, British Journal of Psychology, 6, 387-419. SAVIDGE, N. (1996) Investigative Interviewing. Paper presented at Investigation Techniques Conference, Royal Institute of Public Administration, Australia, 25-26 June, 1996. SIGELMAN, C. et al (1981) Asking questions of retarded persons: A comparison of Yes/No and Either/Or formats. Applied Research in Mental Retardation. Vol. 5, pp. 347-357. SIGELMAN, C. et al (1981) When in doubt, say yes: Acquiescence in interviews with mentally retarded people. Mental Retardation. Vol. 19 pp. 53-58. SOBSEY, D. and DOE, T. (1991) Patterns of sexual abuse and assault. Journal of Sexuality and Disability. Vol. 9 No. 3 pp. 243-259. SOBSEY, D. and MANSELL, S. (1992) The prevention of sexual abuse of people with developmental disabilities. Network. Vol.2, No.3 pp 8-17. SOBSEY, D. (1997) Equal protection before the law for crime victims with developmental disabilities. Impact. Vol.10, No.2, p 67. TULLY, B. and CAHILL, D. (1984) Police Interviewing of the Mentally Handicapped: An experimental Study. The Police Foundation, London.
by Jennifer Keilty and Georgina Connelly, (2000) Intellectual Disability Rights Service, Sydney, New South Wales, Australia |
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Updated September 21, 2006
©2001-2005 Intellectual Disability Rights Service Inc. (IDRS)